Opinion
02 Civ. 8993 (LAK).
July 26, 2005
ORDER
Plaintiffs move for the entry of default judgments against a large number of defendants. Like so many other applications in this action, this one is not wanting for length or bulk. The length and bulk do not compensate for the substantial lack of merit.
It is axiomatic, of course, that "[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. General Consul of Bolivia, 940 F. Supp. 93, 94 (S.D.N.Y. 1996) (quoting 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2682, at 407 (1983)). Accordingly, the Court must examine the sufficiency of plaintiffs' attempted service of process.
Service of process in the federal system requires service of a summons, in the manner prescribed in Rule 4, together with a copy of the complaint. Fed.R.Civ.P. 4(c)(1); accord Omni Capital International v. Rudolf Wolff Co., 484 U.S. 97, 104 (1987); 4A WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 3D § 1093 (2002). With an exception noted below, no evidence of record indicates that a copy of the summons ever was served on any of the defendants with respect to whom or which the plaintiffs seek a default judgment. In addition, the affidavit of service included in plaintiffs' present application claims service of the second amended complaint on a number of the allegedly defaulting defendants (located in North Carolina, the Netherlands and Latvia) by Federal Express or Express Mail. Matus Aff. Ex. E ¶¶ 3-4. Plaintiffs have failed to establish that either was an authorized mode of service, even putting to one side the apparent failure to serve a copy of the summons. See Fed.R.Civ.P. 4(f), 4(h).
The exception to the lack of proof that a copy of the summons was served on any of the allegedly defaulting defendants is that the Clerk has certified that he mailed copies of the summons and second amended complaint to defendants Moore, Kelley, GoldNow Corp., and Gold-Today in Australia, return receipt requested. The return receipts attached to the mailings to defendants Kelley and GoldNow were returned to the Clerk, although the names signed to them do not correspond to the names of the addressees.
In view of the failure to prove due service of the summons on any of the allegedly defaulting defendants save Moore, Kelley, GoldNow Corp. and Gold-Today, the motion for the entry of default judgments as against them is denied. That leaves the question whether the service on the four remaining defendants was valid.
Plaintiffs' counsel appear also to be under the impression that (1) this action was commenced by the service of an order to show cause, see Matus Aff. ¶¶ 6, 14, and (2) service of the complaint in the manner prescribed by an order to show cause is sufficient to obtain jurisdiction over a defendant thus served, see id. ¶¶ 14-15. Both premises are incorrect. A federal civil action is commenced by the filing of a complaint. Fed.R.Civ.P. 3. (Indeed, since 1992, even a New York state court action is commenced by filing a summons and complaint, not by service of an order to show cause. N.Y. CPLR § 304.) An order to show cause prescribing the time and means of service of the order and supporting papers does not obviate the need for service of process in accordance with Rule 4.
Service by mailing, return receipt requested, under Rule 4(f)(2)(C)(ii) is available only "if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice . . ." The principal internationally agreed means of service is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents to which Australia is not a party. As the Court is unaware of any prohibition of service by mail under Australian law, the service on these four defendants appears to be sufficient. That, however, is not the end of the analysis.
20 U.S.T. 361.
In order to obtain a default judgment, a plaintiff must show not only effective service of process, but that the Court has obtained personal jurisdiction over the defaulting defendant. This in turn, in this case, requires proof that extraterritorial service is permitted and that the exercise of jurisdiction would be consistent with the Due Process Clause. Plaintiffs have made no attempt to make either showing.
Accordingly, plaintiffs' motion for the entry of default judgments is denied. The denial is without prejudice to renewal as to defendants Moore, Kelley, GoldNow Corp. and Gold-Today upon a showing that the Court has personal jurisdiction over those defendants and that the exercise of that jurisdiction would be consistent with the Due Process Clause. Before renewing the motion as to those defendants, the plaintiffs are urged to consider carefully whether there is any realistic chance that any default judgment that might be entered could be enforced. Moreover, as this action already is several years old and plaintiffs evidently have failed to effect service on all but four of the allegedly defaulting defendants, plaintiffs are directed to show cause, on or before August 5, 2005, why this action should not be dismissed without prejudice as against those defendants on the ground that plaintiffs have failed to make service and thereby failed to prosecute the action sufficiently as to them.
SO ORDERED.