Opinion
20-CV-1627-LJV
05-19-2022
TDY INDUSTRIES, LLC, Plaintiff, v. IWY, INC., Defendant.
DECISION & ORDER
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE
On November 5, 2020, TDY Industries, LLC (“TDY”), commenced this action against IWY, Inc. Docket Item 1. TDY alleges that a truck driver employed by IWY negligently hit a utility pole located on TDY's property, causing a power outage and putting several furnaces out of service. Id.
Just before TDY's time to serve IWY expired, TDY moved for an extension of time to effect service. Docket Item 4. This Court granted that motion on February 4, 2021, and gave TDY another 90 days to serve the summons and complaint on IWY. Docket Item 5. After TDY's attempts at service again proved unsuccessful, on April 22, 2021, it moved for a second extension of time to effect service. Docket Item 6. Again, this Court granted that motion and gave TDY another 90 days to serve the summons and complaint. Docket Item 7.
On July 22, 2021, TDY moved under Federal Rule of Civil Procedure 55(a) for a default. Docket Item 8. TDY says that entry of default is appropriate here because TDY has “properly served th[e] [d]efendant in multiple ways consistent with the Federal Rules and the laws of New York, Illinois[, ] and Wisconsin” and IWY has failed to answer the complaint or appear. Id. at 1. For the reasons that follow, however, this Court concludes that none of TDY's attempts at service were valid and denies TDY's motion. The Court extends the time for TDY to effect service on IWY for another 90 days from the date of this order.
FACTUAL BACKGROUND
On November 5, 2020, TDY filed its complaint against IWY, an Illinois corporation with a principal place of business in Appleton, Wisconsin. Docket Item 1. On November 17, 2020, TDY first attempted to serve IWY by sending a certified mailing to IWY's Appleton address. Docket Item 8 at ¶ 17. Although the mailing apparently was delivered, no one at IWY signed the certification. Id. at ¶ 18. TDY then hired a process server who “attempted personal service” on IWY. Docket Item 6 at ¶ 5. That attempt also was unsuccessful, however, because IWY's Appleton address is a “temporary office space and no one present would accept service.” Id. at ¶ 6; see also Docket Item 8 at ¶ 18.
TDY next tried serving IWY in Illinois. See Docket Item 8 at ¶¶ 19-23. More specifically, after TDY “identified an additional address for [the] [d]efendant in Illinois” in January 2021, TDY's process server “left copies of the summons and [c]omplaint with the wife [sic].” Id. at ¶ 19. TDY's process server also “attempted service on the registered agent [of IWY] at another address that was identified” in Illinois. Id. at ¶ 22. The process server, however, “was met by the registered agent's wife[, ] who became physically and verbally aggressive towards the process server.” Docket Item 6 at ¶ 14; see also Docket Item 8 at ¶ 23.
TDY then sent IWY's registered agent “a letter regarding the lawsuit and requested a waiver of service pursuant to the Federal Rules of Civil Procedure.” Docket Item 8 at ¶ 24. Although that letter was delivered, IWY's agent did not sign and return the service waiver. Id. at ¶ 25. After those unsuccessful attempts to personally serve IWY and to obtain a waiver of service, TDY “served the Secretary of State in Illinois with a copy of the letter and [c]omplaint” on May 18, 2021. Id. at ¶ 26; see also Docket Item 8-5 (cover letter sent from TDY to the Illinois Secretary of State).
TDY also attempted service by newspaper publication in Wisconsin. See Docket Item 9. Specifically, TDY published the complaint in this case on three days in consecutive weeks-June 29, 2021; July 6, 2021; and July 13, 2021-in the Appleton Post Crescent, a newspaper published in Appleton, Wisconsin. Id.
Despite all those attempts at service, IWY has not answered the complaint or otherwise appeared in this action. On July 22, 2021, TDY therefore asked this Court to direct the Clerk of the Court to enter a default. Docket Item 8.
LEGAL PRINCIPLES
“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). “The Clerk of the Court must enter the default if [the] defendant fails to plead or otherwise defend in response to a properly served and filed complaint.” Doe v. Gooding, 2021 WL 5991819, at *4 (S.D.N.Y. July 29, 2021) (alterations, citation, and internal quotation marks omitted). “Although Rule 55(a) contemplates that entry of default is a ministerial step to be performed by the clerk of court, a district judge also possesses the inherent power to enter a default.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (internal citations omitted).
DISCUSSION
TDY says that it is entitled to a default because IWY failed to answer or otherwise respond to the complaint after TDY “properly served [IWY] in multiple ways.” Docket Item 8 at 1. Because neither the motion for a default nor the complaint was properly served, however, TDY's motion is denied.
I. SERVICE OF THE MOTION FOR ENTRY OF DEFAULT
As an initial matter, there is no indication that TDY ever served its motion for the entry of default on IWY. For that reason alone, this Court would deny the motion. See L. R. Civ. P. 55(a) (“The documents required for obtaining entry of default are[] . . . [a] Certificate of Service indicating that [the other documents “required for obtaining entry of default”] were served upon [the] defendant.”). But even if TDY had served the motion on IWY, its attempts at serving the summons and complaint were insufficient for the reasons set forth below.
II. SERVICE OF THE SUMMONS AND COMPLAINT
The defendant is a corporation. See Docket Item 1 at ¶ 2. Under Federal Rule of Civil Procedure 4(h)(1), a corporation may be served either “in the manner prescribed by Rule 4(e)(1) for serving an individual” 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.” Fed.R.Civ.P. 4(h)(1)(A)-(B). Under Rule 4(e)(1), an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). So under Rule 4(h)(1), a corporation may be served either by serving its officer or agent or by following state law governing service on a corporation in the state where the district court sits or where service is made.
Here, TDY attempted to serve IWY in Wisconsin and Illinois. Docket Item 8. Because this Court is located in New York, it analyzes the sufficiency of those attempts at service under the laws of New York and Wisconsin or the laws of New York and Illinois, depending on where the attempt was made. See Fed.R.Civ.P. 4(e)(1), (h)(1)(A).
A. Service by Certified Mail and Process Server in Wisconsin
TDY first tried to serve IWY in Wisconsin by certified mail. Docket Item 8 at ¶¶ 17-18. But the Federal Rules do not permit service by simply mailing the summons and complaint to the defendant in the first instance. See Accuprobe, Inc. v. Earth Search Scis., Inc., 2022 WL 595742, at *4 n.4 (S.D.N.Y. Feb. 28, 2022) (“Service by mail is insufficient under Federal Rule of Civil Procedure 4(h)(1)(B).” (collecting cases)). Nor do the laws of Wisconsin or New York. See Accuprobe, 2022 WL 595742, at *4; Geraci v. Everhart, 2009 WL 3446193, at *3 (E.D. Wis. Oct. 23, 2009); Wis.Stat. § 180.1510. TDY's first attempt at service through certified mail therefore did not suffice under any relevant law.