Merchants Bonding Company v. Siteworx Design Build, LLC, 2:16-cv-00127

Merchants Bonding Co. (plaintiff) issued construction bonds and alleges Siteworx Design Build, LLC and Kenneth M. Holland (defendants) defaulted, forcing plaintiff to pay claims under those bonds.
The parties executed a General Application and Agreement of Indemnity (GAI) obligating defendants to indemnify plaintiff for losses, attorneys’ fees, and to provide collateral on demand; GAI also allowed plaintiff to decide claims and to enforce obligations against Holland directly.
Plaintiff sued on July 7, 2016 seeking recovery under the GAI; Holland was personally served and answered; Siteworx was never served in its corporate name and plaintiff later reported it could not locate Siteworx for service.
Defendants failed to respond to plaintiff’s discovery requests; requests for admission were deemed admitted. Plaintiff moved for summary judgment against Holland; defendants did not respond to the summary judgment motion despite court orders.
The record includes plaintiff’s affidavit and exhibits showing bonds were issued, plaintiff paid a claim under the bonds, plaintiff demanded payment/collateral, and defendants refused; plaintiff seeks a supplement clarifying the exact amount claimed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Siteworx must be dismissed for failure to serve under Fed. R. Civ. P. 4(m)	Service was attempted via Holland; but plaintiff otherwise sought the action to proceed	Siteworx: no responsive briefing; implicit that service via Holland suffices	Siteworx dismissed without prejudice for failure to effect service in its corporate name
Whether plaintiff is entitled to summary judgment against Holland under the GAI	GAI unambiguously requires indemnity; plaintiff paid bond claims, demanded payment/collateral, and incurred enforcement costs; requests for admission were deemed admitted	Holland failed to respond to the motion or oppose on the merits	Summary judgment granted to plaintiff against Holland; court found plaintiff entitled to judgment as a matter of law
Effect of defendants’ failure to respond to discovery and dispositive motion	Deemed admissions and unopposed motion establish factual and legal basis for judgment	No response or opposition from defendants	Court relied on deemed admissions and defendants’ nonresponse as independent grounds to grant summary judgment

Gottlieb v. Sandia Am. Corp., 452 F.2d 510 (3d Cir. 1971) (rejecting service on an individual as sufficient service on a separate corporate entity)
Kentucky Bonding Co. v. Commonwealth, 199 S.W. 807 (Ky. 1918) (service on an individual in an official capacity does not effect service on the business entity)