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DS-Concept Trade Invest LLC v. Atalanta Corp.

United States District Court, D. New Jersey

June 5, 2018

DS-CONCEPT TRADE INVEST LLC, Plaintiff,
v.
ATALANTA CORPORATION et al., Defendants.

          OPINION

          STANLEY R. CHESLER, U.S.D. JUDGE

         This matter comes before the Court on the motion for default judgment, pursuant to Federal Rule of Civil Procedure 55(b)(2), by Defendant Atalanta Corporation (“Atalanta”). For the reasons stated below, the motion will be granted in part and denied in part.

         Atalanta filed an Answer which asserted, inter alia, cross-claims against Defendant Gormet Food Imports LTD (“Gormet LTD”), Gourmet Food Imports, LLC (“Gourmet LLC”), and Defendant Traian Jikovski (“Jikovski.”) The Answer also asserted third-party claims against Jikovski. Atalanta now moves for default judgment on these cross-claims and third-party claims.

         As to Jikovski, the motion for entry of default judgment must be denied because Atalanta has not demonstrated that Jikovski was properly served. “A default judgment entered when there has been no proper service of the complaint is, a fortiori, void.” Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985). When Atalanta requested an entry of default against Jikovski, it submitted an attorney certification which stated:

On or about June 23, 2017, Atalanta, under the Court's direction, served Jikovski with a summons and the Pleading through Gourmet's then-counsel, Gavrilov & Brooks. Atalanta also served Jikovski with process on June 27, 2017 by posting a copy of the papers to his last-known residential address (after unsuccessfully attempting to serve Jikovski personally six times) and mailing copies of the papers to both Jikovski's last-known residential address and Gourmet's last-known address.

(Newman Dec. ¶ 9.) Atalanta's brief does not discuss the question of whether Jikovski was properly served within the requirements of Federal Rule of Civil Procedure 4(e), which states:

Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by:
(1) 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 or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) 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
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

         The present record contains no evidence that Gavrilov & Brooks are Jikovski's agents, nor that the requirements of Rule 4(e)(2) (A) or (B) were satisfied. The only remaining questions are whether Atalanta's attempts to serve Jikovski constitute proper service under the state law of New Jersey (the forum state) or of California (the state in which Jikovski resides, as alleged by Atalanta.) New Jersey's rules for service of process are contained in N.J. Court Rules, R. 4:4-4. Rule 4:4-4(a) does not allow service by the “post and mail” method used by Atalanta. The present record contains no evidence that Atalanta has satisfied the requirements for the alternative service methods stated in Rule 4:4-4(b). Although Cal. Code. Civ. Proc. § 415.30 allows service by mail in California, it requires a written acknowledgment of receipt for completion of service, and no such acknowledgement appears in the present record. It does not appear to this Court that the “post and mail” method of service employed by Atalanta constitutes proper service under Federal, New Jersey, or California law. Because the record does not show that Jikovski was properly served, the motion for default judgment against him must be denied without prejudice.

         As to the cross-claims against Gormet LTD and Gourmet LLC (collectively, “the Gourmet entities”), these Defendants have appeared in this case, and so there is no question about whether they have been properly served. On July 19, 2017, Magistrate Judge Waldor granted the motion to withdraw filed by counsel to Gormet LTD and Gourmet LLC, and ordered Gormet LTD and Gourmet LLC to retain new counsel within thirty days. No. new counsel have appeared in the case. On December 29, 2017, Atalanta requested ...


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