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Simpson v. Xerox Education Services, LLC

United States District Court, W.D. Kentucky, Louisville Division

October 6, 2017

ROSE M. SIMPSON PLAINTIFF
v.
XEROX EDUCATION SERVICES, LLC, d/b/a ACS EDUCATION SERVICES DEFENDANT

          Rose M. Simpson, pro se

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge.

         This matter is before the Court on multiple motions for entry of default by plaintiff Rose M. Simpson (DN 11, 15), as well as a motion to dismiss by defendant Conduent Education Services, LLC. (DN 13.) Fully briefed, these matters are ripe for decision.

         I. Background

         Simpson initially filed her complaint on February 8, 2017. (DN 1.) She named one defendant in her complaint: “Xerox Education Services LLC, dba ACS Education Services” (“Xerox”). Simpson indicated in her complaint that she consolidated her student loans with Xerox in 2002 and subsequently paid back those loans in full in 2005. However, she alleges that Xerox began attempting to collect from her in 2011, despite receiving proof in 2005 that her loans had been paid in full. Specifically, she alleges that $67, 202.04 from her father's estate was improperly used to offset her account with Xerox without her consent. She additionally alleges that her signature on two promissory notes from 2005 and 2006 was forged.

         The complaint was screened pursuant to this Court's pro se screening process and permitted to proceed on April 26, 2017. (DN 5.) The Court ordered that summons be issued and service effected on Xerox by the U.S. Marshall Service. On June 22, 2017, Simpson notified the Court that Xerox's address had changed since the initiation of her suit and requested that summons be reissued. (DN 7.) She requested that summons be issued for “Conduent Inc., aka Xerox Education Services, aka ACS Education Services.” The Court granted her request (DN 8) and reissued summons with the requested name of the defendant on July 18. (DN 9.) However, on July 19, the original summons was returned executed, as delivery of the summons occurred on June 26. (DN 10.) Simpson then filed her first motion for default on July 28, as more than 21 days had passed since service had been effected pursuant to the original summons. (DN 11.)

         Her motion for default repeats the allegations in her complaint verbatim, with an additional paragraph specifically outlining the damages she is seeking. Subsequently, on August 4, the summons for Conduent, Inc. was returned executed, as service had been effected on August 3. (DN 12.)

         On August 24, the present motion to dismiss was filed by “Defendant Conduent Education Services, LLC f/k/a Xerox Education Services, LLC, d/b/a/ ACS Education Services, LLC.” (DN 13, at 1.) The motion states that Conduent Education Services is appearing in this action to defend Xerox “as corporate successor in interest.” (Id. at 5.) While also raising specific grounds in favor of dismissal, the motion notes that

Conduent, Inc. is a publicly traded company that is not a “dba” for Xerox Education Services, LLC. Rather, it was formed in 2017 as a divestiture from Xerox Corporation. It currently functions as the parent company for CES [Conduent Education Services], which is the successor of the named defendants.

(Id.) Thus, the motion argues that no claims have actually been asserted against any entity known as “Conduent, Inc.” and that this entity should be dismissed from the action. Subsequently, on September 5, Simpson filed her second motion for default, identifying the defendants in the caption as “Conduent Education Services, LLC, f/k/a Xerox Education Services, LLC, d/b/a ACS.” (DN 15.) In this motion, Simpson argues that Conduent Education Services failed to timely file a response to the complaint after being served, while also responding to the arguments raised in the motion to dismiss.

         II. Discussion

         A. Motions for Default

         The Court first turns to Simpson's motions for default. Fed.R.Civ.P. 55(a) states that a party's default must be entered when a defendant “has failed to plead or otherwise defend” against the action. Beginning with Simpson's first motion for default, the Court will deny the motion, as Simpson failed to “show by affidavit or otherwise” that Xerox had failed to plead or otherwise defend itself in the action, as is required by Rule 55(a). Simpson's motion is simply a restatement of her complaint with additional details regarding her damages; nowhere does she note how Xerox has failed to defend itself against her allegations. This deficiency is compounded by the fact that Simpson had previously represented to the Court that Xerox was unlikely to receive the summons originally directed to it and that new summons must be issued and sent to a different address. (See DN 7.) When Simpson filed the motion for default on July 28, the new summons had yet to be executed, as that would not happen until August 3. (See DN 12.) Although the original summons appears to have reached a representative of “ACS Education Services” on June 26, the Court is hesitant to enter default against an entity when representations were made to the Court that (1) service of the entity at that address would likely be unsuccessful and (2) a better address exists for effecting service. These representations bore true: Xerox did not respond to the original summons, but upon being served at the correct address, it did (through its “corporate successor in interest, ” Conduent Education Services). (DN 13, at 5.) Thus, even if Simpson had adequately shown how Xerox failed to defend itself in the present action, good cause exists to excuse such failure. See Fed. R. Civ. P. 55(c) (entry of default may be set aside for good cause). Therefore, Simpson's first motion for default (DN 11) is DENIED.

         Turing to Simpson's second motion for default against Conduent Education Services, the Court will deny the motion for two reasons. First, Conduent timely filed a Rule 12 motion, as it was served on August 3 and filed its motion 21 days later on August 24. See Fed. R. Civ. P. 12(a)(1)(A)(i). And second, the motion for default was only filed after Conduent had filed its Rule 12 motion. Thus, Conduent had already taken action to “otherwise defend” itself by the time Simpson moved for entry of default. Accord Nwabue ...


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