United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE
Kennan Yilmaz, appearing pro se in this employment
discrimination action, filed an ex parte motion
“Requesting for Default Judgment, ” Record Doc.
No. 5, that seeks entry of default judgment against all three
defendants. Yilmaz asserts that all defendants were served
with the summons and complaint on November 28, 2017, but that
no defendant has filed an answer or otherwise appeared.
However, because plaintiff's proofs of service do not
establish that any defendant was properly served, IT IS
ORDERED that his motion is DENIED, for the following reasons.
filed in the record copies of the summonses issued to
defendants Rasheedah Jones, Keri Dawson and General Electric
Oil & Gas Company (“GE”); and three proofs of
service, signed under penalty of perjury by Tanner Yilmaz
(“Tanner”) on November 30, 2017. Record Doc. Nos.
2, 3, 4. Tanner states that he served the summons and
complaint on each defendant by certified mail on November 24,
2017. The proofs of service for the individual defendants,
Jones and Dawson, include certified mail receipts from the
United States Postal Service, indicating that the postage was
paid for an item on November 24, 2017, to be sent to these
defendants at “GE Oil and Gas, 2600 Camino Ramon, San
Ramon, California 94583, ” return receipt requested.
The proof of service for GE also includes a certified mail
receipt indicating that the postage was paid for an item on
the same date, to be sent to “GE Oil & Gas c/o
Rasheedah Jones” at the same address, return receipt
requested. Each proof of service includes a copy of a
“USPS Tracking” notice, stating that the
“item was delivered to an individual at the address at
1:07 p.m. on November 28, 2017.” No return receipts
have been filed in the record.
Federal Procedure for Entry of Default and Service of
seeking default judgment, Yilmaz must first obtain
entry of default. Default may be entered
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise.”
Fed.R.Civ.P. 55(a). Plaintiff may move for default judgment
only after default is entered against a defendant.
Fed.R.Civ.P. 55(b). Accordingly, the court treats
plaintiff's motion as one for entry of default under Rule
summons and a copy of the complaint “must be
served” on the defendant before default can be entered.
Fed.R.Civ.P. 4(c)(1). Principles of due process require that
a defendant be properly served and made subject to the
court's jurisdiction before the court can render any
judgment against that defendant. Bollore S.A. v. Imp.
Warehouse, Inc., 448 F.3d 317, 321 n.5 (5th Cir. 2006);
Jackson v. FIE Corp., 302 F.3d 515, 529 nn. 51, 52
(5th Cir. 2002). “If a party is not validly served with
process, proceedings against that party are void. When
service of process is challenged, ‘the plaintiff bears
the burden of establishing its validity.'”
Moore v. Toyota Motor Corp., No. 17-1379, 2017 WL
5257050, at *1 (E.D. La. Nov. 13, 2017) (quoting Carimi
v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344,
1346 (5th Cir. 1992)) (citing Aetna Bus. Credit, Inc. v.
Universal Decor & Interior Design, Inc.,
635 F.2d 434, 435 (5th Cir. 1981)); accord Henderson v.
Republic of Tex., 672 F. App'x 383, 384 (5th Cir.
2016). “[P]roof of service must be made to the court .
. . by the server's affidavit.” Fed.R.Civ.P. 4(1).
Civ. P. 4(d)(1) provides that plaintiff may notify a
defendant “that an action has been commenced and
request that the defendant waive service of a summons,
” but Yilmaz does not allege that he used that
procedure. Alternatively, plaintiff “may . . . serve[
]” an individual defendant who is not located in the
state where suit was filed “in a judicial district of
the United States by: (1) 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). A
corporation that is not located in the state where suit was
filed must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an
(B) by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process and-if the agent is one authorized by statute and
the statute so requires-by also mailing a copy of each to the
defendant . . . .
Fed. R. Civ. P. 4(h)(1)(A), (B). Thus, this court examines
whether Yilmaz has provided sufficient evidence that each
defendant was properly served in California under the law of
either Louisiana (where suit was filed) or California (where
defendants are located).
Long-arm Service of Process Under Louisiana Law
law allows service of process on a “nonresident,
” La. Stat. Ann. § 13:3201 (2017), which is
defined as an individual
who at the time of the filing of the suit is not domiciled in
this state, or a partnership, association, or any other legal
or commercial entity, other than a corporation, not then
domiciled in this state, or a corporation or limited
liability company which is not organized under the laws of,
and is not then licensed to do business in, this state.
Id. § 13:3206. To serve a nonresident
defendant, the summons and complaint
shall be sent by counsel for the plaintiff, or by
the plaintiff if not represented by counsel, to the
defendant by registered or certified mail, or actually
delivered to the defendant by commercial courier, when
the person to be served is located outside of this state or
by an individual designated by the court in which the suit is
filed, or by one authorized by the law of the place where the
service is made to serve the process of any of its courts of
general, limited, or small claims jurisdiction. . . . .
C. Service of process so made has the same legal force and
validity as personal service on the ...