United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE
Honorable David M. Lawson, District Judge
before the Court is the motion (Docket No. 284) of Defendant
Lavenia Sue Brown, a/k/a Susie Tremblay-Brown, to set aside
default judgment. Brown filed a memorandum of law in support
of her motion (Docket No. 285). Assignee of Record James E.
Shelton filed a response in opposition (Docket No. 288), and
Brown filed a reply in support (Docket No. 289). By Order
entered October 11, 2018, Brown's motion was referred to
the Magistrate Judge for a report and recommendation. (Docket
No. 291). For the reasons set forth below, the undersigned
respectfully recommends that Plaintiff's motion (Docket
No. 284) be granted.
Craig Cunningham (“Cunningham”) is a resident of
Nashville, Tennessee. Cunningham filed this pro se
lawsuit against seven defendants seeking damages under the
Telephone Consumer Protection Act, 47 U.S.C. §§ 227
et seq. (“TCPA”) on July 31, 2015.
(Docket No. 1). Plaintiff subsequently filed three amended
complaints (Docket Entry Nos. 5, 8, and 41) expanding to
twenty the number of defendants sued under the TCPA,
including the addition of Defendant Lavenia Sue Brown a/k/a
Susie Tremblay-Brown (“Brown”). The undersigned
presumes that the parties are familiar with the underlying
facts and procedural history of this lawsuit and, therefore,
recites only the information needed for context to decide
Clerk issued a summons as to Brown on September 22, 2015.
(Docket No. 13). Brown's summons was directed to Susie
Trembley-Brown, 925 Lakeville Street #233, Petaluma, CA
94952. (Id.). Cunningham returned Brown's
summons as executed on October 19, 2015. (Docket No. 26). The
Proof of Service attached to the returned summons stated that
the summons was served via the United States Postal Service
by certified mail with return receipt requested.
(Id.). The return receipt was signed by a Matt Tyler
on September 26 (presumably, although not indicated, of
2015). (Id.). Neither the Agent box nor the
Addressee box next to the signature of Mr. Tyler was checked
on the return receipt. (Id.).
moved for entry of default by the Clerk against Brown after
she failed to file an answer. (Docket No. 66). In his motion,
Cunningham represented that Brown had been served,
(id. at 2), relying on the certified mail return
receipt signed by Mr. Tyler. The Clerk entered default
against Brown on January 4, 2016. (Docket No. 90). Cunningham
then filed a motion for default judgment (Docket No. 233),
which the Court granted on August 16, 2017. (Docket No. 246).
By assignment dated November 13, 2017, and filed with the
Court on November 17, 2017, Cunningham assigned all rights,
title and interest in the judgment to James Shelton. (Docket
No. 255). The Court entered its second corrected judgment
against Brown on January 16, 2018. (Docket No. 274).
now moves the Court to set aside the entry of default and
default judgment. In support of her motion, Brown argues that
she was not properly served and, therefore, that the Court
lacked personal jurisdiction. (Docket No. 285 at 3-4). Brown
declares that she has never worked, lived, or received mail
at the address to which the summons was delivered.
(Declaration of Lavenia Sue Brown, Docket No. 286-1 at
¶¶ 10-11). Brown further states that she has never
known or worked with an individual named Matt Tyler, nor has
she authorized anyone with that name to receive mail on her
behalf. (Brown Declaration, Docket No. 286-1 at ¶ 13).
Brown argues that, without proper service, the Court did not
have jurisdiction to enter default or default judgment.
(Docket No. 285 at 4-5). Based on this alone, Brown states
that the entry of default and default judgment should be set
aside. (Id. at 5).
alternative, Brown argues that she has satisfied the weight
of the equities required by United Coin Meter Co. v.
Seaboard Coastline R.R., 705 F.2d 839, 845
(6th Cir. 1994) to justify relief from the
defaults. Brown contends that the default was not entered
based on any culpable conduct by herself as she did not know
of the lawsuit's existence or the judgment until her bank
account was seized. (Docket No. 285 at 5). Brown asserts that
she has a meritorious defense as she neither arranged for nor
placed any automated calls to Cunningham. (Id.).
Brown finally argues that Cunningham will suffer no prejudice
as he will only be required to litigate his case if the
motion is granted and because he can continue to enforce his
judgment against the other defendants in the case.
(Id. at 5-6).
of Record James E. Shelton (“Shelton”) filed a
response in opposition to Brown's motion. (Docket No.
288). Shelton argues Brown was properly served as her
co-defendant and alleged romantic partner, Jeffrey Howard,
received mail at the same address to which Brown's
summons was mailed. (Id. at 2, 3-4). Shelton
contends that Brown had knowledge of the lawsuit and that
service was proper based on Brown's statement to a credit
card company in response to a chargeback related to the facts
underlying the lawsuit. (Id. at 2, 5-6). Shelton
further contends that Brown had knowledge of the suit as a
signature purporting to be Brown's appears on the
certificate of service for Jeffrey Howard's answer.
(Id. at 2, 4-5). Shelton finally argues that Brown
failed to timely move the Court to set aside default and that
her alleged evasive, dishonest, and culpable conduct warrants
denial of relief. (Id. at 2-3, 7-11). Shelton's
arguments rely largely on an affidavit submitted by
Cunningham, in which he states under penalty of perjury
various details of business transactions between he and an
individual named Susie Tremblay-Brown and that he “knew
that [another defendant, James Howard, and Brown] were dating
and living together at the time” on which Brown was
ostensibly served. (Docket No. 288 at 14-59).
replied to Shelton's opposition, arguing that the burden
of proof of proper service rests with Shelton and that
Shelton has failed to meet this burden. (Docket No. 289 at
2). Brown first argues that the exhibits attached to
Shelton's response were unauthenticated and inadmissible.
(Id. at 1). Brown then points out that the address
served by Cunningham is the address of a strip mall, not a
personal residence. (Id. at 1-2). Brown adds that
Shelton has failed to provide an affidavit of Matt Tyler
demonstrating that he was authorized to accept mail for her.
(Id. at 2). Brown contends there is no authenticated
document purporting to be a statement from Brown in relation
to Shelton's argument that she had knowledge of the
lawsuit via a chargeback dispute. (Id. at 2). Brown
further contends that Shelton's argument related to her
signature on Jeffrey Howard's answer is not plausible and
that Shelton failed to provide an affidavit from Howard to
affirm his allegation. (Id. at 3). Brown argues that
her motion was timely given, that she did not learn of the
lawsuit until her bank account was frozen and that without
assets it took her time to raise money to retain counsel.
(Id. at 2). Finally, Brown maintains that the
affidavit of Cunningham attached to Shelton's response
shows that she has a meritorious defense to the TCPA claims
as the affidavit indicates that Cunningham initiated the
phone conversations with her. (Id. at 3).
“requirement of proper service of process is not some
mindless technicality.” Friedman v. Estate of
Presser, 929 F.2d 1151, 1156 (6th Cir.1991) (citation
and internal quotation marks omitted). Indeed, “[d]ue
process requires proper service of process for a court to
have jurisdiction to adjudicate the rights of the
parties.” O.J. Distrib., Inc. v. Hornell Brewing
Co., 340 F.3d 345, 353 (6th Cir. 2003) (citation
omitted). “[W]ithout 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. v. O.L.D.,
Inc., 167 F.3d 320, 322 (6th Cir. 1999) (citing
Friedman, 929 F.2d at 1155-56); 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)).
Relief from a ...