Williams v. Martinez, Civil Action No. 01-1098 (AK)

192 F.Supp.3d 1

Betty WILLIAMS, Plaintiff,

v.Mel MARTINEZ, et al., Defendants.

Civil Action No. 01-1098 (AK)

United States District Court, District of Columbia.

Signed June 14, 2016

John W. Davis, Law Offices of John W. Davis, Johnnie D. Bond, Jr., Bond Law Firm, PLLC, Washington, DC, for Plaintiff.

John Howard Brillian, Anthony Robert Champ, Kass, Mitek & Kass, PLLC, Washington, DC, for Defendants.

MEMORANDUM OPINION

ALAN KAY, UNITED STATES MAGISTRATE JUDGE

Pending before this Court is Defendant Parkside Townhomes Condominium Association, Inc.'s Motion to Set Aside Judgment and Quash Writ of Execution and Memorandum in support thereof (collectively, the "Motion") [34] and Plaintiff Betty William's Opposition to the Motion ("Opposition") [35]. Defendant Parkside Townhomes Condominium Association, Inc. ("Parkside" or "Defendant") moves this Court to "set aside the entry of default filed on June 7, 2002, vacate the default judgment entered ... on November 14, 2003, and quash the writ of execution [from 2015]." (Motion at 1.) For the reasons set forth herein, this Court declines to vacate the default judgment. A separate Order accompanies this Memorandum Opinion.

BACKGROUND

On May 21, 2001, Plaintiff Betty Williams ("Williams" or "Plaintiff") filed a pro se Complaint [1] against Defendant Parkside, alleging that there were "numerous structural problems, including the roof, [and problems with the] exterior insulation and finish, and the appliances" in her unit within the Defendant's condominium association, where such units were constructed with funds from the United States Department of Housing and Urban Development ("HUD"). (Complaint [1] ¶¶2, 9.)¹ Plaintiff asserted that she had tried to get "the structural defects in her house ... corrected" but that no action had been taken. (Complaint [1] ¶15.)² On September 18, 2001, Plaintiff filed a Return of Service/Affidavit, which was allegedly executed on September 15, 2001 upon Kenneth Postell, as an agent of Parkside. (Return of Service [2].)

Because Defendant Parkside never filed an answer or otherwise responded to Plaintiff's Complaint, the Clerk's Office entered a Default [22] against Parkside on June 7, 2002.³ On May 12, 2003, Williams filed a Motion for Default Judgment [24] against Parkside. On August 26, 2003, Plaintiff, through counsel,⁴ participated in an evidentiary hearing regarding her Motion for Default Judgment and the Court ordered that Plaintiff submit a memorandum on the relief sought and supplement her repair estimates within 30 days. See 8/26/03 Docket Entry.⁵ On September 25, 2003, Williams filed an affidavit and attachment in response to the Court's Order. (Notice of Filing [27].)⁶ The Court issued a Memorandum Order [28] on November 14, 2003, granting in part and denying in part Williams' request for a default judgment against Parkside, directing that Plaintiff was entitled to a judgment totaling $65,910.00 and costs of $222.00. (Memorandum Order [28] at 6.)

It was not until almost twelve years later that Plaintiff filed several Writs of Execution and a Writ of Attachment on Judgment.⁷ See docket entries [30], [32], [33] & [36], dated October 19, 2015 through November 9, 2015.⁸ On November 6, 2015, Defendant Parkside filed the instant Motion to Set Aside the Default Judgment and Quash Writ of Execution [34], alleging that Mr. Kenneth Postell was not served with the Summons and Complaint and further, that he was not an Officer/Director of Parkside at the time of such alleged service. See Affidavit of Kenneth Postell [34-1]. This Court held an evidentiary hearing with regard to the instant Motion, commencing on November 23, 2015, continuing on December 14, 2015 and January 12, 2016, and terminating on March 10, 2016. During the evidentiary hearing, the following witnesses with information relevant to this case testified: Kenneth Postell (former member of the Board of Directors of Parkside); Benny Kass, Esq. (registered agent of Parkside); Wanda Taylor (current Secretary of the Board of Directors of Parkside); Benjamin Colbert (Metropolis Management company representative); Brian Kass, Esq. (attorney and custodian of records of the law firm representing Parkside); Victor Booth (former member of the Board of Directors for Parkside); and Betty Williams (Plaintiff). Plaintiff and Defendant both submitted exhibits which were entered into evidence.

LEGAL STANDARD

Parkside moves for relief from the default judgment pursuant to Federal Rules of Civil Procedure 55(c) and 60(b). Fed. R. Civ. P. 55(c) permits the court to set aside a final default judgment under Rule 60(b). Fed. R. Civ. P. 60(b) states that "[o]n motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void...." Fed. R. Civ. P. 60(b)(4). A judgment may be considered void in the event that requirements for effective service have not been satisfied. See Combs v. Nick Garin Trucking , 825 F.2d 437, 441–42, 448 (D.C.Cir.1987) (holding that a default judgment must be vacated under Rule 60(b)(4) upon finding that a defendant was not properly and effectively served with process); MCI Telecommunications Corp. v. Travel Specialist , 1991 WL 197029, *1 (D.D.C. Sept. 17, 1991) (holding that "[i]nvalid service of process invalidates a default judgment").

Generally, "the decision whether a default judgment should be set aside is committed to the sound discretion of the trial court." Jackson v. Beech , 636 F.2d 831, 835 (D.C.Cir.1980). In contrast, " ‘[t]here is no question of discretion on the part of the court when a motion is [brought] under Rule 60(b)(4) ;’ if the judgment is void, relief is mandatory." Combs , 825 F.2d at 441. "[T]the general trend throughout the Circuits ... is toward imposing the burden of proof on the party moving to vacate a default judgment under Rule 60(b)(4)." Ariel Waldman, Allocating the Burden of Proof in Rule 60(b)(4) Motions to Vacate a Default Judgment , 68 U.Chi.L.Rev. 521, 533 (2001). A movant attacking a default judgment under Rule 60(b)(4) bears the burden of demonstrating that the judgment is void. Combs , 825 F.2d at 441–42.

ANALYSIS OF PARKSIDE'S MOTION

Parkside challenges the default judgment on grounds that the judgment was void because: 1) the service of process was defective and 2) Kenneth Postell, the individual allegedly served, was not an officer or director of Parkside at the time of the alleged service and thus, he was not authorized to accept service. (Motion at 4.)

A. Was Service Effective?

The signed and dated Return of Service relating to Kenneth Postell states as follows:

I, Kimberly Trent, hereby certify that I have served a Summons by placing same in the hands of Kenneth Postell[e], who is an agent for Parkside Condo Assn located at the following address: 3727 Grant Pl N.E. (Mr Postelle Read [the] Summons, and Walk[ed] Out [of the] house and Returned to Service wind [d]shield.[) ] The date of service was: 9-15-01[.] The time of service was: 9:20 A.M. I hereby declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Return of Service is true and correct.

(Return of Service [2].)

As a preliminary matter, Parkside notes that the "Return of Service against Parkside does not provide any description of Mr. Postell ... [and it] [f]urther ... indicates that only the Summons was allegedly served upon him and not a copy of the Complaint in violation of [Rule] 4(c)(1) of the Federal Rules of Civil Procedure." (Motion at 4 n.1.) Fed. R. Civ. P. 4(l)(1), governing proof of service, requires only that "proof must be by the server's affidavit." Fed. R. Civ. P. 4(l)(1). The affidavit of service does not require any "substantive description of how the summons and complaint were served," nor does it require a description of the person to be served. See generally Lopes v. JetsetDC, LLC, 994 F.Supp.2d 135, 145 (D.D.C.2014) (holding that "an affidavit's failure to describe the service of process itself" is not grounds for quashing the service of process). Defendant's contention that the Return was defective for failing to describe Mr. Postell is therefore without merit.

Defendant correctly notes that Rule 4(c)(1) requires that a Summons be served with a copy of the Complaint; however, this District Court has previously treated ambiguous returns of service as insufficient to rebut the presumption that service was proper. See Roland v. Branch Banking & Trust Corp. , 149 F.Supp.3d 61, 65, No. 15–0040, 2015 WL 8751050, at *3 (D.D.C. Dec. 14, 2015) ("Despite the lack of clarity in the process server's affidavit, in the absence of any other evidence, the Court finds Defendants have not successfully rebutted the prima facie evidence that service was proper.")⁹ Moreover, this District Court has adopted a "relaxed application of the rules governing service of process to pro se plaintiffs." Id. ; see generally Erwin v. U.S. , No. 05–1698, 2006 WL 2660296, at *6 (D.D.C. Sept. 15, 2006) (providing a general discussion of the relaxed rules). "[E]ven to the extent that service may have been imperfect in this case, the Court affords [plaintiff], as a pro se plaintiff, some leniency in applying the rules for effecting service of process[.]" Roland , 149 F.Supp.3d at 66, 2015 WL 8751050 at *3.

Thus, even though the Plaintiff's Return of Service only stated that a Summons was served, this Court gives the Plaintiff, a pro se party at the time, the benefit of the doubt that both the Summons and a copy of the Complaint were duly served. Once served, the defendant " ‘becomes a party officially, and is required to take action in that capacity’ ... even if the plaintiff fails timely to prove service by filing a server's affidavit or files a defective proof of service." Mann v. Castiel , 681 F.3d 368, 373 (D.C.Cir.2012) ; cf. Barnhardt v. District of Columbia , 560 F.Supp.2d 15, 20 (D.D.C.2008) (holding that process server's failure to check a...