United States District Court, M.D. Louisiana
RULING AND ORDER
BRIAN A. JACKSON, Chief District Judge.
Before the Court are a Motion to Set Aside Default (Doc. 13) and a Motion to Dismiss for Insufficient Service of Process (Doc. 17), filed by Defendant G4S Secure Solutions ("G4S"). These motions seek to set aside a Clerk's entry of default against G4S, and to dismiss Plaintiff Edward Smith's action under Federal Rule of Civil Procedure ("Rule") 12(b)(5) for insufficient service of process. Smith has opposed both of G4S's motions. (Docs. 14, 19). Oral argument on the motions is not necessary. Jurisdiction is proper pursuant to 28 U.S.C. § 1331. For the reasons stated below, G4S's Motion to Set Aside Default (Doc. 13) is GRANTED, and its Motion to Dismiss for Insufficient Service of Process (Doc. 17) is DENIED.
A. Smith's Allegations and G4S's Response
Smith is an African-American male and former security officer with G4S, where he was tasked with providing security services at Womans Hospital from 2002 until he was terminated in December 2012. (Doc. 1 at p. 4-5). Smith contends that G4S refused to rehire and promote him after terminating him, despite his qualifications, because of considerations related to his race and in retaliation for a charge he previously filed with the Equal Employment Opportunity Commission. (Id. ). Smith alleges federal causes of action under Title VII of the Civil Rights Act of 1964, including race discrimination and retaliation, and violations of his right to equal protection. (Id. at p. 4-5, 6). Additionally, Smith alleges supplemental state claims including humiliation and embarrassment, loss of income, damage to reputation, and past and future intentional infliction of emotional and mental distress. (Id. at p. 6). He seeks damages in a total amount of $1, 000, 975, 000. (Id. ).
B. Procedural History
Smith filed this action against G4S and its codefendant, Womans Hospital, on August 12, 2014. (Doc. 1). Summons for both defendants were issued to Smith on September 24, 2014 (Doc. 8), but no proof of service affidavits were filed. On October 28, 2014, Smith filed a Motion and Order for Default stating that G4S was "served with process on September 26, 2014" and had not filed an Answer. (Doc. 11 at p. 1). The Clerk of Court entered a default against G4S on October 29, 2014. (Doc. 12). G4S filed the Motion to Set Aside Default sub judice on November 3, 2014 (Doc. 13); Smith filed his Opposition to the motion on November 17, 2014 (Doc. 14). G4S then filed the Motion to Dismiss for Insufficient Service of Process under review here on January 21, 2015 (Doc. 17); Smith filed his Opposition on January 28, 2015 (Doc. 19).
II. STANDARD OF REVIEW
A. Motion to Dismiss for Insufficient Service of Process
Under Rule 4, a plaintiff is responsible for serving the defendant with a complaint and summons. Fed.R.Civ.P. 4(c)(1). The Rule further provides that a court must either dismiss the action against a defendant without prejudice, or order that service be made within a specified time, if the defendant is not served within 120 days after the complaint is filed. Fed.R.Civ.P. 4(m).
"A defendant has no obligation to appear in court or defend an action before it is formally served with process directing it to appear before that forum." Thompson v. Deutsche Bank Nat. Trust Co., 775 F.3d 298, 303 (5th Cir. 2014). Proper service is critical because "[i]t is axiomatic that in order for there to be in personal jurisdiction there must be valid service of process." Attwell v. LaSalle Nat. Bank, 607 F.2d 1157, 1159 (5th Cir. 1979). Indeed, "[a] court which lacks personal jurisdiction over a defendant cannot enter a valid judgment against that defendant." Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1486 (5th Cir. 1997) (quoting Broadcast Music, Inc. v. M.T.S. Enters., 811 F.2d 278, 281 (5th Cir. 1987)). If a plaintiff fails to properly effectuate service, the defendant may seek to dismiss the plaintiff's complaint under Rule 12(b)(5). See Fed.R.Civ.P. 12(b)(5) (authorizing a court to dismiss a civil action when service of process is inadequate).
B. Motion to Set Aside Clerk's Entry of Default
The service of summons or lawful process triggers the duty to respond to a complaint. Fagan v. Lowrence Nathan Assocs., 967 F.Supp.2d 784, 795 (E.D. La. 2013) (citing Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 937 (5th Cir. 1999)). Under Rule 55, failure to respond may result in the entry of a default or a default judgment. Id. Default judgments are "generally disfavored in the law" in favor of a trial upon the merits. Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000) (quoting Mason & Hanger-Silas Mason Co. v. Metal Trades Council, 726 F.2d 166, 168 (5th Cir. 1984)). However, Rule 55 does provide, in pertinent part, that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that ...