HUGH LAWSON, Senior District Judge.
Before the Court is the motion of Defendant The Kingdom Group of Companies, LLC, d/b/a The Kingdom Group, to set aside the default judgment entered on October 12, 2017. (Doc. 8). Defendant argues that the default judgment is void because Plaintiff Hessmorganhouse, LLC, d/b/a HMH Consulting, did not properly serve Defendant. Alternatively, Defendant argues that it is entitled to relief from the judgment because Plaintiff failed to provide Defendant notice of the default proceedings and because the entry of default was the result of excusable neglect. After review of the pleadings and the documents submitted by the parties, and with the benefit of oral argument, the Court finds that service was insufficient and vacates the default judgment.
Plaintiff filed this breach of contract lawsuit against Defendant on July 17, 2017, alleging that Defendant is indebted to Plaintiff in the amount of $113,818.00 plus interest, costs, and attorney's fees. (Doc. 1). On July 24, 2017, Plaintiff filed an executed Proof of Service form, indicating that on July 19, 2017, Plaintiff served Defendant by delivering a copy of the Summons and Complaint to Hannah Miller, who the process server represented was authorized to accept service on behalf of Defendant. (Doc. 4, p. 2). The process server attached an addendum to the service form in which he explained the events that transpired on the date of alleged service. (Doc. 4, p. 3).
The process server indicated that when he arrived at Defendant's place of business, he was greeted by a woman by the name of Erin Folsom. (
Defendant failed to respond to Plaintiff's Complaint. Accordingly, on August 11, 2017, Plaintiff filed an Application for Entry of Default. (Doc. 6). The Clerk of Court entered default that same date. Plaintiff filed a Motion for Default Judgment (Doc. 7) on August 17, 2017, which this Court granted on October 2, 2017 (Doc. 8). Defendant filed the present Motion to Set Aside Default Judgment (Doc. 10) on November 14, 2017, arguing that the judgment was void because Hannah Miller was not authorized to accept service on behalf of Defendant.
The Court may set aside a default judgment under Rule 60(b). Fed. R. Civ. P. 55(c). Federal Rule of Civil Procedure 60(b)(4) provides that a court may relieve a party from a final judgment when a judgment is void. Insufficient service "implicates personal jurisdiction and due process concerns;" therefore, "where service of process is insufficient, the court has no power to render judgment and the judgment is void."
Pursuant to Rule 4(h), service on a corporation may be accomplished "by delivering a copy of the summons and of the complaint to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process." Fed. R. Civ. P. 4(h)(1)(B). Service on a corporation may also be made in accordance with the state law in which the district court is located, which in this case is Georgia. Fed. R. Civ. P. 4(e)(1) and (h)(1)(A). Under Georgia law, service on a corporation is to be directed "to the president or other officer of such corporation or foreign corporation, a managing agent thereof, or a registered agent thereof." O.C.G.A. § 9-11-4(e)(1)(A).
It is undisputed that Zach Lewis is both Defendant's President and registered agent. (Doc. 10-1, ¶ 1). It is further undisputed that Plaintiff did not serve Mr. Lewis. Rather the question is (1) whether Hannah Miller held a managerial position that would otherwise authorize her to accept service; or (2) whether Zach Lewis conferred authority upon Ms. Miller to receive service in his absence. Defendant represents that Hannah Miller served as an administrative assistant to Nick Lewis, Defendant's Vice President, and that her primary responsibilities were secretarial and administrative in nature. (Id. at ¶ 3; Doc. 13-1, ¶ 4). Plaintiff, however, submits that Ms. Miller's responsibilities extended beyond merely secretarial, as suggested by her title of Brokerage and Marketing Services Representative.
While an employee need not be an officer of a corporation in order to accept service, "if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization."
Defendant disputes that Hannah Miller held any managerial role.
For the foregoing reasons, the Court