Opinion
Civil Action No. 03-3265.
March 22, 2004
MEMORANDUM ORDER
Presently before the Court is the Defendant Dennis Carter's Motion to Quash Service of the Complaint and to Quash Affidavit of Service (Doc. No. 29) and Carter's Motion to Vacate Entry of Default by Clerk on November 12, 2003 (Doc. No. 30). For the following reasons, Carter's Motion to Quash Service of the Complaint is denied, and Carter's Motion to Vacate Entry of Default is granted.
Default against Carter was actually entered by the clerk on November 13, 2003.
I. BACKGROUND
Plaintiff is a California-based company in the business of distributing satellite television broadcasts throughout the United States. (Compl. ¶ 1.) Plaintiff alleges that Defendants are individuals who purchased pirating devices primarily designed to intercept Plaintiff's satellite broadcasts without authorization. ( Id. ¶ 7.) Plaintiff alleges that Defendants' activities violate federal telecommunication and wiretapping laws and state statutory and common law, and brings this action seeking damages and injunctive relief against Defendants' continued possession and/or use of the pirating devices. ( Id. ¶ 8.)
The issue before the Court is whether Plaintiff properly served the complaint on Carter, who is one of the Defendants. If we find that Plaintiff served the complaint on Carter, we must also decide whether to vacate the default entered against Carter on November 13, 2003, after he failed to timely answer or otherwise respond to the complaint. Plaintiff claims that it served the complaint on Carter by handing the complaint and summons to a person at Carter's residence who identified himself as Richard, Carter's cousin. In support of this claim, Plaintiff attaches an affidavit from its process server, Joseph C. O'Donovan, who states:
On June 7, 2003, I served defendant, Dennis Carter at his residence . . . by delivering a copy of the Summons and Complaint to Richard (last name refused), a cousin of Dennis Carter, who stated "Dennis was out of town for a couple of days." Richard stated "I just moved in with my cousin Dennis Carter, and I will give this to him when he gets back."
(Doc. No. 37, Ex. A.)
Carter admits that he lives at the residence where the complaint was delivered, and that he was out of town from approximately June 3, 2003, until June 7, 2003. (Doc. No. 29, Ex. D ¶¶ 2, 5-7.) However, Carter claims that he does not have a cousin named Richard, and that no one named Richard resided at his house on June 7, 2003. ( Id. ¶¶ 8-9.) Carter argues that Plaintiff's attempted service of the complaint was ineffective because Plaintiff did not serve an individual residing at Carter's house. Carter also claims that he was unaware that a lawsuit had been filed against him until he received Plaintiff's notice of request for a default judgment against him on or about November 12, 2003. Even if we find that Carter was served with the complaint, Carter asks that we set aside the default entered against him on the grounds that (1) doing so would not prejudice Plaintiff; (2) Carter has a meritorious defense to Plaintiff's allegations; and (3) Carter did not intentionally fail to respond to the complaint.
II. ANALYSIS
1. Carter's Motion to Vacate Service
Pursuant to Fed.R.Civ.P. 4(e)(1), service of a complaint may be made upon a defendant "pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State. . . ." FED. R. CIV. P. 4(e)(1). Thus, if Plaintiff served the complaint in accordance with Pennsylvania law, service was effective. Pennsylvania Rule of Civil Procedure 402(a)(2)(i) authorizes service as follows:
by handing a copy [of the complaint] . . . at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence. . . .
Therefore, to effect service under Pennsylvania law, a plaintiff need not serve an individual that resides with the defendant, so long as the defendant serves "an adult person in charge of such residence." The Pennsylvania Supreme Court has held that service is effective if there is "a sufficient connection between the person served and the defendant to demonstrate that service was reasonably calculated to give the defendant notice of the action against it." Cintas Corp. v. Lee's Cleaning Servs., Inc., 700 A.2d 915, 920 (Pa. 1997).
In this case, Carter denies that he has a cousin named Richard who was residing at his house on June 7, 2003. However, Carter does not deny that an adult named Richard was at his house on June 7, 2003, or that Plaintiff served the complaint on that person. Thus, even if we credit the statements in Carter's affidavit, we conclude that Plaintiff has demonstrated that it served an adult at Carter's residence on June 7, 2003. That person knew Carter well enough to know that he was out of town and would be returning in a few days. Under the circumstances, we find that there is a sufficient connection between the person served and Carter such that the service method used was reasonably calculated to give Carter notice of the action against him. Cintas Corp, 700 A.2d at 920. Accordingly, we will deny Carter's motion to quash service.
2. Carter's Motion to Vacate Entry of Default
In deciding whether to exercise our discretion and vacate an entry of default, we will consider the following three factors: (1) whether setting aside the entry of default will prejudice the plaintiff; (2) whether the defendant has asserted a meritorious defense; and (3) the defendant's culpability in allowing the entry of default. Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982). We do not favor default judgments, and in close cases all doubts will be resolved in favor of setting aside the default and obtaining a decision on the merits. Id.
The first and third factors favor setting aside the entry of default. Plaintiff claims that it will be prejudiced if we set aside the default because then Carter may move to dismiss the complaint for untimely service of process pursuant to Fed.R.Civ.P. 4(m). However, we have found that Plaintiff timely served the complaint on Carter. Thus, Plaintiff will not be prejudiced. Furthermore, we do not find that Carter's failure to timely respond to the complaint was "willful" or demonstrated "bad faith." See Hritz v. Woma Corp., 732 F.2d 1178, 1182 (3d Cir. 1984). While Plaintiff has shown that Carter had legal notice of the complaint, Carter contends that he did not find out that he had been named a defendant until Plaintiff moved for an entry of default against Carter. (Doc. No. 29, Ex. D ¶ 12.) Within approximately three weeks of finding out that he had been named a defendant in this matter, Carter had hired an attorney and moved to vacate the entry of default. Resolving all doubts in favor of Carter, we find that Carter was not culpable in allowing the entry of default.
A more difficult question is whether Carter has asserted a meritorious defense. To satisfy this factor, "the defendant's answer and pleadings must raise specific facts which would allow him to advance a complete defense." Mike Rosen Assocs., P.C. v. Omega Builders, Ltd., 940 F. Supp. 115, 118 (E.D. Pa. 1996) (emphasis in original). Carter has not filed an answer in this matter. In his motion to vacate entry of default, Carter suggests that Plaintiff will not be able to meet its burden of proof. However, Carter does not specifically deny any of Plaintiff's allegations. We are hesitant to grant Carter's motion to vacate the entry of default if he has no defense to the complaint. However, since we do not favor default judgments, we will grant Carter's motion, subject to the condition that he file, within 20 days, an answer or motion asserting a complete defense to Plaintiff's allegations. If Carter chooses to answer the complaint, he must also file a supporting affidavit setting forth prima facie evidence of a meritorious defense. If Carter does not file such an answer or motion within 20 days, Plaintiff may move for re-entry of default and for appropriate sanctions.
Carter does argue that Plaintiff may not bring a private cause of action under 18 U.S.C. § 2512. However, Plaintiff's complaint contains multiple counts based on other statutes. Thus, Carter has not advanced a complete defense to the complaint.
An appropriate Order follows.
ORDER
AND NOW, this 22nd day of March, 2004, upon consideration of Defendant Dennis Carter's Motion to Quash Service of the Complaint and to Quash Affidavit of Service (Doc. No. 29) and Carter's Motion to Vacate Entry of Default by Clerk on November 12, 2003 (Doc. No. 30), and all papers filed in support thereof and opposition thereto, it is ORDERED that:
1. Carter's Motion to Quash Service of the Complaint is DENIED.
2. Carter's Motion to Vacate Entry of Default is GRANTED. The Clerk is ORDERED to vacate the Entry of Default entered against Carter on November 13, 2003.
3. Carter is ORDERED to answer or otherwise respond to the Complaint within 20 days of the date of this Order.
IT IS SO ORDERED.
ORDER
AND NOW, this 22nd day of March, 2004, upon consideration of Defendant Jon Barry's Motion for More Definite Statement Pursuant to Fed.R.Civ.P. 12(e) (Doc. No. 25), and all papers filed in support thereof and opposition thereto, recognizing that motions for a more definite statement are "generally disfavored and will be granted only if a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading," Frazier v. SEPTA, 868 F. Supp. 757, 763 (E.D. Pa. 1994), and having concluded that the Complaint specifically alleges that Barry purchased an illegal pirating device ( see Compl. ¶ 20), and that each of the Defendants, including Barry, used pirating devices in violation of federal law ( see Compl. ¶¶ 31-48), and state law ( see Compl. ¶¶ 49-56), it is ORDERED that Barry's Motion for a More Definite Statement is DENIED.
IT IS SO ORDERED.
ORDER
AND NOW, this 22nd day of March, 2004, upon consideration of Defendant Bill T. Barker's Motion to Sever and/or Drop Defendant Bill Barker (Doc. No. 39), and all papers filed in support thereof and opposition thereto, having concluded that Plaintiff's claims against the Defendants do not arise out of the "same transaction, occurrence, or series of transactions or occurrences," FED. R. CIV. P. 20(a), it is ORDERED that Barker's Motion is GRANTED. "The proper remedy in case of misjoinder is to grant severance or dismissal to the improper party if it will not prejudice any substantial right." Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir. 1972). Accordingly, it is ORDERED that Plaintiff's claims against Barker are SEVERED into a separate civil action upon Plaintiff's payment of the applicable filing fee.
IT IS SO ORDERED.
ORDER
AND NOW, this 22nd day of March, 2004, upon consideration of Defendant Jon Barry's Motion to Sever and/or Drop Defendant (Doc. No. 23), and all papers filed in support thereof and opposition thereto, having concluded that Plaintiff's claims against the Defendants do not arise out of the "same transaction, occurrence, or series of transactions or occurrences," FED. R. CIV. P. 20(a), it is ORDERED that Barry's Motion is GRANTED. "The proper remedy in case of misjoinder is to grant severance or dismissal to the improper party if it will not prejudice any substantial right." Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir. 1972). Accordingly, it is ORDERED that Plaintiff's claims against Barry are SEVERED into a separate civil action upon Plaintiff's payment of the applicable filing fee.IT IS SO ORDERED.