Cumis Insurance Society Inc v. Clark ( 2019 )


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  •                              UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ____________________________________
    )
    CUMIS INSURANCE SOCIETY, INC.,      )
    )
    Plaintiff,              )
    )
    v.                            )                 Civil Action No. 05-1277 (PLF)
    )
    REGINALD CLARK, et al.,             )
    )
    Defendants.             )
    ____________________________________)
    MEMORANDUM OPINION AND ORDER
    In 2005, the Court entered a final default judgment against defendant Tonia
    Shuler [Dkt. No. 17]. Nearly fourteen years later, Ms. Shuler has moved to vacate that default
    judgment [Dkt. No. 183]; the plaintiff, CUMIS Insurance Society, Inc. opposes that motion [Dkt.
    No. 185]. Upon consideration of the parties’ filings, and for the reasons set forth in this
    memorandum opinion and order, the Court finds that there are factual disputes created by the
    parties’ competing affidavits, which can only be resolved at an evidentiary hearing. See Montes
    v. Janitorial Partners, Inc., 
    859 F.3d 1079
    , 1084-85 (D.C. Cir. 2017).
    In her motion to vacate the default judgment, Ms. Shuler argues that CUMIS
    failed to properly serve process on her, and that the default judgment entered against her
    therefore is void. See Motion to Vacate Order on Motion for Default Judgment (“Mot. to
    Vacate”) [Dkt. No. 183] at 1. Under the Federal Rules of Civil Procedure, a party can be
    relieved from a final judgment if the judgment is “void.” See FED. R. CIV. P. 60(b)(4). When the
    requirements for effective service have not been satisfied, “it is uniformly held that a judgment is
    void” because without effective service of process, the court does not have jurisdiction to
    adjudicate the rights of a party. Combs v. Nick Garin Trucking, 
    825 F.2d 437
    , 441 (D.C. Cir.
    1987). See also Abele v. City of Brooksville, FL, 273 F. App’x 809, 811 (11th Cir. 2008)
    (“[S]ervice of process that is not in substantial compliance with the requirements of the Federal
    Rules is ineffective to confer personal jurisdiction over the defendant, even when a defendant has
    actual notice of the filing of the suit.”) (internal citations omitted); 5B CHARLES ALAN WRIGHT,
    ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 1353 (3d ed.
    2019) (explaining that “service of process is . . . the means by which a federal court . . . asserts
    [personal] jurisdiction” over the defendant).
    The evidentiary hearing therefore will focus on resolving the factual dispute as to
    whether Ms. Shuler was personally served with process in 2005. See FED. R. CIV. P. 4(e)(2)(A)
    (an individual may be served by delivering a copy of the summons and complaint “to the
    individual personally”). 1 The Return of Service Affidavit filed in 2005 and sworn to by the
    process server, Dwayne G. Boston, says that Ms. Shuler was personally served. See Return of
    Service as to Tonia Shuler (“Return of Service”) [Dkt. No. 8]. But Ms. Shuler swears in the
    affidavit filed with her motion to vacate that she was never personally served. See Mot. to
    Vacate [Dkt. No. 183] at 3. A comparison of the details in each affidavit reveals discrepancies in
    the height, weight, and age of the person Mr. Boston swears he served, and Ms. Shuler’s
    1
    The Court’s preliminary review of CUMIS’s alternative arguments about service
    of process – that someone else was properly served, or that Ms. Shuler’s potential notice of the
    litigation would cure ineffective service – is that these arguments are not likely to succeed. See
    FED. R. CIV. P. 4(e)(2)(B) (requiring that the person served also reside at the defendant’s
    residence); Hasenfus v. Corp. Air Servs., 
    700 F. Supp. 58
    , 66 (D.D.C. 1988) (finding service was
    defective when the Return of Service indicated the papers were left with a woman only “believed
    to reside on the premises”) (emphasis in original). See also Salmeron v. District of Columbia,
    
    113 F. Supp. 3d 263
    , 269 (D.D.C. 2015) (“[P]roof of actual or constructive notice” is neither a
    “substitute for proper service” nor can it “cure . . . defective service.”).
    2
    description of herself in 2005. 2 With the record consisting solely of contradictory affidavits, the
    Court has no choice but to hold an evidentiary hearing in order to evaluate the credibility of the
    two affiants and decide as a matter of fact whether Ms. Shuler was personally served. See
    Montes v. Janitorial Partners, Inc., 859 F.3d at 1084-85. The essential witnesses at this hearing
    will be the process server, Dwayne G. Boston, and the defendant, Tonia Shuler. The parties may
    decide whether they wish to call additional witnesses.
    The parties are directed to confer with one another and submit a joint status
    report, to be filed by the plaintiff, on or before December 13, 2019 proposing a number of
    alternative, mutually agreed upon dates for the evidentiary hearing. Accordingly, it is hereby
    ORDERED that the parties submit a joint status report on or before December 13,
    2019 with proposed dates for an evidentiary hearing.
    SO ORDERED.
    _______________________________
    PAUL L. FRIEDMAN
    United States District Judge
    DATE: November 12, 2019
    2
    The Return of Service Affidavit describes the person served as 5’7” tall; Ms.
    Shuler says she is 5’3” tall. The Return of Service Affidavit describes the person served as
    weighing 165 pounds; Ms. Shuler says she weighed about 120 pounds in 2005. The Return of
    Service Affidavit describes the person served as about 45 years old; Ms. Shuler says she was 38
    years old in 2005. Compare Return of Service [Dkt No. 8]; with Mot. to Vacate [Dkt. No. 183]
    at 3.
    3
    

Document Info

Docket Number: Civil Action No. 2005-1277

Judges: Judge Paul L. Friedman

Filed Date: 11/12/2019

Precedential Status: Precedential

Modified Date: 11/12/2019