United States District Court, W.D. Tennessee, Western Division
ELLEN T. BALENTINE, Plaintiff,
WANITA ALLEN and SWEETNESS SWEETS, INC., Defendants.
ORDER DENYING DEFENDANTS' MOTION TO SET ASIDE JUDGMENT
JON P. McCALLA, District Judge.
Before the Court is Defendants' Motion to Set Aside Judgment, filed June 24, 2014. (ECF No. 45.) For the reasons stated below, Defendants' Motion is DENIED.
A. Procedural Background
Plaintiff filed a Complaint on May 29, 2013. (ECF No. 1.) On June 26, 2013, Plaintiff docketed on ECF an entry purporting to establish that service had been effected as to Defendant Sweetness Sweets, Inc. (ECF No. 7.) That return of service was signed, and indicated service had been effected on Alyshan Taylor, who, according to the return of service, "is designated by law to accept service on behalf Sweetness Sweets, Inc." (Id.) On August 12, 2013, Plaintiff docketed on ECF an entry purporting that service had been effected as to Defendant Wanita Allen. (ECF No. 11.) That return of service was signed and stated that the summons was given to a relative at Allen's residence. (Id.)
Plaintiff moved for entry of default against Defendant Sweetness Sweets, Inc. on July 17, 2013 (ECF No. 8) and against Defendant Allen on August 29, 2013 (ECF No. 13). The Clerk entered an Order of Entry of Default as to Sweetness Sweets, Inc. on July 22, 2013 (ECF No. 9) and as to Allen on September 11, 2013 (ECF No. 14). On September 11, 2013, Plaintiff moved for Default Judgment as to Allen (ECF No. 15), which the Clerk granted on September 12, 2013 (ECF No. 16). The Clerk entered an Amended Default Judgment as to Allen on September 20, 2014 (ECF No. 19), and a Second Amended Default Judgment on September 24, 2014 (ECF No. 20).
On October 1, 2013, the Court entered a Judgment in favor of Plaintiff against Defendants. (ECF No. 21.)
Allen and Sweetness Sweets, Inc. each filed a Motion to Vacate and Set Aside Default Judgment on January 9, 2014. (ECF Nos. 40, 41.) The Court denied those motions without prejudice on February 4, 2014 for failing to adhere to the Local Rules. (ECF No. 43.) On June 24, 2014, Defendants filed the instant Motion to Set Aside Judgment and to Stay Writ of Execution, alleging that the judgment was void under Rule 60 due to improper service. (ECF No. 45.) Plaintiff filed a Response on July 7, 2014 (ECF No. 47), and Defendants filed a Reply on July 16, 2014 (ECF No. 48). Without leave of Court, Defendants filed a Supplemental Reply on January 6, 2015. (ECF No. 60.) Plaintiffs then filed a Surreply on January 6, 2015. (ECF No. 62.)
On January 6, 2015, the Court held an evidentiary hearing to determine whether service was proper.
B. The Evidentiary Hearing
Alyshan Taylor was the first witness, and testified as follows. Taylor worked for Sweetness Sweets as a District Manager. She managed multiple Sweetness Sweets locations. Taylor knew Plaintiff Balentine, who she recalled was manager of the Southland location. With respect to the instant action, Taylor recalled someone coming to the store in June of 2013 in order to try to serve process on Wanita Allen. The process server asked for Wanita Allen when he came to the store. When Taylor told the process server that Allen was not available, the process server put down the envelope and stated, "Well, I'm serving her." He then turned around and walked out.
On cross-examination, Taylor acknowledged that, at the time of the attempted service, she spoke with Allen on a daily basis. She denied, however, that she had ever reviewed the documents that were left or ever told Allen about the attempted service. According to Taylor, they were not "a top priority" for her at the time. She did acknowledge, though, that she was aware of the lawsuit that Balentine had filed at the time the papers were left.
The next witness to testify was Scott Edmond McCard. McCard testified as follows. McCard worked as a process server for Donati Law. He went to a "boutique thing" at the Oak Court Mall in order to attempt to serve process on Allen. When he could not find her, he spoke to her on the phone either on that day or a few days after. He told Allen who he was and about his attempt to serve her. Allen responded that she was in Texas and would be returning soon to Memphis. Allen told McCard that she would get in touch with him when she visited. He brought the service papers back to the law office after his attempts to serve Allen and Sweetness Sweets.
On cross-examination, McCard stated that he had made two attempts to serve Allen: once at her business and once at home. He could neither recall how he found out Allen's phone number nor the name of the person he spoke to at Sweetness Sweets. He remembered, however, that the person he spoke to at Sweetness Sweets was female. When he spoke to Allen on the phone, he did not ask Allen if she lived in Texas and did not ask for an address where she could be served.
Mario P. Allen, Wanita Allen's father, testified next. His testimony is summarized as follows. Wanita Allen lived at 3829 Annette Lane in 2007. Mario Allen holds no position with Sweetness Sweets. On a Thursday at around 4:00 p.m., a woman came to the house at 3829 Annette Lane. The woman asked whether Wanita Allen was there, and Mario Allen responded that she was not. The woman then asked if she could put her paperwork on the counter. Mario Allen told her that she could not. At that point, the process server went out the back door. Again, the woman asked if she could just leave the paperwork. Mario Allen responded, "No ma'am." A couple of weeks later, Mario Allen discovered the papers stuck in his gate outside. He never spoke to Wanita Allen about the interaction. As to Wanita Allen, Mario Allen stated that she had moved to Cordova in 2007, and then had moved downtown. In 2010 or 2011, Wanita Allen moved to Texas. When she visits Memphis, she typically stays at a hotel.
On cross-examination, Mario Allen stated that he does not get involved in his daughter's business. He denied getting angry at the process server and denied chasing her out. He said that his mother has dementia, so he does not raise his voice. According to Mario Allen, he had gone in and out the outside gate several times before seeing the papers. He said that Wanita Allen had stayed at the Annette Lane house, but it was only one or two nights at a time between 2008 and 2009. He then clarified that it was no more than two nights total that she had stayed. Mario Allen acknowledged that he knows Balentine. According to Mario Allen, he loaned Balentine $3000 in 2011 or 2012 to help her open a business, and Balentine is still paying it off.
The next witness was Wanita Allen, who testified as follows. She lives in Garland Texas, and has resided in Texas since 2012. She is the sole owner of Sweetness Sweets. Sweetness Sweets is made up of several women's boutiques in which necklaces and earrings are sold. Some of the boutiques also do piercings and tattoos. One Store Manager manages the Southland and Oak Court locations of Sweetness Sweets, and each has its own Assistant Manager. Wanita Allen always deals with her Store Managers. All of her managers know that she lives in Texas, and they all know that they are not allowed to accept any documents that come into the store. Wanita Allen was never served personally and recalls no attempts to serve her. During 2013, she never lived at the Annette Lane address. She lived in Texas at that time. Wanita Allen only found out about the lawsuit when she discovered in October of 2013 that there was a default judgment against her. She never spoke to her father about the process server at the Annette Lane home.
On cross-examination, Allen reiterated that she told her employees not to accept paperwork in general, including certified mail. She said that she had no recollection of speaking to McCard. She "receives a lot of calls." Allen acknowledged, however, that she would have remembered a call about a lawsuit. She then stated that she did not receive such a call. Allen then discussed the corporate status of Sweetness Sweets. She stated that it was incorporated in 2008, but was dissolved in 2012. Allen acknowledged that she was listed on the 2008 corporate filings as the registered agent at the Annette Lane address. She further acknowledged ...