Opinion
C. A. 5:20-4138-JMC-SVH
03-10-2021
Elaine Kelly, Plaintiff, v. Heritage Services Corporation, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge.
This matter comes before the court on the motion of Elaine Kelly (“Plaintiff”) for default judgment that was filed on February 17, 2021. [ECF No. 11]. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motion for default judgment is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court deny Plaintiff's motion for failure to properly serve Heritage Services Corporation (“Defendant”).
I. Factual and Procedural Background
Plaintiff originally filed this action against Defendant on November 30, 2020, asserting a claim for violation of the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. [ECF No. 1]. On December 4, 2020, Plaintiff's counsel served a copy of the summons, complaint, and her answers to Local Civ. Rule 26.01 Interrogatories via certified mail with return receipt requested on Defendant's registered agent, CT Corporation System, located at 2 Office Park Court, Suite 103, Columbia, South Carolina, 29223. [ECF No. 6-1]. The return receipt was signed by Lisa Culter on December 4, 2020, with no further information provided. See Id. at 2.
The complaint states “Defendant, Heritage Services Corporation is a foreign corporation organized in the State of Florida and operating under the laws of the State of South Carolina located in this judicial district at 19 Job Corps Avenue, Bamberg, SC 29003.” [ECF No. 1 ¶ 6].
Defendant has not entered an appearance in this case, nor has it filed an answer to the complaint. On February 17, 2021, Plaintiff requested an entry of default. [ECF No. 8]. The clerk entered default on the same day. [ECF No. 10]. On February 17, 2021, Plaintiff filed the instant motion for default judgment. [ECF No. 11].
II. Discussion
A. Standard of Review
After the clerk enters a defendant's default, and when the plaintiff's claim is not for a sum certain, the plaintiff must file a motion with the court to obtain default judgment. Fed.R.Civ.P. 55. “When a ‘motion for default judgment is unopposed, the court must exercise sound judicial discretion to determine whether default judgement should be entered.'” Craig v. Glob. Sol. Biz LLC, C. A. No. 2:19-00187-DCN, 2020 WL 528015, at *2 (D.S.C. Feb. 3, 2020) (citation omitted). In doing so, “the court accepts a plaintiff's well-pleaded factual allegations as true.” Broxton v. Blue Ridge in Fields, 2019 WL 3315245, at *2 (D.S.C. July 24, 2019) (citing DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 322 n.2 (4th Cir. 2008)). However, “a default is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover.” Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (citation omitted). As such, the court need not accept the plaintiff's legal conclusions and must determine whether the plaintiff's allegations support the relief sought. Id. “The party moving for default judgment must still show that the defaulted party was properly served and that the unchallenged factual allegations constitute a legitimate cause of action.” Craig, 2020 WL 528015, at *2 (citation omitted). If the court determines that service was proper and that the allegations entitle the plaintiff to relief, then it must then determine the appropriate amount of damages. Id. (citation omitted).
B. Analysis
Here, because Plaintiff has not shown that service was proper as to Defendant, the undersigned recommends Plaintiff's motion for default judgment be denied.
Pursuant to Fed.R.Civ.P. 4(h)(1), a plaintiff may serve a corporation in a judicial district of the United States either in accordance with Rule 4(e)(1) or “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant.” Rule 4(e)(1) provides that service must follow the state law for serving summons in the state where either the district court is located or where service is made. South Carolina, where both the district court is located and where service is made, permits a corporation to be served “by registered or certified mail, return receipt requested and delivery restricted to the addressee.” SCRCP 4(d)(8); see also Roche v. Young Bros. of Florence, 456 S.E.2d 897, 900 (S.C. 1995) (explaining that Rule 4(d)(8) of the South Carolina Rules of Civil Procedure “requires that the return receipt be restricted to the addressee and show acceptance by the defendant”).
Plaintiff filed with the court a copy of the return receipt of the complaint and summons that is signed and dated December 4, 2020. However, delivery was not “restricted to the addressee.” On the return receipt, no boxes next to “restricted delivery” are checked [ECF No. 6-1 at 2], and Plaintiff never states or confirms that the return receipt was sent restricted to the addressee. SCRCP 4(d)(8) and the court in Roche states that restriction to the addressee is required for service to be proper. See Langley v. Graham, 472 S.E.2d 259, 260 (S.C. Ct. App. 1996) (finding service to be improper in part because the delivery of the summons and complaint was not restricted to addressee only). Therefore, service was improper under South Carolina law and under federal law where Plaintiff has also not complied with Fed.R.Civ.P. 4(h)(1)(B), which requires personal service on the registered agent.
The court notes that the South Carolina Supreme Court has “never required exacting compliance with the rules to effect service of process, ” Roche, 456 S.E.2d at 899, and rather instructs that the court inquire into whether “the plaintiff has sufficiently complied with the rules such that the court has personal jurisdiction of the defendant and the defendant has notice of the proceedings.” Id.Here, it is unknown if the court has personal jurisdiction over Defendant or that Defendant has notice of this lawsuit. See, e.g., Scott v. Md. State Dep't of Labor, 673 Fed.Appx. 299, 304 (4th Cir. 2016) (“[T]he real purpose of service of process is to give notice to the defendant[.]”) (citations omitted).
Regarding service of process, Fed.R.Civ.P. 4(m) provides as follows:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
The complaint in this case was filed November 30, 2020, and over 90 days have elapsed without Defendant being properly served. Accordingly, pursuant to Rule 4(m), the district court may dismiss this action without prejudice or order that service be made within a specified time, absent a showing of good cause by Plaintiff for the failure to properly serve Defendant.
The Fourth Circuit has stated Rule 4(m) mandates a showing of “good cause” before an extension can be granted. That decision, Mendez v. Elliot, 45 F.3d 75 (4th Cir.1995), was based on the court's finding that the 1993 amendments to the Federal Rules of Civil Procedure worked no substantive change on Rule 4(m). See Id. at 78. After Mendez was decided, however, the Supreme Court issued its opinion in Henderson v. United States, 517 U.S. 654 (1996), in which it found that, following the “1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period, ‘even if there is no good cause shown.'” Id. at 662-63 (quoting Advisory Committee's Notes on Fed.R.Civ.P. 4, 28 U.S.C. App. at 654); see also Fed. R. Civ. P. 4(m) (amended in 2015 to shorten the time to effect service from 120 to 90 days). Mendez stands alone among the circuits in its holding that the amendments to the rule did not give the district courts the power to authorize permissive extensions in the absence of good cause. See Mann v. Castiel, 681 F.3d 368, 375 (D.C. Cir. 2012) (listing cases); see also 4B Fed. Prac. & Proc. Civ. § 1137 (4th ed.) (“As of this writing, the overwhelming majority of federal courts and dicta from the Supreme Court embrace the view that a district court has discretion under Rule 4(m) to dismiss a complaint or to allow the plaintiff to cure a defect in service of process even in the absence of good cause.”). Furthermore, since Henderson was decided, the Fourth Circuit has issued several unpublished decisions that have endorsed permissive extensions. See, e.g., Hansan v. Fairfax Cty. Sch. Bd., 405 Fed.Appx. 793, 793-94 (4th Cir. 2010) (stating that in the absence of a showing of good cause “the district court has discretion to extend the period if the plaintiff can show excusable neglect for his failure to serve”); Giacomo-Tano v. Levine, No. 98-2060, 1999 WL 976481, at *1 (4th Cir. Oct. 27, 1999) (“Even if a plaintiff does not establish good cause, the district court may in its discretion grant an extension of time for service.”); but see Chen v. Mayor & City Council of Baltimore, 546 Fed.Appx. 187 (4th Cir. 2013) (summarily affirming district court's holding that the court lacked discretion to extend Rule 4(m)'s deadline absent good cause). For these reasons, the undersigned agrees with this court's recent holdings that “even if a plaintiff fails to show good cause, the court, in some circumstances, may grant an extension of time, if it deems it to be appropriate.” Lee v. Low Country Health Care Sys., Inc., C. A. No. 1:19-02037-JMC, 2020 WL 2192781, at *2 (D.S.C. May 6, 2020) (citing Dyal v. GE Gas Turbines, C. A. No. 6:11-03238-JMC, 2013 WL 3229712, at *2 (D.S.C. June 25, 2013)); see also Smith v. Kelso, C. A. No. 2:20-0180-DCN, 2020 WL 3964806, at *3 & n.3 (D.S.C. July 13, 2020); but see Craig, 2020 WL 528015; Addison v. Amica Mut. Ins. Co., C. A. No. 5:18-3158-JMC-PJG, 2019 WL 2191795, at *3 (D.S.C. May 21, 2019) (“Consequently, the court cannot avail itself the option that appears to be offered by Rule 4(m)-that is, directing Plaintiff to effect service by a certain time-unless good cause is shown for the failure to timely serve Defendant.”), report and recommendation adopted, C. A. No. 5:18-03158-JMC, 2019 WL 4071854 (D.S.C. Aug. 29, 2019).
To the extent that Plaintiff can provide good cause for failure to properly serve Defendant, Rule 4(m) directs the court to extend the time for service for an appropriate period.
Because there is no information before the court providing any reason why Plaintiff failed to properly serve Defendant, at this time and based on this record, the undersigned recommends the district judge dismiss Plaintiff's complaint without prejudice to refile and properly serve Defendant.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Plaintiff's motion for default judgment for failure to properly serve Defendant. [ECF No. 11]. The undersigned further recommends that, absent further information provided by Plaintiff, the district judge dismiss Plaintiff's complaint without prejudice to refile and properly serve Defendant.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.” Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).