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Myers v. Powell

United States District Court, E.D. Louisiana

January 24, 2017


         SECTION “R” (5)



         Defendant Clifton Powell moves, pursuant to Federal Rules of Civil Procedure 55(c) and 60(b), to vacate the default judgment entered against him on August 30, 2013.[1] In the alternative, Powell moves to dismiss under Rule 12(b)(5) and for a stay under Rule 12(b)(5).[2] Plaintiff Kiyante Myers opposes the motion.[3] For the following reasons, Powell's Motion for vacatur is granted, and his motions to dismiss and stay are denied as moot.

         I. BACKGROUND

         On August 31, 2012, plaintiff Kiyante Myers filed a complaint seeking damages for assault, battery, and intentional infliction of emotional distress that she allegedly suffered at the hands of defendant Clifton Powell.[4] Myers alleged that on the night of August 28, 2011, she went to defendant's hotel room, where the two began engaging in consensual sex.[5] Later that night, Powell wanted to engage in sexual relations again, but Myers declined, saying that Powell had been too rough the first time.[6] After convincing Myers to acquiesce, Powell allegedly began “pushing” and “choking” Myers, penetrated her anus with his fingers, and forcefully continued having sex with her against her will.[7] Myers alleged that this experience caused her to incur “medical and legal expenses” and to suffer “stress, emotional distress and mental pain and suffering” as well as “physical pain and suffering.”[8]

         On July 23, 2013, the Court ordered entry of a default judgment against Powell.[9] It its order, the Court found that Powell had been served with process on May 21, 2013, but had failed to plead or otherwise defend against Myers' claims.[10] The Court further found that Myers' complaint states a prima facie case of assault and battery under Louisiana law.[11] After taking evidence regarding the quantum of damages, the Court awarded Myers $3095.50 in medical expenses and $150, 000 in general damages.[12] The Court entered default judgment against Powell on August 30, 2013.[13]

         Powell now moves to set aside this default judgment. Alternatively, Powell moves for dismissal under Rule 12(b)(5) or stay under Rule 62(b)(4). In support of his motion, Powell asserts that he was never served with a summons or complaint in this case, and only learned about this case through media reports.[14] Powell further asserts that once he learned he had been sued, he retained an attorney, Roderick Bickerstaff, to defend him.[15] Powell blames his failure to appear in this case on his attorney, and states that Bickerstaff “effectively abandoned him.”[16] Powell explains his failure to inquire regarding this case by saying that that he assumed it had been resolved along with the related criminal investigation.[17]

         Powell also asserts that he has a meritorious defense to Myers' claims. Powell denies assaulting Myers, and states that the two had only consensual sex.[18] In support of his defense, Myers points to an affidavit completed by the lead detective on the related criminal investigation, Detective Damita Williams of the New Orleans Police Department.[19] Detective Williams states, in part:

Through my investigation I found Ms. Kiyante Myers' claims to be unfounded; specifically because when I asked Ms. Kiyante Myers was she forced or intimidated to commit any sexual intercourse with Mr. Powell she replied “No.”[20]

         In response, Myers argues that Powell has strategically chosen to ignore service and this case. She points to an affidavit of service completed by Gilbert Garcia to support her claim that Powell was properly served. Because the Court finds that the judgment is void under Rule 60(b)(4) for lack of proper service, the Court does not consider Powell's arguments concerning attorney abandonment or whether Powell's defense is meritorious.


         A litigant may petition a court to vacate a final default judgment under Rule 60(b). Fed.R.Civ.P. 55(c). Rule 60(b) provides for relief where the judgment is void. Fed.R.Civ.P. 60(b)(4). If a party is not validly served with process, proceedings against that party are void. Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981).

         In a Rule 60(b)(4) motion asserting insufficient service, the moving defendant has the burden of showing he is not subject to the court's jurisdiction. Jackson v. Fratelli Tanfoglio Di Tanfoglio Bortolo & C.S. N.C. , 310 F. App'x 629, 631 (5th Cir. 2009). In most cases, “[t]he decision to grant or deny relief under Rule 60(b) lies within the sound discretion of the district court.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005) (quoting Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (internal modifications omitted). “When, however, the motion is based on a void judgment under rule 60(b)(4), the district court has no discretion-the judgment is either void or it is not.” Recreational Properties, Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir. 1986). Accordingly, “if a court lacks jurisdiction over the parties because of insufficient service of process, the judgment is void and the district court must set it aside.” Id. Actual knowledge that the suit is pending does not eliminate the requirement of proper service, because a “defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds.” Jackson v. FIE Corp., 302 F.3d 515, 522 (5th Cir. 2002); see also Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21, 24 (1st Cir. 1992) (“The federal courts have made it abundantly clear that actual notice itself, without more, is insufficient to satisfy the requirements of Fed.R.Civ.P. 4(d)(1).”).


         It is undisputed that Powell was never personally served in this case. Rule 4(e), however, permits plaintiffs to effectuate service by “leaving a copy of [the summons and complaint] at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there.” Fed.R.Civ.P. 4(e)(2)(b). Alternatively, service may be achieved 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). This action is brought in Louisiana and service was attempted in California. Therefore if Powell was properly served under either state's law, or under Rule 4(e)(2)(b), this Court may properly exercise personal jurisdiction over him.

         In his affidavit of service, Gilbert Garcia attests that he served “Kerry Powell” at “8601 Lincoln Blvd., Los Angeles, CA” on May 21, 2013.[21] Garcia gives no apartment number, and the affidavit describes Kerry as Clifton Powell's daughter.[22] Myers also states in her brief, without citation, that Garcia “approached the ‘K. Powell' at the entrance to the apartment building and served her as she exited the building.”[23] Myers further asserts, again without citation, that ...

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