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noting that " court may not properly enter a default judgment unless it has jurisdiction over the person of the party against whom the judgment is sought, 'which also means that he must have been effectively served with process.'"
Summary of this case from Ahn v. Inkwell Publ'g Solutions, Inc.Opinion
No. 04 Civ. 9338 (WHP).
December 20, 2005
Counsel for Record: Gil M. Coogler, Esq. White Fleischner Fino, LLP New York, NY, Counsel for Plaintiff.
John E. Lawler, Esq. Law Office of John E. Lawler, Esq. Yonkers, NY, Counsel for Defendants Lawrence S. Lawler and Patricia A. Lawler.
MEMORANDUM AND ORDER
Plaintiff Acceptance Insurance Company ("AIC") moves for a default judgment against defendants Home Medical of America, Inc. ("Home Medical"), Home Medical of New York, Inc., NMC Homecare ("NMC") and Craig W. Porter ("Porter"), the principal of each corporate entity (collectively, the "Insureds"). Specifically, AIC seeks a declaratory judgment that it has no obligation to indemnify or defend the Insureds in connection with Lawler v. New York United Hospital Medical Center, Index No. 01-06182 (N.Y.Sup.Ct., Westchester County filed Apr. 19, 2001), a medical malpractice lawsuit pending in New York State court (the "New York Action"). For the reasons that follow, AIC's motion is denied.
BACKGROUND
AIC provided commercial general liability insurance to the Insureds for the period July 29, 1998 through January 31, 2000. (Complaint ("Compl.") ¶ 12; Affidavit of Gil M. Coogler, Esq., dated July 14, 2005 ("Coogler Aff.") Ex. 3.) As a condition of coverage, AIC's policy requires the Insureds to "cooperate with [AIC]" by assisting in the defense of any litigation against them. (Coogler Aff. Ex. 3 at 16.)
The Complaint alleges that Porter resided in Morristown, New Jersey and operated each of the corporate Insureds out of offices in Cherry Hill, New Jersey and Lake Success, New York. (Compl. ¶¶ 2-3, 5-6.) Home Medical and NMC notified AIC of the New York Action in May 2001. (Compl. ¶ 13.) AIC claims that the Insureds thereafter "made their whereabouts unknown and made themselves unable to assist in their own defense in the [New York Action]." (Compl. ¶ 17.) For three and a half years, neither AIC, its counsel nor its investigators were able to communicate with or locate the Insureds but ascertained that they were no longer at their addresses in New York and New Jersey. (Compl. ¶ 16; Coogler Aff. ¶¶ 6-7 Ex. 4; Reply Affidavit of Gil M. Coogler, Esq., dated Aug. 18, 2005 ¶¶ 3-4, 6 Exs. A-B.) In fact, according to the Complaint, NMC was at all times "a fictitious business entity" and each of the corporate Insureds has ceased operations. (Compl. ¶¶ 4-5.)
AIC commenced this declaratory judgment action against the Insureds on November 29, 2004. The Complaint also names the plaintiffs in the New York Action, Lawrence S. Lawler and Patricia A. Lawler (together, the "Lawlers"), as defendants. AIC served the Lawlers on December 1, 2004 and they timely answered. Despite its prior inability to locate the Insureds, AIC tracked Porter to Frisco, Texas shortly after commencing this action. (Coogler Aff. ¶ 9.) By Order dated February 25, 2005, this Court granted AIC until May 13, 2005 to effect service. In compliance with that Order, AIC's affidavits attest to the service of each of the Insureds in Frisco on April 7, 2005. (Coogler Aff. Ex. 6.) The Insureds failed to answer or respond to the Complaint.
AIC now moves for a default judgment against the Insureds. The Lawlers oppose the motion, arguing, inter alia, that service was not properly effected on the Insureds.
DISCUSSION
The decision whether to grant a default judgment rests within the sound discretion of the district court. Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). "It is well established that default judgments are disfavored. A clear preference exists for cases to be adjudicated on the merits."Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 174 (2d Cir. 2001). The defaulting parties are entitled to have all doubts resolved in their favor. Enron Oil, 10 F.3d at 96."A court may not properly enter a default judgment unless it has jurisdiction over the person of the party against whom the judgment is sought, 'which also means that he must have been effectively served with process.'" Copelco Capital, Inc. v. Gen. Consul of Bolivia, 940 F. Supp. 93, 94 (S.D.N.Y. 1996) (quoting 10 Charles Alan Wright et al., Federal Practice Procedure: Civil 2d § 2682, at 407 (1983)); accord Local 78, Asbestos, Lead Hazardous Waste Laborers v. Termon Constr., Inc., No. 01 Civ. 5589 (JGK), 2003 WL 22052872, at *3 (S.D.N.Y. Sept. 2, 2003) ("[A] default judgment entered against the defendant by means of improper service is void under Rule 60(b)(4)."). Affidavits of service establish prima facie that service was effected or attempted in the manner described therein. Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002); Howard Johnson Int'l, Inc. v. Wang, 7 F.Supp.2d 336, 339 (S.D.N.Y. 1998).
The Federal Rules of Civil Procedure permit service on a corporation by delivering the summons and complaint "to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. 4(h)(1). Service may be effected on an individual by delivering the summons and complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
Additionally, service may be effected "pursuant to the law of the state in which the district court is located, or in which service is effected." Fed.R.Civ.P. 4(e)(1), (h)(1). The laws of both New York and Texas are analogous to the Federal Rules' own procedure for serving a corporation. See N.Y.C.P.L.R. § 311(a)(1); Tex. Bus. Corp. Act art. 2.11(A) (Vernon 2005). Moreover, New York's law regarding service on an individual largely tracks Fed.R.Civ.P. 4(e)(2), but also permits substitute service at the individual's "actual place of business." N.Y.C.P.L.R. § 308(2). Whether substitute service is made at the defendant's "dwelling place" or place of business, the plaintiff must mail the pleading directly to the defendant at his "last known residence or . . . actual place of business" within twenty days. N.Y.C.P.L.R. § 308(2). By contrast, absent leave of the court, Texas does not authorize substitute service on any individual other than the person to be served. See Tex. R. Civ. P. 106(a); Vespa v. Nat'l Health Ins. Co., 98 S.W.3d 749, 751-52 (Tex.App. 2003).
Because AIC alleges that this action arises from the Insureds' business transactions in New York (Compl. ¶¶ 3, 5, 14), this Court assumes for purposes of the present motion that New York's "long-arm statute" applies and permits AIC to serve the Insureds outside the state pursuant to New York's rules for service of process. See N.Y.C.P.L.R. §§ 302(a)(1)-(2), 313;Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165-66 (2d Cir. 2005).
The Complaint alleges that Porter was the principal of each of the corporate Insureds such that service on him would also effect service on the corporations. However, AIC did not serve Porter directly. Instead, AIC's process server attests that he delivered copies of the Summons and Complaint to "Mary Morrison, Office Manager" ("Morrison") at "5300 Town Country Blvd. #420, Frisco, TX 75034." (Coogler Aff. Ex. 6.) The affidavits of service represent that Morrison is over sixteen years old and that the address represents Porter's "usual place of business." (Coogler Aff. Ex. 6.) AIC's counsel confirms that Morrison is "Porter's office manager." (Coogler Aff. ¶ 9.) Under the above standards, AIC's service on Morrison would be effective as to the corporate Insureds if she was an officer or agent of each of them. See Fed.R.Civ.P. 4(h)(1); N.Y.C.P.L.R. § 311(a)(1); Tex. Bus. Corp. Act art. 2.11(A). Moreover, if service on Morrison is effective as to Porter, AIC's method of service would bind the corporate Insureds as well.
AIC contends that Morrison was an office manager and thus a "managing agent" of the corporate Insureds. However, AIC's counsel attests only that Morrison is "Porter's office manager." (Coogler Aff. ¶ 9.) There is no evidence that Morrison is an officer, authorized agent or even an employee of any of the corporate Insureds, which AIC alleges are no longer in business.See Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265, 273 (1980) ("Delivering the summons to a building receptionist, not employed by [the corporation], without any inquiry as to whether she is a company employee, would not be sufficient."); cf. Local 78, 2003 WL 22052872, at *4 ("Rule 4(h)(1) does not require that service be made upon a restricted class of formally titled officials, but rather permits it to be made upon a representative so integrated with the organization that he will know what to do with the papers." (quotation omitted)). Nor is there any evidence that Morrison held herself out as an individual authorized to accept service on their behalf. Cf. Old Republic, 301 F.3d at 57 ("In tendering service, the process server may rely upon the corporation's employees to identify the individuals authorized to accept service.");Evergreen Marine Corp. v. Welgrow Int'l Inc., 942 F. Supp. 201, 205 (S.D.N.Y. 1996) ("[I]t is well settled in New York that a process server is entitled to rely upon the representations of an employee who claims to be authorized to receive service of process."). Accordingly, AIC has not demonstrated that Morrison was capable of accepting service on behalf of the corporate Insureds.
Nonetheless, AIC contends that service on Morrison was sufficient as to Porter and, by extension, the corporate Insureds, because Fed.R.Civ.P. 4(e)(2) "allows for substituted service upon a person of 'suitable age and discretion.'" (Plaintiff's Reply Memorandum at 7.) Under Rule 4, such a person must be present at the defendant's "dwelling house or usual place of abode." Fed.R.Civ.P. 4(e)(2). However, AIC represents that Morrison accepted service at Porter's office, not his home. (Coogler Aff. ¶ 9.) Substitute service at a defendant's place of business is only authorized under New York law, which further requires a subsequent mailing. N.Y.C.P.L.R. § 308(2). After leaving a copy with Morrison, AIC never mailed the Summons and Complaint to Porter.
Finally, AIC cannot take advantage of New York's "redelivery" principle to establish effective service on Porter and the corporate Insureds. The redelivery doctrine applies only when the person wrongly served redelivers the notice to a person authorized to accept service "'so close both in time and space that it can be classified as part of the same act.'" Melkaz Int'l Inc. v. Flavor Innovation Inc., 167 F.R.D. 634, 641 (E.D.N.Y. 1996) (quoting McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115 (1968)). Here, there is no evidence that Morrison redelivered the Summons and Complaint to Porter. Nor is there any evidence showing that Morrison acted as a receptionist for the corporate Insureds or as Porter's personal secretary. Cf. Luv N' Care, Ltd. v. Babelito, S.A., 306 F. Supp. 2d 468, 471 (S.D.N.Y. 2004) ("The typical case involves a secretary or receptionist who is closely connected to the proper person for service and who accepts the papers on that person's behalf.");Melkaz, 167 F.R.D. at 642 (citing cases); Leo v. Gen. Elec. Co., 111 F.R.D. 407, 413 (E.D.N.Y. 1986) (citing cases). Although AIC's process server and counsel both attest that Morrison was Porter's "office manager," there is no evidence of the size of Porter's office or Morrison's role therein. See Local 78, 2003 WL 22052872, at *4 (holding that service was not effected on a corporation by delivering notice to a "warehouse manager" where plaintiff "made no effort to establish the existence or authority of the alleged 'warehouse manager'"). If, for example, the title of "Office Manager" merely connotes responsibility for the physical office, delivery on Morrison was not objectively "calculated to give the corporation[s] fair notice," Fashion Page, 50 N.Y.2d at 272, and would be ineffective as to each of the Insureds.
Accordingly, given the strong policy against default judgments and resolving all disputes in favor of the Insureds, AIC's failure to establish that service was properly effected on the Insureds necessitates denial of AIC's motion for a default judgment against them. See Copelco Capital, 940 F. Supp. at 94.
A District Court has broad discretion in addressing a deficient service of process, and may order dismissal of the claims against the unserved parties. See Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985); Estate of Ungar v. Palestinian Auth., 396 F. Supp. 2d 376, 382 (S.D.N.Y. 2005). However, a court may not dismiss such claims sua sponte without giving notice to the plaintiff. See Fed.R.Civ.P. 4(m); Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002).
Additionally, this Court notes that the Lawlers' appearance in this declaratory judgment action may counsel against a default judgment. See Maryland Cas. Co. v. Pac. Coal Oil Co., 312 U.S. 270, 273-74 (1941) (holding that injured parties possess a justiciable case or controversy against the insurer); Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 349-55 (3d Cir. 1986); Hawkeye-Sec. Ins. Co. v. Schulte, 302 F.2d 174, 177 (7th Cir. 1962) ("It would be anomalous to hold . . . that an actual controversy exists between [an injured party] and [an insurer] and yet deny [the injured party] the right to participate in the controversy."); Travelers Ins. Co. v. Monpere, No. 93-CV-0127E(F), 1997 WL 9792, at *2-3 (W.D.N.Y. Jan. 2, 1997). Other courts have refused to enter a default judgment against a defaulting insured in declaratory judgment actions such as this where the injured parties have appeared. See Nautilus Ins. Co. v. I.L.S. Gen. Contractors, Inc., 369 F. Supp. 2d 906, 908-09 (E.D. Mich. 2005); State Farm Mut. Auto. Ins. Co. v. Jackson, 736 F. Supp. 958, 962 (S.D. Ind. 1990); see also Home Ins. Co. of Ill. v. Adco Oil Co., 154 F.3d 739, 741 (7th Cir. 1998); Gulf Underwriters Ins. Co. v. Hurd Ins. Agency, No. Civ.A. 3:03CV1277(SRU), 2004 WL 2935794, at *1-2 (D. Conn. Dec. 16, 2004); Assoc. Int'l Ins. Co. v. Crawford, 182 F.R.D. 623, 629-30 (D. Colo. 1998). Rather, relying on the Supreme Court's decision in Frow v. De La Vega, 82 U.S. (15 Wall.) 552 (1872), courts enter a default against the insured under Fed.R.Civ.P. 55(a) and allow the insurer and the appearing injured party defendants to litigate the case to a judgment on the merits.
CONCLUSION
For the foregoing reasons, AIC's motion for a default judgment is denied without prejudice. AIC is directed to show cause by January 20, 2006 why the default entered by the Clerk of the Court against the Insureds should not be vacated for lack of service.AIC is directed to serve a copy of this Order on the Insureds and to retain proof of service.
SO ORDERED.