The opinion of the court was delivered by: SUSAN WRIGHT, Chief Judge, District
Before the Court is Plaintiff's motion for default judgment
pursuant to Fed.R.Civ.P. 55(a) (docket entry #5). After
careful consideration, and for the reasons stated below, the
motion will be denied.
On March 4, 2005, the State of Arkansas commenced this action,
alleging that Defendant Loren Troescher, who resides in
California, caused unauthorized advertisements to be transmitted
to facsimile machines located in Arkansas, in violation of the
federal Telephone Consumer Protection Act and the Arkansas
Deceptive Trade Practices Act. In support of its motion for
default judgment, the State asserts that Troescher has failed to
answer or otherwise respond the complaint within twenty days of
service as required under Fed.R.Civ.P. 12(a)(1)(A).
"Before a default can be entered, the court must have
jurisdiction over the party against whom the judgment is sought,
which also means that the party must have been effectively served with process." 10A Charles Alan Wright & Arthur Miller, Federal
Practice and Procedure § 2682 (3d. ed. 1998). On April 28, 2005,
the State, through a California process server, attempted to
serve Troescher, in person. The State reports that service was
refused, but it provides no other details regarding its initial
attempt at personal service.
The State contends that "after reasonable diligence at personal
service failed" it effected service upon Troescher pursuant to
California Code of Civil procedure § 415.20(b),*fn1
If a copy of the summons and complaint cannot with
reasonable diligence be personally delivered to the
person to be served, as specified in Section 416.60,
416.70, 416.80, or 416.90, a summons may be served by
leaving a copy of the summons and complaint at the
person's dwelling house, usual place of abode, usual
place of business, or usual mailing address other
than a United States Postal Service post office box,
in the presence of a competent member of the
household or a person apparently in charge of his or
her office, place of business, or usual mailing
address other than a United States Postal Service
post office box, at least 18 years of age, who shall
be informed of the contents thereof, and by
thereafter mailing a copy of the summons and of the
complaint by first-class mail, postage prepaid to the
person to be served at the place where a copy of the
summons and complaint were left. Service of a summons
in this manner is deemed complete on the 10th day
after the mailing.
Cal. Code Civ. P. § 415.20(b) (emphasis added).
In an effort to show compliance with § 415.20(b), the State
presents a return of service stating that a process server
delivered a summons, complaint, and exhibits to Troescher's place
of business on May 26, 2005, and "service was effected upon Sean
Roberts, person in charge." Docket entry #9, Ex. 2. A second
proof of service states that a summons, complaint, and exhibits
were mailed to Troescher's place of business on May 26, 2005, by
first-class mail, postage prepaid. Id.
The state provides no documentation regarding its efforts to
serve Troescher in person only a brief statement regarding one
failed attempt on April 28, 2005. Accordingly, the Court cannot
conclude, based on the current record, that the State exercised
reasonable diligence to effectuate personal service before
resorting to substitute service under § 415.20. Furthermore,
although the proof of service states that a server left the
summons and complaint with "Sean Roberts, person in charge", the
State provides no evidence that Sean Roberts is a person at least
18 years of age, or that the server informed him as to the
contents of the delivery. See Cal. Code Civ. P. §
417.10(requiring proof of service by affidavit of person making
service that includes facts showing that service was made in
accordance with § 415.20).
IT IS THEREFORE ORDERED that Plaintiff's motion for default
judgment (docket entry #5) is DENIED.
© 1992-2005 VersusLaw ...