Opinion
Civil Action No. 1:03cv831-T.
August 4, 2004
David R Pruet, III, Enrique Jose Gimenez, Sara Anne Ford, Lightfoot Franklin White LLC, Birmingham, AL, for Plaintiff.
ORDER
This case arises from defendant John Carlson's alleged illegal use of electronic devices to receive plaintiff DIRECTV, Inc.'s satellite television service without paying for it. DIRECTV brought this action against Carlson claiming violations of the Federal Communication Act of 1934, as amended, 47 U.S.C.A. §§ 605(a) 605(e)(4), the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C.A. §§ 2511(1)(a) 2512(1)(b), and state law. The court's jurisdiction has been properly invoked. 47 U.S.C.A. § 605(e)(3)(A); 28 U.S.C.A. §§ 1331 1367(a). On May 7, 2004, the clerk of the court entered default against Carlson.
Now before the court is Carlson's motion to set aside the entry of default. The court will postpone deciding Carlson's motion until after it hears evidence from the parties on the determinative issue of whether Carlson was properly served with the complaint in this case.
I. Background
The court will assume that the reader is generally familiar with DIRECTV, satellite television pirates, and the origins of this case in another case. See DIRECTV, Inc. v. Huynh, ___ F. Supp.2d ___, ___ n. 2, 2004 WL 1123830, *1 n. 2 (M.D. Ala. 2004).
On August 21, 2003, DIRECTV filed an amended complaint against Carlson. The record reflects that a copy of the amended complaint was sent to Carlson by certified mail, return receipt requested but that it was returned to the court with the notation "Return to Sender; Unknown/Unclaimed" on September 17, 2003. The record further reflects that a process server left a summons and a copy of the amended complaint with Carlson's spouse Kris on March 17, 2004.
After Carlson failed to file an answer, DIRECTV applied for default on April 27, 2004, which application was granted on May 7, 2004. DIRECTV subsequently moved for default judgment on May 28, 2004. After the court issued a show-cause order on June 3, 2004, Carlson filed a motion to set aside the entry of default on the ground that he was never served in this matter. Carlson claims that he first heard of this case on June 4, 2004, when he received a copy of DIRECTV's motion for default judgment from DIRECTV's attorneys.
II. Discussion
"For good cause shown the court may set aside an entry of default." Fed.R.Civ.P. 55(c). The United States Court of Appeals for the Eleventh Circuit has expounded upon Rule 55(c)'s "good cause" standard as follows:
"Good cause is a mutable standard, varying from situation to situation. It is also a liberal one — but not so elastic as to be devoid of substance. . . . [G]ood cause is not susceptible to a precise formula, but some general guidelines are commonly applied. Courts have considered whether the default was culpable or willful, whether setting it aside would prejudice the adversary, and whether the defaulting party presents a meritorious defense. . . . [T]hese factors are not talismanic, and . . . courts have examined other factors including whether the public interest was implicated, whether there was significant financial loss to the defaulting party, and whether the defaulting party acted promptly to correct the default. Whatever factors are employed, the imperative is that they be regarded simply as a means of identifying circumstances which warrant the finding of good cause to set aside a default. However, if a party willfully defaults by displaying either an intentional or reckless disregard for the judicial proceedings, the court need make no other findings in denying relief."Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951-52 (11th Cir. 1996) (internal quotations and citations omitted). The decision whether to set aside a default is within the court's discretion.Robinson v. United States, 734 F.2d 735, 739 (11th Cir. 1984).
Acting on his own behalf, Carlson argues that he did not receive notice of this lawsuit until DIRECTV's attorneys sent him a copy of its motion for default judgment in the beginning of June 2004. Carlson points out, and the record confirms, that DIRECTV originally attempted to serve Carlson at 79 Pineview Lane in Samson, Alabama; Carlson, however, lives at719 Pineview Lane. This explains why the summons and amended complaint sent out by the court in September 2003 were returned as undeliverable. If Carlson was not properly served — with either the complaint or with DIRECTV's motion for default judgment — that would be a ground to set aside default. See, e.g., Coon v. Grenier, 867 F.2d 73, 76-77 (1st Cir. 1989) (setting aside default because defendant did not learn about case until after default was entered).
The court interprets pro se filings liberally. See Faulk v. City of Orlando, 731 F.2d 787, 789 (11th Cir. 1984). A more literal, and less liberal, reading of Carlson's argument is that there is another person named John Carlson, who lives at 79 Pineview Lane in Samson, Alabama, who is the proper defendant. This strikes the court as improbable, and Carlson has not offered any evidence to support this theory.
Carlson's allegation that he was unaware of this case prior to DIRECTV's motion for default judgment is contradicted by the record, however. The return of service filed by a private process server shows that the server left a summons and a copy of the amended complaint with Carlson's spouse Kris at 719 Pineview Lane on March 17, 2004. Moreover, the return of service is signed by the process server under penalty of perjury. Service may be effected "by leaving copies [of the summons and of the complaint] at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein," Fed.R.Civ.P. 4(e)(2), and leaving a copy of the summons and complaint with the defendant's spouse meets the terms of Rule 4(e)(2), see Resolution Trust Corp. v. Polmar Realty, Inc., 780 F. Supp. 177, 180 (S.D.N.Y. 1991) (Lasker, J.). Thus, according to the return of service, Carlson was not only on notice of this lawsuit in the colloquial sense, but he was also properly served with the complaint under the Federal Rules of Civil Procedure.
Carlson, in turn, contends that the return of service is not accurate. In response to DIRECTV's objection to his motion to set aside the entry of default, Carlson writes that "there is no Kris Carlson as my spouse" and refers to Kris Carlson as "someone nonexistent."
Response, filed July 30, 2004 (doc. no. 17).
As a general rule, a "signed return of service constitutes prima facie evidence of valid service 'which can be overcome only by strong and convincing evidence.'" O'Brien v. R.J. O'Brien Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993) (quotingHicklin v. Edwards, 226 F.2d 410, 414 (8th Cir. 1955)); Okehi v. Security Bank of Bibb County, 199 F.R.D. 388, 391 (M.D. Ga. 2001) (Fitzpatrick, C.J.); Trustees of Local Union No. 727 Pension Fund v. Perfect Parking, Inc., 126 F.R.D. 48, 52 (N.D. Ill. 1989) (Norgle, J.). "Affidavits submitted by defendants which merely deny service are not sufficient." Trustees of Local Union No. 727, 126 F.R.D. at 52; see also FROF, Inc. v. Harris, 695 F. Supp. 827, 829 (E.D. Pa. 1988) (Newcomer, J.) ("[A] bare allegation by a defendant that he was improperly served cannot be allowed to bely the private process server's return."). Thus, Carlson's unsworn statement that he was not served, standing alone, would not be enough to overcome the presumption of proper service created by the return of service filed by DIRECTV.
However, Carlson's statement to the effect that he does not have a spouse named Kris makes the court hesitant to resolve this matter solely on the basis of the return of service filed by DIRECTV's process server. Carlson is neither arguing a mere technicality of service nor simply making a general denial; rather, he has "set forth circumstances . . . which would call into question the issue of service." Trustees of Local Union No. 727, 126 F.R.D. at 52. If Kris Carlson does not exist, and if, therefore, Carlson was not actually served, it would be wholly unjust to enter default against him. Furthermore, while Carlson's statement regarding Kris Carlson is unsworn, it is readily susceptible to proof. Thus, it is unlikely that Carlson has falsely denied her existence because such a falsehood could be readily exposed. The court also strongly favors the resolution of disputes on the merits and is thus chary of upholding the entry of default. See Gulf Coast Fans, Inc. v. Midwest Electronics Importers, Inc., 740 F.2d 1499, 1510 (11th Cir. 1984). For these reasons, the court will not resolve Carlson's motion — or DIRECTV's pending motion for default judgment — on the record before it now.
An evidentiary hearing on the issue of whether Carlson was served with the amended complaint on March 17, 2004, will best allow the court to fairly and finally resolve this matter. The court generally has the discretion to conduct evidentiary hearings to resolve matters related to its jurisdiction, see Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir. 1990); indeed, in Okehi, 199 F.R.D. at 390, the district court held an evidentiary hearing to resolve the defendant's claim that a default judgment should be set aside because of insufficient service of process. If the court finds that Carlson was, as a matter of fact, properly served with the amended complaint, then Carlson's motion will be denied, and the court will proceed to DIRECTV's motion for default judgment. If on the other hand, the court finds that Carlson was not properly served with the amended complaint, the entry of default against him will be set aside.
Accordingly, it is ORDERED that the parties shall appear for an evidentiary hearing at 9:00 a.m. on August 18, 2004, in Courtroom 2E of the Frank M. Johnson, Jr. United States Courthouse, One Church Street, Montgomery, Alabama 36104. The parties should be prepared to present admissible evidence on whether plaintiff John Carlson was properly served with the amended complaint in this case on or about March 17, 2004.