Opinion
Civil Action No. 00-0380-AH-M
July 20, 2000
JUDGMENT
This matter having come before the Court upon motion for summary judgment and motion to dismiss, in accordance with the findings of fact and conclusions of law entered this day, it is hereby ORDERED, ADJUDGED, and DECREED that Plaintiffs shall have and recover nothing from Defendants and that Plaintiffs' claims against Defendant National Con-Serv, Inc. are DISMISSED WITH PREJUDICE, and Plaintiffs' claim against Defendant Federal Emergency Management Agency are DISMISSED WITHOUT PREJUDICE.
ORDER
Three motions are currently pending before the Court. This action was originally filed in the Circuit Court of Baldwin County, Alabama. Plaintiffs filed this suit alleging that Defendants failed to pay claims Plaintiffs brought under an insurance policy issued under the National Flood Insurance Act. On March 23, 2000, the state court entered default judgment against FEMA. On April 24, 2000, Defendants removed the case to this Court.
I. Motion to Set Aside Default Judgment
FEMA has moved the Court to set aside the default judgment entered in the state court. (Doc. 5). "'[W]hen a case is removed the federal court takes it as though everything done in the state court had in fact been done in the federal court.'" Murray v. Ford Motor Co., 770 F.2d 461, 464 (5th Cir. 1995) (quoting Savell v. Southern Ry., 93 F.2d 377, 379 (5th Cir. 1937)). Consequently, a default judgment in a removed case stands as if it were issued by the federal court. See id.
FEMA has moved to set aside the default judgment upon three contentions: (1) the state court was without jurisdiction over this action against FEMA, (2) FEMA was not served prior to the entry of the default, and (3) the Plaintiffs failed to establish their claim or right to relief by evidence as required by Rule 55(e) of the Federal Rules of Civil Procedure. Plaintiffs have failed to respond to FEMA's motion.
FEMA contends that claims over policy coverage under the National Flood Act are within the original and exclusive jurisdiction of the United States district court within the district in which the insured property is situated. See 42 U.S.C. § 4072. Therefore, FEMA states that the state court was without jurisdiction over the matter to enter judgment against FEMA. Additionally, FEMA state that Plaintiffs did not properly serve FEMA before entry of the default judgment. Personal service is a means by which the court obtains personal jurisdiction over a defendant. See Omni Capital Int'l, Ltd. v. Rudolf Wolff Co., 484 U.S. 97 (1987). If a defendant is not properly served, any subsequent judicial proceedings with regard to that defendant are invalid unless the defendant waives challenge to personal jurisdiction. See Nagle v. Lee, 807 F.2d 435, 440 (5th Cir. 1987)
Rule 55(c) of the Federal Rules of Civil Procedure provides: "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Rule 60(b)(4) provides that a judgment shall be set aside which is void. Upon review of this matter, the Court finds that Defendant FEMA has made a sufficient showing that the default judgment should be set aside. Therefore, Defendant FEMA's motion to set aside default judgment is due to be granted. —
II. Motion to Dismiss
Defendant FEMA his filed a motion to dismiss Plaintiffs claims against FEMA contending that Plaintiffs have failed to properly serve FEMA. Rules 4(i)(1) and (2) of the Federal Rules of Civil Procedure provide that service shall be effected upon an agency of the United States by serving the United States Attorney for the district in which the action is brought, the Attorney General of the United States, and the relevant agency. FED. R. Civ. P. 4(i)(1) and (2).
Federal Rule of Civil Procedure 4(m) requires that service of the summons and complaint be made upon a defendant within 120 days of the filing of the complaint. Failure to comply with this rule will result in dismissal of the complaint without prejudice unless the plaintiff can show good cause why service was not made within that period. FED. R. Civ. P. 4(m). Plaintiff bears the burden of proving the validity of the service or of proving good cause for failure to timely effect service.See Systems Signs Supplies v. U.S. Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
Plaintiffs have failed to respond to Defendant FEMA's motion to dismiss. A review of the file indicates that Plaintiffs served only the Federal Emergency Management Service at Region IV, Koger Center — Rutgers Building, 3003 Camblee-Tucker Road, Mitigation Division, Atlanta, Georgia 30341. Defendant contends that Plaintiff failed to serve the United States attorney or the Attorney General as required under the rules.
Plaintiffs filed this action in the Circuit Court of Baldwin County on November 8, 1999. On April 24, 2000, Defendants removed the case to this Court. As noted, Rule 4(m) provides that absent good cause, a complaint will be dismissed if Plaintiffs have failed to serve a defendant within 120 days of filing the complaint.
Due to the foregoing, the Court finds that Plaintiffs have failed to meet their burden and show either that Defendant FEMA has been properly served or good cause why service could not be effected. Therefore, Defendant's motion to dismiss for failure to effect service of process is due to be granted.
III. Motion for Summary Judgment
Defendant National Con-Serv, Inc. has moved for summary judgment in this action. National Con-Serv contends that Plaintiffs complaint solely alleges breach of the insurance contract which FEMA issued under the National Flood Insurance Program. National Con-Serv states that it is not a party to the policy at issue in this case.
Plaintiffs have failed to respond to National Con-Serv's motion. On June 23, 2000, the Court advised Plaintiffs that they must respond to Defendant's motion no later than July 13, 2000, or that final judgment may be rendered in favor of Defendant. (Doc. 15). Local Rule 7.2 provides that failure to respond to a motion for summary judgment "will be considered an admission that no material factual dispute exists." Consequently, upon motion by National Con-Serv and finding that no material factual dispute exists, Defendant's motion for summary judgment is due to be granted.
IV. Conclusion
Due to the foregoing, Defendant FEMA's motion to set aside the default judgment and motion to dismiss are GRANTED. Defendant National Con-Serv's motion for summary judgment is also GRANTED.