United States District Court, D. New Mexico
MATTHEW J. CHANNON, Plaintiff,
JEFF TAVANGAR, SHELLEY BACA, JENNIFER IRELAND, ARMADA GROUP, INC., NATALIE GANN, and TP-LINK RESEARCH AMERICA CORPORATION, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
TPRA'S MOTION TO SET ASIDE CLERK'S ENTRY OF DEFAULT
JUDGMENT [DOC. 34], AND DENYING AS MOOT REQUEST FOR ENTRY OF
DEFAULT JUDGMENT FOR SUM CERTAIN [DOC.
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant
TPRA's Motion to Set Aside Clerk's Entry of Default
Judgment and Brief in Support Thereof, [Doc. 34, filed
January 24, 2019], and Plaintiffs Request for Entry of
Default Judgment for Sum Certain. [Doc. 33, filed January 24,
2019]. Upon reviewing the parties' briefs and applicable
law, Defendant TPRA's Motion is GRANTED,
and Plaintiffs Request is DENIED AS MOOT.
26, 2018, Plaintiff Matthew J. Channon filed his Complaint.
[Doc. 1]. Plaintiff makes numerous claims against several
defendants, including Defendant TP-Link Research America
Corporation ("Defendant") in his Complaint.
Plaintiff filed his Complaint pro se and was granted
leave to proceed in forma pauperis. Plaintiff
attempted to serve a waiver of service upon Defendant, but it
was returned unexecuted because it was returned unsigned.
[Doc. 8]. The Court thereafter ordered that personal service
of the summons and complaint be imposed on Defendant. [Doc.
11]. The Complaint was served on Sharada Chikkahanumantha,
Defendant's technical recruiter, by the United States
Marshals Service on September 18, 2018. [Doc. 31]. An answer
to the Complaint from Defendant was due to the Court on
October 9, 2018. [Id.]. On January 16, 2019, the
Court was notified that the Complaint had been served and no
answer had been filed. [Id.]. On January 22, 2019,
the Clerk of the Court entered default on Defendant. [Doc.
32]. Two days after the Clerk of the Court entered default on
Defendant, Plaintiff moved the Court to enter default
judgment on Defendant. [Doc. 33]. That same day, Defendant
moved the Court to set aside the Clerk of the Court's
entry of default alleging that the Complaint was improperly
served by Plaintiff through the United States Marshals
Service. [Doc. 34].
Court may set aside an entry of default for good cause.
See Fed.R.Civ.P. 55(c). The good cause standard is a
less demanding standard than the excusable neglect which must
be shown for relief from judgment under Federal Rule of Civil
Procedure 60(b). Dennis Garberg & Assocs., Inc. v.
Pack-Tech Int'l Corp., 115 F.3d 767, 775 n.6 (10th
Cir. 1997). The good cause standard is liberal because
"the preferred disposition of any case is upon its
merits and not by default judgment." Gomes v.
Williams, 420 F.2d 1364, 1366 (10th Cir. 1970).
determining whether to vacate a clerk's entry of default,
the court may consider the following factors: (1) whether the
defendant's culpable conduct led to the default; (2)
whether plaintiff will be prejudiced by setting aside the
entry of default; and (3) whether defendant has a meritorious
defense. Gilmore v. Carlson, 72 Fed.Appx. 798, 801
(10th Cir. 2003). The decision to set aside an entry of
default lies within the discretion of the Court. Ashby v.
McKenna, 331 F.3d 1148, 1152 (10th Cir. 2003).
Improper Service of Process
Court emphasizes that "[h]e who proceeds pro se with
full knowledge and understanding of the risks does so with no
greater rights than a litigant represented by a lawyer, and
the trial court is under no obligation to become an
'advocate' for or to assist and guide the pro se
layman [. . . .]" United States v. Pinkey, 548
F.2d 305, 311 (10th Cir. 1977) (citations omitted); see
also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (holding that it is not "the proper function of
the district court to assume the role of advocate for the pro
has demonstrated good cause to set aside the entry of default
because it was improperly served. "Effectuation of
service is a precondition to suit." Jenkins v. City
of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). The
burden of establishing the validity of service is on the
plaintiff. See Fed. Deposit Ins. Corp. v. Oaklawn
Apts., 959 F.2d 170, 174 (10th Cir. 1992). Plaintiff
failed to respond to this Motion, and thus, he has not
satisfied his burden. D.N.M.LR-Civ. 7.1(b) ("The failure
of a party to file and serve a response in opposition to a
motion within the time prescribed for doing so constitutes
consent to grant the motion."). Nevertheless, the Court
will analyze the issue before it.
the Federal Rules of Civil Procedure, service of process upon
a business entity may be effected "by delivering a copy
of the summons and of the complaint to an officer, a managing
or general agent, or to any other agent authorized by
appointment or by law to receive service or process and-if
the agent is one authorized by statute to receive service and
the statute so requires-by also mailing a copy of each to the
defendant. . . ." Fed.R.Civ.P. 4(h)(1)(B). Rule
4(h)(1)(A) also provides that service may be done by
following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located. See Fed.R.Civ.P.
4(h)(1)(A) (citing Rule 4(e)(1)). New Mexico's procedural
rules for effectuating service on a corporation are similar
to the Federal Rules, providing that service may be made upon
a business entity "by serving a copy of the process to
an officer, a managing or a general agent or to any other
agent authorized by appointment, by law or by this rule to
receive service of process. If the agent is one authorized by
statute to receive service and the statute so requires, by
also mailing a copy to the defendant[.]" NMRA Rule
1-004(G)(1)(a). Additionally, under New Mexico law, if none
of the above are available, "service may be made by
delivering a copy of the process or other papers to be served
at the principal office or place of business during regular
business hours to the person in charge.". Rule
Ms. Chikkahanumantha was the technical recruiter for
Defendant. She is not a managing or general agent and was not
appointed to receive service of process for Defendant, and
thus, could not be served process under these terms of the
rules. Moreover, Ms. Chikkahanumantha is not a "person
in charge" because she reported to the Head of People
Operations, while the Head of People Operations reported to
the Chief Executive Officer, meaning that Ms.
Chikkahanumantha is a lower-level employee. See
Sommervold v. Wal-Mart, Inc., 709 F.3d 1234, 1236 (8th
Cir. 2013) (holding that service of process on a store's
assistant manager did not comply with state statute requiring
that service of process be served on "the person in
charge" of a business entity because assistant manager
reported to a shift manager who in turn reported to the store
manager, who was the person in charge, but who was never
served).Therefore, the service of process was
improper when the United States Marshals Service served
process on Ms. Chikkahanumantha, because she is not a
managing or general agent, she was not appointed to receive
service of process for Defendant, and is not a person in