United States District Court, M.D. Georgia, Valdosta Division
LAWSON, SENIOR JUDGE
the Court is the motion of Defendant The Kingdom Group of
Companies, LLC, d/b/a The Kingdom Group, to set aside the
default judgment entered on October 12, 2017. (Doc. 8).
Defendant argues that the default judgment is void because
Plaintiff Hessmorganhouse, LLC, d/b/a HMH Consulting, did not
properly serve Defendant. Alternatively, Defendant argues
that it is entitled to relief from the judgment because
Plaintiff failed to provide Defendant notice of the default
proceedings and because the entry of default was the result
of excusable neglect. After review of the pleadings and the
documents submitted by the parties, and with the benefit of
oral argument, the Court finds that service was insufficient
and vacates the default judgment.
FACTUAL AND PROCEDURAL BACKGROUND
filed this breach of contract lawsuit against Defendant on
July 17, 2017, alleging that Defendant is indebted to
Plaintiff in the amount of $113, 818.00 plus interest, costs,
and attorney's fees. (Doc. 1). On July 24, 2017,
Plaintiff filed an executed Proof of Service form, indicating
that on July 19, 2017, Plaintiff served Defendant by
delivering a copy of the Summons and Complaint to Hannah
Miller, who the process server represented was authorized to
accept service on behalf of Defendant. (Doc. 4, p. 2). The
process server attached an addendum to the service form in
which he explained the events that transpired on the date of
alleged service. (Doc. 4, p. 3).
process server indicated that when he arrived at
Defendant's place of business, he was greeted by a woman
by the name of Erin Folsom. (Id.). He advised Ms.
Folsom that he was there to serve a lawsuit on Zachary Lewis,
Defendant's registered agent. (Id.). Ms. Folsom
stated that Mr. Lewis was not available, at which point the
process server requested to speak with someone who could
accept service on behalf of Defendant. (Id.). Ms.
Folsom left the front of the office and returned with Hannah
Miller. (Id.). Ms. Miller explained that she could
not accept service without authorization from her employer.
(Id.). She then contacted Mr. Lewis by cell phone.
(Id.). The process server and Mr. Lewis exchanged
words. (Id.). Eventually Mr. Lewis instructed the
process server to “do what you need to do and get out
of my office.” (Id.). The process server
interpreted this statement as granting authority to Hannah
Miller to accept service. (Id.). He then placed the
documents on the desk in front of Ms. Miller and departed.
failed to respond to Plaintiff's Complaint. Accordingly,
on August 11, 2017, Plaintiff filed an Application for Entry
of Default. (Doc. 6). The Clerk of Court entered default that
same date. Plaintiff filed a Motion for Default Judgment
(Doc. 7) on August 17, 2017, which this Court granted on
October 2, 2017 (Doc. 8). Defendant filed the present Motion
to Set Aside Default Judgment (Doc. 10) on November 14, 2017,
arguing that the judgment was void because Hannah Miller was
not authorized to accept service on behalf of Defendant.
Court may set aside a default judgment under Rule 60(b).
Fed.R.Civ.P. 55(c). Federal Rule of Civil Procedure 60(b)(4)
provides that a court may relieve a party from a final
judgment when a judgment is void. Insufficient service
“implicates personal jurisdiction and due process
concerns;” therefore, “where service of process
is insufficient, the court has no power to render judgment
and the judgment is void.” In re Worldwide Web
Systems, Inc., 232 F.3d 1291, 1299 (11th Cir. 2003)
(citing Varnes v. Local 91, Glass Blowers Ass'n,
674 F.2d 1365, 1368 (11th Cir. 1982) (finding a judgment void
under Rule 60(b)(4) where the defendant was not properly
served)). “The burden of proof in a Rule 60(b)(4)
motion rests with the defendant.” Id. at
to Rule 4(h), service on a corporation may be accomplished
“by delivering a copy of the summons and of the
complaint to an officer, managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process.” Fed.R.Civ.P. 4(h)(1)(B). Service
on a corporation may also be made in accordance with the
state law in which the district court is located, which in
this case is Georgia. Fed.R.Civ.P. 4(e)(1) and (h)(1)(A).
Under Georgia law, service on a corporation is to be directed
“to the president or other officer of such corporation
or foreign corporation, a managing agent thereof, or a
registered agent thereof.” O.C.G.A. §
undisputed that Zach Lewis is both Defendant's President
and registered agent. (Doc. 10-1, ¶ 1). It is further
undisputed that Plaintiff did not serve Mr. Lewis. Rather the
question is (1) whether Hannah Miller held a managerial
position that would otherwise authorize her to accept
service; or (2) whether Zach Lewis conferred authority upon
Ms. Miller to receive service in his absence. Defendant
represents that Hannah Miller served as an administrative
assistant to Nick Lewis, Defendant's Vice President, and
that her primary responsibilities were secretarial and
administrative in nature. (Id. at ¶ 3; Doc.
13-1, ¶ 4). Plaintiff, however, submits that Ms.
Miller's responsibilities extended beyond merely
secretarial, as suggested by her title of Brokerage and
Marketing Services Representative.
an employee need not be an officer of a corporation in order
to accept service, “if the employee is not an officer
or has not been expressly designated by the corporation to
receive service, it is necessary that he or she occupy some
position of managerial or supervisory responsibility within
the organization.” Murray v. Sloan Paper Co.,
212 Ga.App. 648, 649 (1994) (quoting Whatley's
Interiors v. Anderson, 176 Ga.App. 406(2) (1985))
(quotation marks omitted). Additionally, the employee's
position must “be such as to afford reasonable
assurance that [she] will inform [her] corporate principal
that such process has been served upon him.”
Id. (quotation marks omitted).
disputes that Hannah Miller held any managerial
role. Despite any title that may be conferred
upon Ms. Miller beyond that of administrative assistant, it
is clear that even she did not believe that she had the
authority to receive service on behalf of Defendant. She
specifically informed the process server that she could not
accept service without first obtaining permission from Zach
Lewis. The Court is further unpersuaded that Mr. Lewis'
statement to the process server that he “do what you
need to do and get out of my office” was sufficient to
confer authority upon Ms. Miller. In the absence of such
authority, service was invalid, and the default judgment must
be set aside.
foregoing reasons, the Court GRANTS
Defendant's Motion to Set Aside Default Judgment (Doc.
10). The default judgment entered on ...