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Yilmaz v. Jones

United States District Court, E.D. Louisiana

January 24, 2018

KENNAN YILMAZ
v.
RASHEEDAH JONES ET AL.

         SECTION “N” (2)

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         Yilmaz 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.[1] 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.

         A. Federal Procedure for Entry of Default and Service of Process

         Before 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 55(a).

         The 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).

         Fed. R. 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 individual; or
(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).

         B. Long-arm Service of Process Under Louisiana Law

         Louisiana 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 ...

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