BAKER v. DURHAM COUNTY S.W.A.T. TEAM et al, No. 1:2014cv00878 - Document 46 (M.D.N.C. 2016)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 05/05/2016. For the reasons stated herein, IT IS THEREFORE RECOMMENDED that Plaintiff's Motion for Entry of Default Jud gment (Docket Entry 42 ) be DENIED. FURTHER RECOMMENDED that Defendants' Motion to Set Aside Entry of Default and in Opposition to Plaintiff's Motion for Entry of Default Judgment (Docket Entry 43 ) be GRANTED.(Taylor, Abby)
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BAKER v. DURHAM COUNTY S.W.A.T. TEAM et al Doc. 46 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BRIAN JOSHUA BAKER, ) ) ) ) Plaintiff, v DURHAM COUNTY S.W.A.T. TEAM, et aI., Defendants 1:14CV878 ) ) ) ) ) ) MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter comes before the Court upon Plaintiff Brain Joshua Baker's Motion fot Entty of Default Judgment (Docket Entry 42) and Defendants Durham County Police Department, Dutham S.E.T. (Selective Enforcement Team), and the City of Durham's Motion to Set Aside Etrtry of Default and in Opposition to Plaintifls Motion fot Entry of DefaultJudgment. (Docket Entry 43.) For the following reasons, the Court recommends that PlaintifPs Motion (Docket Entry 42) be denied and Defendants' Motion (Docket Entry 43) be gtanted. I. BACKGROUND Plaintiff, a pdsoner of the State of North Carohna, filed this action pursuant to 42 U.S.C. S 1983 on October 20,2014, against Defendants Dutham County S.W.A.T. and Det. J.E,. Franklin, alleging that he was brutally beaten, assaulted, and illegally detained by the Dutham S.W.A.T. Team dudng the coutse of the execution of a search warnnt at his girlftiend's house. (Compl., Docket Entry 2 at 3-5.) On May 28, 201,5, Plaintiff filed an 1. Dockets.Justia.com Amended Complaint and added the City of Durham, Dutham Police Department, and Durham S.E,.T. as defendants.l (Am. Compl., Docket Entry added Defendants were 18.) Subsequently, the newly served. (Docket Entries 27, 28.) Defendants failed to fìle a response. On February 8,201.6,the Clerk of Court enteted aParttalEtttty of Default against the City of Dutham, Durham Police Department, and Durham S.E,.T. pocket Entry 41,.) of Default Judgment. (Docket Entty 42.) Subsequently, Plaintiff filed a Motion for Entry In response, Defendants fìled a Motion to Set Aside E.ttty of Default and in Opposition to Plaintiffs Motion for E,ntry of DefaultJudgment. (Docket F;ntry 43.) an untimely response to Defendants' Motion to Set Aside Entty of Default. Next, Plaintiff fìled (Docket Entry 4s.) II. STANDARD OF REVIESø Putsuant to Federal Rule of Civil Ptocedure 55(bX2), a court may enter a default judgment against a propedy served defendant who fails to plead or otherwise defend against the allegations in the complaint. Fed. R. Civ. P. 55(bX2). The Fourth Circuit has "repeatedly expressed a strong prefetence that, as a general matter, defaults be avoided and that claims and defenses be disposed 61,6 of on their medts." tr.3d 41.3,417 (4th Cir. 201,0) (citing Colleton Preparatorl Acad., Inc. u. Hooaer Uniuerta/, Inc., Tary.v, Inc. u. Director, Office of Progmrn, U.S. Dep't ofl-abor,895 F.2d 949,950 (4th ll/orker¡ Comþensation Cir. 1990)). "A coutt must'exercise sound judicial discretion' in deciding whether to enter default judgment, and 'the moving party is not 1 Defendants Durham S.W.A.T. Team and Det. J.E. Ftanklin have been terminated from this action. Det. J.E. Franklin was voluntatily dismissed (Docket Entry 40). The Durham S.W.A.T. Team was replaced by Durham S.E.T. in Plaintiffs ,{mended Complaint. (Docket Entries 1,6,1,7,1,8.) 2 entided to default judgment as a matter of LLC,851 F. S,rpp. 2d 961., right."' Reyolds Innouations, Inc. u. E-CigaretteDìrect, 962 (LvI.D.N.C. 2012) (citing Unind Stute¡ u. Moradi, 613 F.2d 725, 727 (4th Ctr. 1982)). Additionally, "[t]he Court may set aside an entry of default fot good cause . . . ." Fed. R. Civ. P. 55(c). The Fourth Circuit has held that the factots used to determine if there is "good cause" to set aside an entry of defaultarc "(1) whether the moving party has a meritorious defense, (2) whether it acts with reasonable promptness, (3) the personal responsibility of the defaulting pary, (4) the prejudice to the p^rry, (5) whether thete is a history of dilatory action, and (6) the avatlal¡ility of sanctions less drastic." PEne ex re/. Estate of Calryda F.3d 198, 205 resolved (th Cir. 200ó). "Ary u. Brake, 439 doubts about whether relief should be granted should be in favot of setting aside the default so that the case may be heard on the merits." Tol¡on u. Hodge, 41,1. F.2d 123,1,30 (4th Cir. 1,969). III. DISCUSSION In suppott of his Motion for Entry of Default Judgment, Plaintiff contends that all Defendants were served and failed to file a response. Q)ocket Entry 42 at 1,.) To the contrarf , Defendants contend: (1) the Court lacks personal judsdiction over Defendants thereby tequfuing the Entry of Default to be set aside, and (2) Durham S.E.T. and the Dutham Police Depattment are not entities that have the legal capacity to be ^t sued. (DocketE,nty 43 5-1,1,.) Plaintiff Failed to Comply with Rule 4 of the Federal Rules of Civil Procedure with Respect to the City of Durham Pursuant to the Fouth Circuit's six factot J analysis, the City of Durham has shown good cause for the Court to set aside an entry of default. First, the City of Durham has meritorious defense against Plaintrffs a claim. The City of Durham contends that because Plaintiff failed to ptopedy serve Defendants, the Court does not have jurisdiction over them. "Absent waiver or consent, a fulure to obtain propet service on the defendant depdves the court of personal jurisdictiorì over the defendant." Koehler u. Dodwell 152F.3d 304,306 (4th Cir. 1998); ReyoldsInnouations, 35l F. S.rpp. 2dat962;U.5. exre/. MetromontCorþ. 1zr:, u. S.J. Constr., No. 1,:09CY745,2010WL2793919,atx5 (A4.D.N.C.July 1,5,201,0) ("If service of process is not valid, a district court lacks jurisdiction over a defendant."). Pursuant to Rule a$Q) of the Federal Rules of Civil Procedure, to propedy serve "[a] state, a municipal cotporation, or any other state-created governmental organizat)ofl," a plaintiff may "either serve a copy of the summons and the complaint on its chief executive officet ot in the manner ptescribed by state law fot serving pfocess on such a defendant." Fed. R. Civ. P. 4(,X2XÐ-@); Euant u. Griffin, No. 14CV1.091,,2015 \)fL 5577486,t x2 (À4.D.N.C. Sept.22,201,5) (requiting a pro se plaintiff to follow Rule 4O(2) and properþ serve the City of Gteensboro after he ettoneously served the city attorney). In addition, North Carcltnaallows manager, or clerk. N.C. R. Civ. a plaintiff to serve the city's mayot, city P. 4úX5). Durham's Code of Ordinances does not refer to a "chief executive officer" as top ranking position that oversees the City's operations, however the City's administtative head is the city m^n^ger. Durham, N.C., Code of Otdinances ch. IV, art. 1, S 16. Therefore, the Court finds that Dutham's administrative head is its chief executive. See Euans,201,5 WL 5577486, at*2 (agreeing with the City of Greensboro's contention that the city manager is the 4 chief executive because the city manager is the administrative head). Plaintiff did not serve the Mayor, City Manager, or Clerk of the Federal ot City. Thus, Plaintiff did not comply with the North Carchna Rules of Civil Procedute. Tim Terry, a duplicating Equipment Opetator fot the City of Durham, received the summons and complaint. (Terry Aff.'11112-3, Docket Entty 44-1,.) According to Mr. Terrf, "two pieces of certifìed mail were deliveted to the City's mail toom." (Id. 1[ 3.) One piece of certified mail was addressed to "City of Durham, ttn: Registered Agent" and the second was addressed to "Durham S.E.T. (Selective Enfotcement Team), (Id.n3,Ex. A, B.) ,\ttn: Registered ,\gent." Entities such as corpotations and partnerships may be properly served by delivering the summons and the complaint to an authorized agent; however, the North Carolina Rules of Civil Procedure specifìcally state that the summons and the complaint must be addressed to the mayor, city manager, or clerk to ptoperly serve a city. N.C. R. Civ. P. 40X5)-(7). Mr. Terry "placed fthe cetified mail] into the City's intetoffice delivery channels for delivery to the Office of the City Attorney." (Terry ,\ff. I 4, Docket Entty 44-I). Mt. Terry states that he has not, and has never been, authotized to receive any Iegal documents on behalf of anyone employed by the City of Durham. Qd.ffit6-10.) Thus, the Ciry of Durham was not ptopedy served. In his response, Plaintiff contends that even if the City of Durham was not propedy served, it "was made awate of Plaintiffls intentions" to file suit against it. (Docket Entry 45 at 1,.) The Court notes that the City of Dutham may have had actual notice of service. Nonetheless, "[a]ctual notice of a lawsuit is insufficient to confet jurisdiction over the person 5 of a defend ant, and improper service of process, even if it results in notice, is not sufficient to confet such personal jurisdictton." I-and WL 1,669678, u. Food Uon, LLC, No. 3:12-CV-0000ó-GCM,201.2 at x3 CX/.D.N.C. May 1.4, 2012); Shauer a. Cooleemee Volarcteer Fire Dept', No. CIV.A. 1:07CV00175,2008WI-942560,atx2 (À4.D.N.C. Apr.7,2008) (finding the plaintiffs argument thatactualnotice of a lawsuit "should trump the seryice requirement" was meritless); Adams u. GE, Monel Baruk, No. 1:06CV00227, 2007 WL 1847283, at *3 (À4.D.N.C. June 25, 2007) (finding that a pro se plaintifls failure to serve the proper statutory recipients tequired dismissal even though the defendants received actual notice of the lawsuit). The fact that the City of Dutham may have been aware of the lawsuit is insufficient to establish the Court's jurisdiction over the City of Dutham.2 The temaining factors have been met to show good cause to set aside the entry of default. As shown above, the City of Durham has a meritorious defense against PlaintifPs claim. Second, the City of Dutham acted with teasonable promptness to set aside the entry 2 Plaintiff also assetts that he was not and was never informed of how to ptopetly sewe the ^wa"re City of Durham. (Docket E.ttty 45 at 1,.) Plaintiff also contends that even if Mt. Terry v/as not authotized to be served on behalf of the City of Durham he "assume[d] the authority and tesponsibrlity when þe] . . . sþed as 'Registeted Agent'and received the summons and compliant." (Id.) \Ï/hile pro se litigants are given "latitude to coffect defects in ser-yice of process and pleadings," such leniency should not be expanded to encompass granting a Motion for Default Judgment allowing an a'watd of $1,000,000. Comþare Miller a. Nw. Region Library 8d.,348 F. Supp. 2d 563,567 (X{.D.N.C. 2004) (allowing the plaintiff to correct defects in sewice and process), wiTh Reyolds Innouation¡ I-I,C, 851 F. Supp. 2d 961, 963 (À4.D.N,C. 201,2) (refusing to enter default judgment because of questions concerning service of process). There is a sþificant difference between allowing pro se litigant to correct defects to perfect service and process, and grantìng a default judgment aftera pro se litigant improperþ served a defendant. Furthermore, serving an unauthorized petson cannot be deemed sufficient to meet the requirements of Rule 40)Q) even if the unauthoÅzed person accepts the documents. Elkins u. Broome,213 F.R.D. 273,276 (l\,{.D.N.C. 2003) ("Service of process cannot be effected upon Defendant by serving at his place of employment individuals who Íe not authorized to ccept service ofprocess."). 6 of default. The Entry of Default was entered on February 8, 201,6, and the Motion to Set Aside the Default was filed on February 29,201,6. Third, there is no evidence of dilatory action by the City of Durham. Fourth, Plaintiff would not be prejudiced if the entry of default is set aside, because litigation is in its early stages, and the patties have not yet engaged in discovery. F'ifth, neither party has suggested alternative sanctions, but given Plaintiffs failure to effect proper service of ci-tcumstances. Finally, process, such a temedy is inappropriate under it is unclear whether the City of Dutham ot its Attorney was responsible for the default; nevettheless, even if the City of Dutham is tesponsible, the majority of the factors weigh heavily in the City of Durham's Motion to Set Aside the favor. Therefote, Defendants Etttty of Default, with respect to the City of Durham, should be gtanted. Durham Police Department and Durham S.E.T. Lack the Legal Capacity to Be Sued Next, Defendants have shown good cause to set aside the Etrtty of Default with tespect to the Durham Police Department and Durham S.E.T. Defendants argue that Dutham Police Depatmentand Durham S.E.T. are entities that do not have the legal capacity to be sued. Defendants submitted the afßdavit of the City ,A.ttorney Pattick W. Baket addtessing the orgatizaional structure of the Durham Police Department and Durham S.E.T. Attorney Baker states that the Durham Police Department is merely an ^rm of the City of Durham's Government and is not a separate legal entity that has the capacity to be 5, Docket Entty sued. (Baker Aff. I 44-3.) Attorney Baker futther states that Durham S.E.T. is metely a unit within the Dwham Police Department. (Id.fï 6.) "Rule 17þ) of the Federal Rules of Civil Procedute provides that the capacity to sue 7 or be sued shall be detetmined by the law of the state in which the district court is located." Dash u. Walton, Noth No. 1:99CV00350, 2000 ìfL 1229264, at x2 (À4.D.N.C. July 17,2000). "In Carolina a municipal agency is not an entity that may be sued." El-Be1 u. Citl of Thonavillq No. 1:11CY413, 201,2 WL L077896, at *3 (À,{.D.N.C. Mat. 30, 2012), reþort and recommendation adoptel, No. 1:11CY41,3, 2013 WL 5461,819 (À4.D.N.C. Sept. 30, 2013). Furthermore, "[u]nder Nonh Carolina law, a police depattment is not an independent legal entity with the capaciq to sue and be FL, 201,3 '{.pp. sued." Townsend u. Citlt of Faytteuille, WL 2240996, at *1 (E.D.N.C. May No. 5:13-CV-195- 21,, 201,3); V/right u. Town of Zebalon,202 N.C. 540, 543,688 S.E.2d 786,789 Q01,0) ("In North Carohna there is no statute authorizing suít against a police department."). Moreover, this Court has specifically held that the "Police Department of Durham County of North Catolsna?' is not a legal Dørham, No. 1:11CV658,201.4 WL 4923280, entity. Johnnn u. Ci4t of at x1 (I\4.D.N.C. Sept. 30,201.4). Thus, Defendant's Motion to Set Aside Ent"y of Default as to the Durham Police Department, including Durham S.E.T., is proper because these entities constitute one orgatizatton that is simply "a component of the municipality, and, thetefore, lacks the capacity to be sued." Il/right,202 N.C. App. at 543,688 S.E.2d ^t789. Therefore, Defendants have demonstrated good cause to set aside the Entty of Default. IV. CONCLUSION Fot the reasons stated hetein, IT IS THEREFORE RECOMMENDED that Plaintiffls Motion for Entry of Default Judgment Q)ocket Er,try 42) be DENIED. IT IS FURTHER RECOMMENDED I that Defendants' Motion to Set Aside Ent"y of Default and in Opposition to Plaintiffs Motion fot Entry of Default Judgment (Docket Entry 43) be GRANTED. L srrr,cr lregirtrrtc fudge May 5,201.6 Durham, Notth Carobna 9
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