United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
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. In the
alternative, Powell moves to dismiss under Rule 12(b)(5) and
for a stay under Rule 12(b)(5). Plaintiff Kiyante Myers opposes
the motion. For the following reasons, Powell's
Motion for vacatur is granted, and his motions to dismiss and
stay are denied as moot.
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. 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. Later that night, Powell wanted to engage
in sexual relations again, but Myers declined, saying that
Powell had been too rough the first time. 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. 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.”
23, 2013, the Court ordered entry of a default judgment
against Powell. 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. The Court further found that Myers'
complaint states a prima facie case of assault and
battery under Louisiana law. After taking evidence
regarding the quantum of damages, the Court awarded Myers
$3095.50 in medical expenses and $150, 000 in general
damages. The Court entered default judgment
against Powell on August 30, 2013.
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. Powell further asserts that once he
learned he had been sued, he retained an attorney, Roderick
Bickerstaff, to defend him. Powell blames his failure to
appear in this case on his attorney, and states that
Bickerstaff “effectively abandoned
him.” Powell explains his failure to inquire
regarding this case by saying that that he assumed it had
been resolved along with the related criminal
also asserts that he has a meritorious defense to Myers'
claims. Powell denies assaulting Myers, and states that the
two had only consensual sex. 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. 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
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.
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).
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).”).
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.
affidavit of service, Gilbert Garcia attests that he served
“Kerry Powell” at “8601 Lincoln Blvd., Los
Angeles, CA” on May 21, 2013. Garcia gives no apartment
number, and the affidavit describes Kerry as Clifton
Powell's daughter. 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.” Myers further
asserts, again without citation, that ...