Barfield v. Danny's Bar and Grill
8:16-cv-00021
D. Neb.May 18, 2016Background
- Plaintiff Jimmy Barfield sued "Danny’s Bar and Grill" and Daniel J. Arcuri on Jan 15, 2016; summonses were issued for both defendants.
- Plaintiff filed a proof of service stating a constable served Linda Lenard on behalf of "Danny’s Bar and Grill" on March 18, 2016.
- Clerk entered default against "Danny’s Bar and Grill" on April 20, 2016; the named trade name moved to set aside default and quash service on April 22, 2016.
- Defendant produced evidence that "Danny’s Bar and Grill" is a trade name, not a separate legal entity, and argued it lacks capacity to be sued and that Lenard lacked authority to accept service for the corporation using the trade name.
- Plaintiff did not show service on Daniel J. Arcuri (president of the corporation) or seek an extension of the Rule 4(m) service deadline (expired April 14, 2016).
- Court concluded the entry of default should be set aside because the trade name was not a proper legal entity and proper service on the corporation/president was not shown; ordered plaintiff to show cause and produce proof of service for Arcuri by June 3, 2016, or face dismissal under Rule 4(m) and NECivR 41.2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of service on "Danny’s Bar and Grill" | Proof of service on Linda Lenard constituted valid service on defendant | "Danny’s Bar and Grill" is only a trade name, not a legal entity; Lenard lacked authority to accept service for the corporation | Entry of default set aside; trade name not a proper defendant and service on the corporation was not proved |
| Whether entry of default should be vacated | (implicit) default was valid and should stand | Default should be set aside for good cause because defendant promptly moved and was not culpable | Vacated under Fed. R. Civ. P. 55(c); good cause found to set aside default |
| Prejudice from delay and ability to defend on merits | Plaintiff did not argue significant prejudice | Defendant timely attacked default and sought to defend on merits; delay due to service issues | No substantial prejudice; judicial preference to decide on merits favors setting aside default |
| Whether case should be dismissed for failure to timely serve Arcuri | N/A (no timely service or extension shown) | Plaintiff failed to show good cause for missing Rule 4(m) deadline | Plaintiff ordered to show cause and produce proof of service for Arcuri by deadline or case dismissed as to defendants under Fed. R. Civ. P. 4(m) and NECivR 41.2 |
Key Cases Cited
- Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781 (8th Cir. 1998) (standard for setting aside entry of default; less demanding than vacating a default judgment)
- Oberstar v. F.D.I.C., 987 F.2d 494 (8th Cir. 1993) (judicial preference to decide cases on the merits)
- Stephenson v. El–Batrawi, 524 F.3d 907 (8th Cir. 2008) (factors for excusing default include culpability, meritorious defense, and prejudice)
- In re Jones Truck Lines, Inc., 63 F.3d 685 (8th Cir. 1995) (delay caused by circumstances beyond defendant’s control weighed against a finding of culpability)