Myers v. Powell, No. 2:2012cv02181 - Document 55 (E.D. La. 2017)

Court Description: ORDER AND REASONS - Clifton Powell's Motion 36 for Relief Pursuant to Rules 55(c) and 60(b) is GRANTED. Powell's motions to dismiss under Rule 12(b)(5) and stay under Rule 62(b)(4) are DENIED AS MOOT. Myers has failed to effect proper s ervice of process, and this Court therefore has no jurisdiction over Powell. Powell, however, has agreed to accept service on his attorney, Eric M. Carter, Sr. Myers is ORDERED to serve Powell, through his attorney, within seven days of this Order.. Signed by Judge Sarah S. Vance on 1/24/17.(jjs)
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Myers v. Powell Doc. 55 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIYANTE MYERS CIVIL ACTION VERSUS NO. 12-2181 CLIFTON POWELL SECTION “R” (5) ORD ER AN D REASON S Defendant Clifton Powell m oves, pursuant to Federal Rules of Civil Procedure 55(c) and 60 (b), to vacate the default judgm ent entered against him on August 30 , 20 13.1 In the alternative, Powell m oves to dism iss under Rule 12(b)(5) and for a stay under Rule 12(b)(5).2 Plaintiff Kiyante Myers opposes the m otion.3 For the following reasons, Powell’s Motion for vacatur is granted, and his m otions to dism iss and stay are denied as m oot. I. BACKGROU N D On August 31, 20 12, plaintiff Kiyante Myers filed a com plaint seeking dam ages for assault, battery, and intentional infliction of em otional distress that she allegedly suffered at the hands of defendant Clifton Powell.4 Myers 1 2 3 4 R. Doc. 36. Id. R. Doc. 41. R. Doc. 1. alleged that on the night of August 28, 20 11, 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 tim e.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 “m edical and legal expenses” and to suffer “stress, em otional distress and m ental pain and suffering” as well as “physical pain and suffering.”8 On J uly 23, 20 13, the Court ordered entry of a default judgm ent against Powell.9 It its order, the Court found that Powell had been served with process on May 21, 20 13, but had failed to plead or otherwise defend against Myers’ claim s.10 The Court further found that Myers’ com plaint states a prim a facie case of assault and battery under Louisiana law.11 After taking evidence regarding the quantum of dam ages, the Court awarded Myers 5 6 7 8 9 10 11 Id. at 4. Id. Id. Id. at 5. R. Doc 27. Id. at 6. Id. 2 $ 30 95.50 in m edical expenses and $ 150 ,0 0 0 in general dam ages.12 The Court entered default judgm ent against Powell on August 30 , 20 13. 13 Powell now m oves to set aside this default judgm ent. Alternatively, Powell m oves for dism issal under Rule 12(b)(5) or stay un der Rule 62(b)(4). In support of his m otion, Powell asserts that he was never served with a sum m ons or com plaint in this case, an d only learned about this case through m edia reports.14 Powell further asserts that once he learned he had been sued, he retained an attorney, Roderick Bickerstaff, to defend him .15 Powell blam es 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 assum ed it had been resolved along with the related crim inal investigation.17 Powell also asserts that he has a m eritorious defense to Myers’ claim s. Powell denies assaulting Myers, and states that the two had only consensual sex.18 In support of his defense, Myers points to an affidavit com pleted by the lead detective on the related crim inal investigation, Detective Dam ita 12 13 14 15 16 17 18 R. Doc. 30 at 6. R. Doc. 31. R. Doc. 36-3 at 1. Id. at 2. R. Doc. 36-1 at 2. R. Doc. 36-3 at 2. Id. at 1. 3 William s of the New Orleans Police Departm ent.19 Detective William s states, in part: Through m y investigation I found Ms. Kiyante Myers’ claim s to be unfounded; specifically because when I asked Ms. Kiyante Myers was she forced or intim idated to com m it 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 com pleted by Gilbert Garcia to support her claim that Powell was properly served. Because the Court finds that the judgm ent is void under Rule 60 (b)(4) for lack of proper service, the Court does not consider Powell’s argum ents concerning attorney abandonm ent or whether Powell’s defense is m eritorious. II. LEGAL STAN D ARD A litigant m ay petition a court to vacate a final default judgm ent under Rule 60 (b). Fed. R. Civ. P. 55(c). Rule 60 (b) provides for relief where the judgm ent 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). 19 20 R. Doc. 36-4 Id. 4 In a Rule 60 (b)(4) m otion asserting insufficient service, the m oving 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. 20 0 9). In m ost 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. 20 0 5) (quoting Edw ards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (internal m odifications omitted). “When, however, the m otion is based on a void judgm ent under rule 60 (b)(4), the district court has no discretion—the judgm ent is either void or it is not.” Recreational Properties, Inc. v. Sw . Mortg. Serv. Corp., 80 4 F.2d 311, 314 (5th Cir. 1986). Accordingly, “if a court lacks jurisdiction over the parties because of insufficient service of process, the judgm ent is void and the district court m ust set it aside.” Id. Actual knowledge that the suit is pending does not elim inate the requirem ent of proper service, because a “defendant is always free to ignore the judicial proceedings, risk a default judgm ent, an d then challenge that judgm ent on jurisdictional grounds.” Jackson v. FIE Corp., 30 2 F.3d 515, 522 (5th Cir. 20 0 2); see also Precision Etchings & Findings, Inc. v. LGP Gem , Ltd., 953 F.2d 21, 24 (1st Cir. 1992) (“The federal courts have m ade it abundantly clear 5 that actual notice itself, without m ore, is insufficient to satisfy the requirem ents of Fed. R. Civ. P. 4(d)(1).”). III. D ISCU SSION It is undisputed that Powell was never personally served in this case. Rule 4(e), however, perm its plaintiffs to effectuate service by “leaving a copy of [the sum m ons and com plaint] at the individual’s dwelling or usual place of abode with som eone of suitable age and discretion who resides there.” Fed. R. Civ. P. 4(e)(2)(b). Alternatively, service m ay be achieved by “following state law for serving a sum m ons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is m ade.” Fed. R. Civ. P. 4(e)(1). This action is brought in Louisiana and service was attem pted in California. Therefore if Powell was properly served under either state’s law, or under Rule 4(e)(2)(b), this Court m ay properly exercise personal jurisdiction over him . In his affidavit of service, Gilbert Garcia attests that he served “Kerry Powell” at “860 1 Lincoln Blvd., Los Angeles, CA” on May 21, 20 13.21 Garcia gives no apartm ent num ber, and the affidavit describes Kerry as Clifton 21 R. Doc. 20 . 6 Powell’s daughter.22 Myers also states in her brief, without citation, that Garcia “approached the ‘K. Powell’ at the entrance to the apartm ent building and served her as she exited the building.”23 Myers further asserts, again without citation, that the person Garcia served acknowledged that she was a relative of Clifton Powell’s and that she would deliver the sum m ons to him .24 In response, Powell attests that he has no daughter nam ed Kerry; his only daughter is nam ed Maya and Maya has never lived at the Lincoln Boulevard apartm ent.25 Myers does not dispute Powell’s attestations concerning his daughter, but states, again without citation, that Powell has a wife nam ed Kim berley, and im plies that she m ay have been the “Kerry” who received service. That the person Garcia claim s to have served apparently does not exist is enough to greatly underm ine Myers’ case for proper service. But even assum ing that service occurred as Myers claim s, the Court finds that it was not perform ed at Powell’s “dwelling or usual place of abode” and therefore cannot satisfy Rule 4(e)(2)(b). 22 23 24 25 Id. R. Doc. 41 at 11. Id. at 11-12. R. Doc. 36-3 at 2. 7 Myers m aintains that Garcia “approached the ‘K. Powell’ at the entrance to the apartm ent building and served her as she exited the building.”26 Courts have repeatedly held that, when a defendant resides in an apartm ent building, service perform ed at another apartm ent in the sam e building is inadequate. See Precision Etchings & Findings, 953 F.2d at 24 (“It has been held directly that delivery of process to a different apartm ent in the sam e building is not sufficient service.”); Di Leo v. Shin Shu, 30 F.R.D. 56 (S.D.N.Y. 1961) (service on daughter of defendant who resided in separate apartm ent not sufficient); see also 4A Wright & Miller, Federal Practice and Procedure § 10 96 (4th ed. 20 16) (“service m ade at an apartm ent other than the defendant’s apartm ent in a m ultiple-unit building has been held invalid”). It follows that a defendant m ust be served at his actual apartm ent, not m erely som ewhere in—or near—the appropriate building. This is particularly true when the defendant lives in a large apartm ent com plex. In this case, defendant asserts that the apartm ent in question is part of a com m unity of m ore than 40 0 units, spread over several acres, that all share a single street address.27 Because Myers adm its that the process server handed the sum m ons and com plaint to som eone other than Powell, and did 26 27 R. Doc. 41 at 11. R. Doc. 36-1 at 13. 8 not do so at Powell’s actual dwelling, Myers did not properly effect service under Rule 4(e)(2)(b). This sam e “actual-apartm ent” restriction exists under Louisiana’s law of dom iciliary service. Rehage v. Hay ford, 74 So. 711, 712 (1917) (dom iciliary service provision was not intended to provide that “a person living in an apartm ent in a house divided into m any apartm ents occupied by different persons should be bound by service of process directed to him , but delivered to an entire stranger living in the house, but occupying another apartm ent.”). Myers therefore did not adequately serve Powell under Louisiana law. Furtherm ore, Louisiana requires service at the defendants dom icile—as opposed to m erely a “place of abode”—and Powell denies that the Lincoln Boulevard apartm ent was his dom icile at the tim e of service. Myers’ provides no convincing evidence to counter this assertion. Finally, under California’s law of “substitute service,” service m ay be perform ed by leaving a sum m ons at the defendant’s “dwelling house [or] usual place of abode.” Cal. Civ. Pro. Code § 415.20 . “The term s ‘dwelling house’ and ‘usual place of abode’ utilized in the California substitute service statute ‘take their m eanings from federal law.’” Rey nolds Corp. v. N at’l Operator Servs., Inc., 20 8 F.R.D. 50 , 53 (W.D.N.Y. 20 0 2) (quoting J udicial Counsel Com m ent to Cal. Civ. Pro. Code § 415.20 ). The Court therefore sees 9 no reason to interpret this language to m ean anything different than the federal statute. Furtherm ore, before such service is accepted, the plaintiff m ust show that she has exercised “reasonable diligence” in attem pting personal service. Cal. Civ. Pro. Code § 415.20 .; see also Fed. Trade Com m ’n v. Bus. Team , LLC, 654 F. App’x 288, 288 (9th Cir. 20 16) (“num erous unsuccessful attem pts at personal service” sufficed to show reasonable diligence). Myers has m ade no such showing. Accordingly, Myers cannot establish that her attem pted service was proper under California law. For these reasons the Court finds that, even taking Myers’ challenged narrative of how service took place at face value, Powell has m et his burden to show that he was not properly served under Rule 4. Accordingly, the default judgm ent entered on August 30 , 20 13 is void and m ust be vacated. IV. CON CLU SION For the foregoing reasons, Clifton Powell’s Motion for Relief Pursuant to Rules 55(c) and 60 (b) is GRANTED. Powell’s m otions to dism iss under Rule 12(b)(5) and stay under Rule 62(b)(4) are DENIED AS MOOT. Myers has failed to effect proper service of process, and this Court therefore has no jurisdiction over Powell. Powell, however, has agreed to accept service on 10 his attorney, Eric M. Carter, Sr.28 Myers is ORDERED to serve Powell, through his attorney, within seven days of this Order. 24th New Orleans, Louisiana, this _ _ _ _ _ day of J anuary, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 28 R. Doc. 54 at 7. 11