United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS AND
MOTION TO VACATE
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendant Managed Staffing,
Inc's (“Managed Staffing”) Motion to Dismiss
for Insufficient Service of Process [R. 11] and Motion to
Vacate Default Judgment [R. 13]. The defendant removed this
case from the Circuit Court of Jefferson County, Kentucky on
February 16, 2018 on the basis of diversity jurisdiction. [R.
1] The defendant then filed the instant motions on March 9,
2018 and April 10, 2018, respectively. [R. 11, R. 13] Both
motions argue that process was improperly served, warranting
the dismissal of the Complaint (or the quashing of service)
and the vacatur of the default judgment entered in the state
court. See Id. These motions have now been fully
briefed. [R. 12, R. 14, R. 16, R. 17] For the reasons stated
herein, the Court will grant the Motion to Vacate, but will
deny the Motion to Dismiss, and will grant the plaintiff
additional time to properly serve the defendant.
the validity of the service of process is contested, the
plaintiff bears the burden of proving that proper service was
effected.” United States v. Real Prop. &
Residence Located at 4816 Chaffey Lane, No. CIV.A
5:08-CV-410JMH, 2010 WL 147211, at *2 (E.D. Ky. Jan. 8, 2010)
(citation omitted); Sawyer v. Lexington-Fayette Urban
Cty. Gov't, 18 Fed.Appx. 285, 287 (6th Cir. 2001).
“Kentucky law determines the validity of service in
state court prior to the defendant's removal.”
Ashford v. Bollman Hat Co., No. CIV.A. 10-192-JBC,
2011 WL 127153, at *2 (E.D. Ky. Jan. 14, 2011) (citing 4A
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1082 (3d ed. 2010));
see also Bates v. Harp, 573 F.2d 930, 933 (6th Cir.
1978) (analyzing adequacy of service prior to removal under
applicable state law).
defendant argues that, assuming that the plaintiff meant to
invoke Kentucky's long-arm statute as the basis for
personal jurisdiction, Ky. Rev. Stat. Ann. § 454.210
governs the proper method for service of process. [R. 11 at
2] The plaintiff does not dispute this. Under Kentucky's
long-arm statute, when personal jurisdiction over a person is
authorized by that statute, “service of process may be
made on such person, or any agent of such person, in any
county in this Commonwealth, where he may be found, or on the
Secretary of State who, for this purpose, shall be deemed to
be the statutory agent of such person.” Ky. Rev. Stat.
Ann. § 454.21(3)(a). The statute is read such that the
person or his agent must be found within the state of
Kentucky. See Capital Delivery, Ltd. v. PJ COMN
Acquisition Corp., No. 3:11-CV-440-H, 2012 WL 122569, at
*1 (W.D. Ky. Jan. 17, 2012); Smith v. Kentucky Fried
Chicken, No. CIV.A. 06-426-JBC, 2007 WL 162831, at *2
(E.D. Ky. Jan. 18, 2007) (reading statute to require service
on a person “where he may be found [in
it is clear that the defendant was not served in accordance
with Kentucky's long-arm statute. As the defendant states
in its Motion to Dismiss, “the only attempt at service
was via certified mail to Managed Staffing's agent for
process, ‘Mr. Abid Abedi' at 1581 Dallas Parkway,
Addison, Texas 75001. The [certified] mail receipt card
indicates that it was actually received by Joy Miles, not the
agent for process.” [R. 11 at ¶ 2] “Valid proof
of service on the record create[s] a presumption of valid
service, a presumption a defendant must overcome.”
Evans v. Molina, No. 5:14-CV-00330, 2015 WL 5723590,
at *3 (E.D. Ky. Sept. 29, 2015) (internal quotation marks and
citations omitted). However, the Court finds that the
defendant has overcome this presumption. As shown by the
certified mail receipt, this attempt at service was addressed
neither to the Secretary of State, nor to anyone found within
the state of Kentucky.
the defendant has overcome the presumption of proper service,
and the plaintiff has not met its burden to prove that proper
service was effected. There is no other attempt at service
evidenced in the record. Further, the plaintiff does not
articulate any argument that service need not have been made
in compliance with Kentucky's long-arm statute and was
properly completed pursuant to another provision of Kentucky
plaintiff's remaining counter-argument is that the
defendant should be equitably estopped from claiming lack of
notice or service because it “purposely ignored”
the litigation despite having actual notice. [R. 12 at 2]
However, the sole case the plaintiff cites in support of this
argument, Ashford v. Bollman Hat Co., provides no
support for the proposition that actual notice is a basis for
equitable estoppel in the context of service of process. On
the contrary, in Ashford, service was properly
effected pursuant to Kentucky's long-arm statute, and the
court applied equitable estoppel to an argument concerning
the running of the removal period - not an argument
concerning failure to properly serve the defendant.
Ashford v. Bollman Hat Co., 2011 WL 127153 at *2-3.
Court has not only the ability but the duty to vacate,
pursuant to Fed.R.Civ.P. 60(b), a void default judgment -
including one rendered by a state court prior to removal.
See, e.g., Labuy v. Peck, No. 5:10-CV-158-JMH, 2010
WL 4313336, at *4 (E.D. Ky. Oct. 25, 2010) (citing Munsey
v. Testworth Labs., Inc., 227 F.2d 902, 902 (6th Cir.
1955)) (holding that federal court could vacate default
judgment rendered by state court and that “[u]pon
proper removal, this Court will take the case ‘as
though everything done in the state court had in fact been
done in the federal court.'”); Bertram v.
MetLife, No. 3:06CV-362-S, 2007 WL 594699, at *3 (W.D.
Ky. Feb. 16, 2007) (same); Montgomery v. Citimortgage,
Inc., No. 10-11729, 2010 WL 2630440, at *2 (E.D. Mich.
June 28, 2010), aff'd (July 14, 2014) (citing
Munsey, 227 F.2d at 903) (“[A]ny judgment in
danger of being set aside in a state court faces the same
hazard after a case has been removed to a federal
forum”); Ky. R. Civ. P. 60.02 (authorizing relief from
a final judgment on various grounds, including that it is
to properly serve the defendant with process renders a
default judgment void and subject to being set aside.
Foremost Ins. Co. v. Whitaker, 892 S.W.2d 607, 609
(Ky. Ct. App. 1995) (“[B]ecause service upon [the
defendant] by the Secretary of State was insufficient, the
default judgment entered by the trial court was void under CR
60.02(e) for want of personal jurisdiction”);
Empire Servs., Inc. v. Kanza, 996 F.2d 1214 (6th
Cir. July 1, 1993) (unpublished table opinion) (“If
service of process was not proper, the court must set aside
the default judgment”); Soloway v. Huntington
Nat'l Bank, No. 1:12-CV-507, 2013 WL 12122008, at *3
(W.D. Mich. June 5, 2013) (“Entry of default and
default judgment must be set aside . . . where service of
process was improper. . . . If the underlying judgment is
void, it is a per se abuse of discretion for a
district court to deny a movant's motion to vacate the
judgment under Rule 60(b)(4)”) (citations omitted)
(internal quotation marks omitted); Bertram v.
MetLife, 2007 WL 594699 at *3 (“We find that good
cause has been shown for setting aside the default and
damages judgments. Service upon [the defendant] having been
insufficient, the judgments are void”). Thus, because
service was improper in this case, the default judgment was
void and the Court will grant the Motion to Vacate.
failure to properly serve the defendant can also result in
dismissal of a removed case. See, e.g., Bates, 573
F.2d at 932 (affirming district court's dismissal of
action where district court held that plaintiffs' failure
to obtain sufficient process under state law deprived federal
court of jurisdiction); Capital Delivery, 2012 WL
122569 at *1. However, “the better practice is to quash
insufficient service of process unless it is clear that the
plaintiff cannot effect proper service.” Smith v.
Kentucky Fried Chicken, No. CIV.A. 06-426-JBC, 2007 WL
162831, at *3 (E.D. Ky. Jan. 18, 2007); see also 28
U.S.C. § 1448 (authorizing completion of service or
issuance of new process pursuant to the Federal Rules of
Civil Procedure where process served prior to removal proves
to be defective). It is far from clear to the Court that the
plaintiff cannot effect proper service. Further, Fed.R.Civ.P.
4(m) provides for additional time for a plaintiff to properly
serve a defendant even where service has not been timely
made. Capital Delivery, 2012 WL 122569 at *2. Under
Fed.R.Civ.P. 4(m), “the Court must first determine
whether there is good cause for Plaintiffs' failure to
timely execute service. If not, the Court must determine in
its discretion whether to dismiss the action or allow
Plaintiffs additional time.” Bradford v. Bracken
Cty., 767 F.Supp.2d 740, 753 (E.D. Ky. 2011). The
plaintiff bears the burden of showing good cause.
the plaintiff did not articulate any reason for its failure
to timely execute service, and thus has failed to show good
cause. However, because it appears that the defendant will
not be prejudiced in so doing, the Court will exercise its
discretion under Fed.R.Civ.P. 4(m) to extend the time for
service, despite there being no showing of good cause.
See Capital Delivery, 2012 WL 122569 at *2.
having reviewed the Motions, and the Court being otherwise
sufficiently advised, IT ...