Ali v. Mid-Atlantic Settlement Services, Inc.Ali v. Mid-Atlantic Settlement Services, Inc.
MEMORANDUM OPINION AND ORDER
Plaintiff Betty Gene Ali filed a motion for default judgment as to defendant Anthony Noble to which Noble responded by filing a motion to set aside entry of default, arguing that service had never been effected. Ali also filed a motion for sanctions under
BACKGROUND
Ali, an ailing widow, has sued Noble and his step-father, Richard L. Tolbert,
Plaintiffs process servers delivered the summons and complaint multiple times in an effort to serve Noble, a law student attending the University of Pennsylvania at the time, but Noble never answered and asserts that service was never effected. During the 2002-2003 academic year, Noble lived in an apartment at 3131 Walnut Street, Philadelphia, Pennsylvania. In June 2003, Noble’s listing on the University of Pennsylvania internet directory was changed to an address on Cree Drive in Forest Heights, Maryland. For the 2003-2004 academic year, Noble lived at 1624 Spruce Street, Apt. 1R in Philadelphia, the address to which his school directory listing was changed in the fall of 2003. That listing included Noble’s telephone number which Ali’s counsel furnished to process servers at Best Legal Services in Philadelphia.
On November 13, 2002, process server Maurice Liggins left a copy of the summons and complaint with an adult woman who identified herself as Paula Noble, Noble’s mother, at 113 Cree Drive, Forest Heights, Maryland. Liggins’ affidavit dated November 15, 2002 states that Paula Noble “admitted to living there with and is the mother/co-occupant of the defendant.” Noble did not respond to the summons. On May 13, 2003, a process server left a copy of the summons and complaint with Edward Bowman, the concierge at the 3131 Walnut Street apartment house where Noble was then living while in school. Bowman later told Ali’s counsel that Bowman accepted the papers from the process server, called Noble in his apartment, and then “focused on placing the documents ... into the hands of Mr. Noble as soon as possible.” Noble did not respond to the summons. Then, on September 23, 2003, process server Russell DaLonzo, Jr. from Best Legal Services went to the 1624 Spruce Street apartment where Noble was residing at that time. DaLonzo’s October 1, 2003 affidavit of service says “spoke to Mr. Nobles over the phone and he stated put paper in the door and he’ll get it.” Noble still did not respond to the summons.
Ali sought and obtained an entry of default by the clerk, and filed a motion for default judgment. In response to an August 13, 2004 order directing Noble to show cause why Ali’s motion should not be granted, Noble filed a motion to set aside entry of default, arguing that he was never properly
As a motion to vacate the entry of default, the motion is deficient since it is not accompanied by a verified answer as is required by Local Civil Rule 7(g). As a response to the show cause order, the filing fails to address with factual particularity the affidavits by Maurice Liggins on November 15, 2002 and Russell Dalonzo, Jr. on October 1, 2003 showing service of process upon both Noble and his mother. Asserting the legal conclusion that Noble “was not personally served and therefore not placed on legal notice” ... does not suffice to rebut the facts in sworn affidavits supporting entry of default or show good cause why the entry of default should be vacated.
Order, Nov. 24, 2004, at 1-2 (citations omitted). The order directed Noble to file in further response to the August 13, 2004 show cause order, a memorandum and supporting affidavits that answered all factual assertions advanced by plaintiff concerning service of process upon him in Maryland and Pennsylvania.
Noble responded by filing a memorandum along with his affidavit, the Liggins affidavit, the DaLonzo affidavit and the process server workeard describing the delivery of process on May 13, 2003 to Bowman, the apartment concierge, attached as exhibits. Noble’s affidavit consisted of the following statements:
1. I have personal knowledge of the matters set forth in this affidavit.
2. I currently reside at 1624 Spruce Street, Philadelphia, PA 19104 and have lived there for the last year. Prior to my current residence, I resided in Tokyo, Japan (July 2003 — August 2003) and 3131 Walnut Street, Apt. 237 Philadelphia, PA 19104 and [sic] (June 2002 — July 2003).
3. I have never been served with a summons or a complaint in the case — Betty Gene Ali v Mid-Atlantic Services, Inc. et al., Civil Action No. 02cv02271.
4. I, categorically, deny ever having been served by Maurice S. Liggins, Edward Bowman or Russell Dalzone [sic] in the above-referenced case.
(Def.’s Notice of Filing Lengthy Exhibits, Ex. 5.)
Shortly thereafter, Ali filed a motion for sanctions against Noble and his counsel seeking reimbursement for the costs incurred in responding to Noble’s motion to set aside entry of default and in preparing and pursuing the motion for sanctions. She argues that Noble’s representations that he was never served and had no legal notice of this litigation were made in bad faith, and that his motion to set aside default was frivolous. Noble responded to the motion for sanctions one month later only after a show cause order was issued against him for failure to file any timely response.
DISCUSSION
I. SERVICE OF PROCESS
The Federal Rules of Civil Procedure endorse multiple ways to achieve service of a summons and complaint upon a party. Service of process may be effected “by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein[,]”
The service of process is not a game of hide and seek. Where service is repeatedly effected in accordance with the applicable rules of civil procedure and in a manner reasonably calculated to notify the defendant of the institution of an action against him, the defendant cannot claim that the court has no authority to act when he has willfully evaded the service of process.
Electronics Boutique Holdings Corp. v. Zuccarini, No. Civ. A. 00-4055,
Personal service of process under
should not become a game of wiles and tricks and a defendant should not be able to defeat service simply by refusing to accept the papers or instructing others to reject service. Even though a defendant refuses physical acceptance of a summons, service is complete if a defendant is in close proximity to a process server under such circumstances that a reasonable person would be convinced that personal service of the summons is being attempted. Delivery of a summons to the person to be served may be accomplished by leaving it in his general vicinity, such as on the floor inside the residence near such person, informing him that the process server is so doing. A process server may leave the summons outside the door of a structure, informing the defendant he is so doing, where the defendant interposes the door between himself and the process server.
Id. A defendant’s “refusal to open the door does not invalidate plaintiffs service. Personal service need not be face to face or hand to hand.” Villanova v. Solow, No. Civ. A. 97-6684,
Service also may be effected by leaving copies of the papers “at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein[.]”
The validity of the service attempts in Philadelphia also can be determined by Pennsylvania law under
A. Service at US Cree Drive
The affidavit of service filed by Liggins shows that at 8:30 p.m. on November 13, 2002, Liggins left a copy of the summons, complaint and exhibits with Paula Noble, Noble’s mother, at 113 Cree Drive, Forest Heights, Maryland. According to Liggins’ affidavit, Paula Noble confirmed that she resided at 113 Cree Drive, and “admitted to living there with and is the mother/co-occupant of the Defendant.” The information in the affidavit establishes that the service complied with the rule provision permitting service by leaving copies “at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.”
Noble does not deny, either through his affidavit or any other factual support, that 113 Cree Drive was his permanent residence while he was attending law school in Philadelphia. Noble has offered no affidavit controverting the Liggins affidavit in any respect. The uncontroverted facts in the record — Paula Noble’s confirmation on November 13, 2002 that Noble resided at 113 Cree Drive with her, and Noble’s Cree Drive address listing on the University of Pennsylvania internet directory — establish that 113 Cree Drive was Noble’s permanent residence while he was away at school.
B. Service at S1S1 Walnut Street
On May 13, 2003, a process server left a copy of the summons and complaint with Bowman, the concierge of Noble’s apartment building in Philadelphia. Bowman called Noble after accepting the papers and then Bowman “focused on” delivering the papers to Noble as soon as possible. While Bowman did not say he recalled actually delivering the papers to Noble, Noble’s affidavit does not attest that he did not receive the papers from Bowman or from another clerk or manager of the apartment building. Nor does Noble present any evidence disputing that Bowman received the papers.
Pennsylvania allows service by handing a copy of the papers “at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides.”
C. Service at 7&U Spruce Drive
On September 23, 2003, DaLonzo went to Noble’s new Philadelphia residence at 1624 Spruce Street, Apt. 1R. DaLonzo’s uncontradicted factual assertion in his affidavit is that he spoke to Noble over the telephone and delivered the summons and complaint when Noble told DaLonzo to put the papers in the door and he, Noble, would get them. Noble’s claimed lack of recall of a conversation with DaLonzo does not rebut DaLonzo’s assertion, nor does realleging the legal conclusion that DaLonzo did not “serve” him. A naked refutation of a process server’s affidavit is insufficient to rebut the presumption of effective service that a process server’s affidavit establishes. See FROF, Inc. v. Harris,
The facts submitted demonstrate that service was effective under
to the best of the person’s knowledge, information or belief, formed after an inquiry reasonable under the circumstances, ... that the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and] the allegations and other factual contentions have evidentiary support ... [and] the denials of factual contentions are warranted on the evidence ....
Whether an attorney has conducted a reasonable inquiry under
Sanctions for failure to comply with the requirements of
Sanctions may be imposed on an attorney who interposes defenses on behalf of a client that are not warranted by existing law.
Counsel may also be sanctioned for failure to conduct a reasonable inquiry of his client’s factual contentions.
The holes in Noble’s position and the studied ambiguity in his affidavit beg for factual explanations. Counsel was obligated to conduct sufficient inquiry to assure that fact-based legal contentions are well-grounded in fact and warranted by existing law. The evidence shows that Noble has played a cat and mouse game in order to evade the jurisdiction of the court. Counsel’s exact role in Noble’s conduct is not plain from the submissions, but it necessarily amounts at least to a failure to conduct the required reasonable inquiry under the circumstances and a failure to restrict legal contentions to those warranted by existing law.
Ali has incurred unnecessary costs and prejudicial delay from Noble’s insupportable failure to respond as required to the service of the summons and complaint. Accordingly, Ali’s motion for sanctions will be granted in part and Noble’s counsel will be admonished. Noble and his counsel are warned that any further delays attributable in whole or in part to any continued baseless assertion that Noble was not served may result in the imposition of monetary sanctions.
CONCLUSION AND ORDER
Ali effected service on Noble three times— first in November 2002, again in May 2003, and again in September 2003. Noble has failed to answer the complaint. Accordingly, a judgment of default and order for rescission of the sale of the Southeast Washington D.C. property, will be entered unless Noble files an answer in compliance with Local Civil Rule 7(g) on or before January 17, 2006. It is further
ORDERED that plaintiffs motion for sanctions [# 51] be, and hereby is, GRANTED in part and DENIED in part. Noble’s counsel, Stephen J. Williams, is hereby admonished for his role in Noble’s failure to respond as required after Noble was served with the summons and complaint by making factual assertions that were not based on a reasonable inquiry or supported by the evidence, and by making fact-based legal arguments that were not based on a reasonable inquiry into the facts and not warranted by existing law. Plaintiffs motion for sanctions is DENIED in all other respects.
Notes
. Three other defendants have been voluntarily dismissed from the case.
. Noble also had a motor vehicle registered in his name at that address.
. Noble has argued that service is ineffective because DaLonzo has no idea to whom he spoke over the telephone at Noble's residence. Even if DaLonzo spoke to someone other than Noble who answered Noble's residence telephone, service would not necessarily be ineffective. While Federal
. Wholly aside from whether Noble did help swindle an ailing widow out of her home, it is a dangerous and ignominious start to a legal career for Noble to engage in such disingenuous and ultimately ineffective evasion of service. His counsel, as an officer of this Court, should be chary to abet Noble's continuing wily behavior in litigation pending before a Court.