First American Bank, N. A. v. United Equity Corp.

89 F.R.D. 81, 1981 U.S. Dist. LEXIS 10529
CourtDistrict Court, District of Columbia
DecidedJanuary 21, 1981
DocketCiv. A. No. 80-574
StatusPublished
Cited by19 cases

This text of 89 F.R.D. 81 (First American Bank, N. A. v. United Equity Corp.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First American Bank, N. A. v. United Equity Corp., 89 F.R.D. 81, 1981 U.S. Dist. LEXIS 10529 (D.D.C. 1981).

Opinion

MEMORANDUM

SIRICA, District Judge.

This action on a promissory note and guaranty is before the Court on a motion by the plaintiff for default judgment, or in the alternative for summary judgment, and motions by the individual and corporate defendants to dismiss the complaint for insufficient service of process and lack of personal jurisdiction. The complaint alleges that the corporate defendant, United Equity Corporation (United), defaulted on a note which was executed, delivered, and partly performed in the District of Columbia and was guaranteed by the individual defendant, E. Granville-Smith (Smith). United is a Delaware corporation with its principal place of business in the State of Florida. Smith, a non-resident of the District of Columbia, is the president of United.

I. Motions to Dismiss

The plaintiff asserts personal jurisdiction over the individual defendant, Smith, pursuant to the local “long arm” statute, D.C. Code § 13-423 (1973). The defendant does not dispute his amenability to service pursuant to the statute, but does challenge the sufficiency of the process' insofar as it relates to the manner in which service was attempted.

Rule 4(e) of the Federal Rules of Civil Procedure permits service upon a party not an inhabitant or found within a state in a manner prescribed by a statute or rule of court in the state in which the district court is held, provided the statute or rule contemplates such extraterritorial service. In that regard, D.C.Code § 13-424 (1973) states that “[w]hen the exercise of personal jurisdiction is authorized by this subchapter, service may be made outside the District of Columbia.”

The plaintiff attempted service of process on Smith by certified mail, return receipt requested, addressed to his last known address in Florida. This manner of service outside the District is authorized by D.C. Code § 13-431 (1973) which provides in pertinent part:

(a) When the law of the District of Columbia authorizes service outside the District of Columbia, the service when reasonably calculated to give actual notice, may be made—
[84]*84(3) by any form of mail addressed to the person to be served and requiring a signed receipt.
(b) ... When service is by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court.

The process addressed to Smith was forwarded by postal authorities to the offices of United, the corporate defendant. It was accepted and signed for by a bookkeeping clerk, purportedly as an authorized agent for Smith.

The Court finds, however, that the clerk was not such an authorized agent. While it is true that the clerk represented herself as such on the receipt, her acceptance of service and her own statements of authority are, in and of themselves, insufficient to establish the required agency relationship. See Schwarz v. Thomas, 222 F.2d 305, 308 (D.C.Cir.1955). The affidavits filed on behalf of the defendant and the record herein convince the Court that this clerk had no authority, express or implied, to act as Smith’s agent. Since neither Smith nor his authorized agent signed the receipt, the Court is not satisfied with the receipt as evidence of personal delivery. Accordingly, it finds the service of process by mail was insufficient.

Despite the insufficiency of this service of process by mail, the Court will not dismiss the complaint as to the individual defendant. Subsequent to the hearing conducted by the Court of the various motions before it, the plaintiff indicated that it had achieved personal service of process upon the defendant Smith.1 Therefore, in the interests of judicial economy, the Court will merely quash the original service of process, and in light of the subsequent personal service of process, the defendant Smith will now be required to timely file responsive pleadings pursuant to Rule 12 of the Federal Rules of Civil Procedure. See 5 Wright and Miller, Federal Practice and Procedure § 1354, at 586 (1969).

With regard to United, the corporate defendant, the plaintiff initially attempted service of process by transmitting copies of the summons and complaint to the District of Columbia Superintendent of Corporations, who forwarded them by certified mail to the defendant’s corporate offices in Florida.

Rules 4(d)(7) and 4(e) of the Federal Rules of Civil Procedure authorize service upon a corporation in a manner prescribed by a statute of the state in which the district court is held. In this regard, D.C.Code § 13-334(b) (1973) provides:

When a foreign corporation transacts business in the District without having a place of business or resident agent therein, service upon any officer or agent or employee of the corporation in the District is effectual as to actions growing out of contracts entered into or to be performed in whole or part, in the District of Columbia ....

In the present instance, no officer or employee of United was served within the District of Columbia. Instead, plaintiff made its service upon the Superintendent of Corporations as agent for the defendant corporation, relying upon D.C.Code § 29-933i(c) (1973) which provides in part:

If any foreign corporation shall transact business in the District without a certificate of authority, it shall, by transacting such business, be deemed to have appointed the Commissioner its agent and representative upon whom any process, notice, or demand may be served.

United challenges the personal jurisdiction of the Court by asserting that service of process was insufficient insofar as United did not transact business in the District of Columbia, and so cannot, pursuant to the statute, be deemed to have appointed the [85]*85Superintendent of Corporations as its agent to receive service of process.

While this objection is nominally premised on a deficiency in the manner of service, United does not assert that the procedures provided by the statute were insufficient to reasonably assure actual notice, International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945), nor does it assert that the Superintendent of Corporations failed to comply with those procedures.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ewing v. Isaac
S.D. California, 2022
Pollard v. District of Columbia
285 F.R.D. 125 (District of Columbia, 2012)
In Re Kjk Const. Co., Inc.
414 B.R. 416 (N.D. Illinois, 2009)
HS Resources Inc v. Wingate
Fifth Circuit, 2003
Dow v. Jones
232 F. Supp. 2d 491 (D. Maryland, 2002)
Marlow v. Mid South Tool Co., Inc.
535 So. 2d 120 (Supreme Court of Alabama, 1988)
Whisman v. Robbins
712 F. Supp. 632 (S.D. Ohio, 1988)
FIRST CHICAGO INTERN. v. United Exchange Co., Ltd.
655 F. Supp. 787 (District of Columbia, 1987)
Benke v. Barbour
450 N.E.2d 556 (Indiana Court of Appeals, 1983)
McDougall v. Donovan
552 F. Supp. 1206 (N.D. Illinois, 1982)
Mileasing Co. v. Allavena (In Re Allavena)
18 B.R. 527 (E.D. Pennsylvania, 1982)
Continental Bank v. Cantwell (In Re Cantwell)
17 B.R. 639 (E.D. Pennsylvania, 1982)
Forester & Jerue, Inc. v. Daniels
409 So. 2d 830 (Supreme Court of Alabama, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
89 F.R.D. 81, 1981 U.S. Dist. LEXIS 10529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-american-bank-n-a-v-united-equity-corp-dcd-1981.