SUBARU OF AMERICA, INC. v. CHESHIRE FOREIGN AUTO SERVICE, INC.

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

SUBARU OF AMERICA, INC.,

Plaintiff, No. 1:23-cv-02281 v.

CHESHIRE FOREIGN AUTO SERVICE, ORDER INC. d/b/a SUBARU CONNECTION,

Defendant.

O’HEARN, District Judge. THIS MATTER comes before the Court on Plaintiff Subaru of America Inc.’s (“Plaintiff”) Motion for Default Judgment (ECF No. 8); and WHEREAS, Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a default judgment against a properly served defendant who fails to respond; and WHEREAS, “before the Court can enter default judgment, it must find that process was properly served on the Defendant,” Teamsters Pension Fund of Phila. & Vicinity v. Am. Helper, Inc., 2011 WL 4729023, at *2 (D.N.J. Oct. 5, 2011) (citing Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985)), and “the party asserting the validity of service bears the burden of proof on that issue,” Grand Entm’t Grp., Ltd. v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993); and WHEREAS, Federal Rule of Civil Procedure 4(h) requires that, to serve a business entity, a party must deliver “a copy of the summons and of the complaint to an officer, a 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); and WHEREAS, Plaintiff’s Affidavit of Service identifies that Plaintiff served one Dale Peldquin as a “Managing Agent” for Defendants; and WHEREAS, Plaintiff, who bears the burden of proof on the issue, has not demonstrated that Dale Peldquin 1s in fact “an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process” or that he holds a similar role that satisfies Federal Rule of Civil Procedure 4(h), see Order Den. Pls’ Mot. for Default J. as to Avon Foods, Inc., Trs. of the United Food and Com. Workers Union and Participating Food Indus. Employers Tri-State Health and Welfare Fund v. Avon Foods, Inc., No. 21-cv-17533 (D.N.J. June 30, 2022) (ECF No. 10); and WHEREAS, accordingly, neither the Affidavit of Service filed by Plaintiff, (ECF No. 6), nor the Certificate of Service filed in support of Plaintiff's Motion for Default Judgment, (ECF No. 8-3), contains any facts of record from which the Court can conclude proper service was effectuated pursuant to Federal Rule of Civil Procedure 4(h); and therefore IT IS HEREBY on this day of August, 2023, ORDERED that Plaintiffs Motion for Default Judgment, (ECF No. 8), is DENIED without prejudice; and it is further ORDERED that Plaintiff shall have sixty (60) days to effectuate proper service and/or to refile a Motion for Default Judgment with sufficient facts from which the Court can conclude that the person served is in fact managing agent.

CR -- 3 CHRISTINE P. HEARN □ United States District Judge