United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY U.S. Magistrate Judge
before the court is a Motion to Set Aside the Finding of
Default and to Vacate Order Granting Default Judgment by
defendants Michael Dazzo (“Dazzo”) and Lexington
Doc Prep, LLC. (“Lexington”). Docket No. 42.
Plaintiff has filed a response in opposition to the motion.
Docket No. 44. Defendants assert that service of process was
never achieved and thus the court has no personal
jurisdiction to grant the default judgment. For the reasons
set forth herein, the undersigned recommends that the motion
civil action was commenced against these defendants by the
filing of an amended complaint on August 14, 2015. Docket No.
7. The Complaint alleges the defendants among others violated
the Telephone Consumer Protection Act (“TCPA”)
and Fair Debt Collection Practices Act (“FDCPA”)
through a series of unwelcomed automated phone calls. Docket
No. 7. The clerk issued a summons as to these defendants on
August 19, 2015. Docket No. 8. The summons were returned
executed as to these defendants by plaintiff on September 9,
2015. Docket Nos. 10 and 11. The clerk entered a default
against defendants Lexington and Dazzo (Docket No. 16) and
following a hearing at which the defendants did not attend
and were unrepresented by counsel, the magistrate judge
recommended that a default judgment be entered for plaintiff
in the total amount of $19, 000.00 against these defendants.
Docket No. 31. The report and recommendation was accepted
(Docket No. 34) and judgment was entered for the plaintiff.
(Docket No. 35). The defendants thereafter filed the pending
motion to set aside the default and vacate the judgment in
this matter. Docket No. 42.
support of their argument to vacate the defendants submit
that they were not properly served and thus the court has no
personal jurisdiction. Id. With respect to Mr.
Dazzo, the defendants contend that service of process
“was claimed by the wrong person.” Docket No.
42-1, p. 3. As such, they contend personal service was not
achieved on Mr. Dazzo. Id. With respect to
defendant, Lexington, defendants contend that while the
summons properly identified Michael Dazzo as the agent
authorized to accept process, neither he nor anyone
authorized on his behalf actually accepted the summons.
rely on the affidavit of Mr. Dazzo wherein he states that he
is the only agent authorized by Lexington to accept service,
that he did not receive service of process for the summons
and the complaint for either himself or Lexington and that he
did not sign the return receipt for certified mail returned
to the court by Plaintiff and does not know who did. Docket
No. 42. Plaintiff responds that applying the standard of
Federal Rule of Civil Procedure 60(b), and the three part
test under United Coin Meter Company v. Seaboard
Coastline Railroad, 705 F.2d 839, 844 (6th Cir. 1983),
for analyzing such a motion, the relief is not proper. Docket
No. 44, pp. 4-7. Specifically, plaintiff contends that the
default “was willful and the result of deliberate
action of Michael Dazzo to list a fake address for himself
with the Secretary of State for Florida for Lexington Doc
Prep, LLC in order to avoid service of process.”
Id. at p. 4. Plaintiff asserts that had the
defendant listed a proper address with the Secretary of State
of Florida service would have been perfected. Id. at
p. 6. He further argues that he would be prejudiced by
setting aside the default because records may no longer exist
and defendants have not alleged a meritorious defense to the
underlying TCPA claims. Id. at p. 7.
proper service of process, consent, waiver, or forfeiture, a
court may not exercise personal jurisdiction over a named
defendant.” King v. Taylor, 694 F.3d 650, 655
(6th Cir. 2012) (citing Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)). It is a
“bedrock principle that a defendant is not obliged to
engage in civil litigation unless the defendant is properly
notified of the action and brought under the court's
authority, i.e., personal jurisdiction, by formal service of
process.” Arthur v. Litton Loan Servicing LP,
249 F.Supp.2d 924, 928 (E.D. Tenn. 2002). Actual notice of
the lawsuit by the defendant is immaterial to the question of
whether that defendant was properly served. LSJ Inv.
Co., 167 F.3d at 322 (citing Friedman v. Estate of
Presser, 929 F.2d 1151, 1155-56 (6th Cir. 1991));
Genesis Diamonds, LLC v. John Hardy, Inc., No.
3:15-cv-01093, 2016 WL 3478915, at *6 (M.D. Tenn. June 27,
2016). “And in the absence of personal jurisdiction, a
federal court is ‘powerless to proceed to an
adjudication.'” King, 694 F.3d at 655
(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 584 (1999)).
federal rules provide that service on an individual be
completed by any manner accepted in the state where the
district court is located or where service is made, or by
“delivering a copy of the summons and the complaint
personally; leaving a copy of each at the individual's
dwelling or usual place of abode with someone of suitable age
and discretion who resides there; or delivering a copy of
each to an agent authorized by appointment or by law to
receive service of process.” Fed.R.Civ.P. 4(e). Service
by certified mail is not permitted under the federal rules
unless accompanied by a waiver of personal service.
Setting Aside Default Judgment Under Rule
Federal Rule of Civil Procedure 55(c), “[t]he court may
set aside an entry of default for good cause, and it may set
aside a final default judgment under Rule 60(b).”
Fed.R.Civ.P. 55(c). Here, because defendants argue that the
court did not have personal jurisdiction to enter judgment
against them, their claim is best construed as one for relief
from a void judgment under Rule 60(b)(4).
general rule, “[w]here Rule 60(b) is invoked to set
aside a default judgment, the court must both consider the
Rule 55 equitable factors . . . and find that one of the
specific requirements of Rule 60(b) is met.”
Thompson v. American Home Assur. Co., 95 F.3d 429,
433 (6th Cir. 1996). However, where a party seeks to set
aside a default judgment because it is void-and not for
reasons like mistake or inadvertence-the court may not deny
the motion based on a weighing of the equities. Jackson
v. FIE Corp., 302 F.3d 515, 524 (5th Cir. 2002). See
also S.E.C. v. Internet Solutions for Business, Inc.,
509 F.3d 1161, 1165 (9th Cir. 2007). “[T]he district
court has no discretion--the judgment is either void or it is
not. If the judgment is void, the district court
must set it aside.” Id. (internal
quotations omitted); Burrell v. Henderson, 434 F.3d
826, 831 (6th Cir. 2006) (“[D]enying a motion to vacate
a void judgment is a per se abuse of discretion.”).
Validity of ...