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Premier Bank, Inc. v. Technology Resources, Inc.

United States District Court, Fourth Circuit

November 26, 2013

PREMIER BANK, INC., Plaintiff,
v.
TECHNOLOGY RESOURCES, INC., et al., Defendants.

REPORT AND RECOMMENDATION

IVAN D. DAVIS, Magistrate Judge.

This matter is before the Court on Premier Bank, Inc.'s ("Plaintiffs") Motion for Default Judgment against Technology Resources, Inc. ("TRI"), Roger D. Rutti ("R. Rutti"), and Azita L. Rutti ("A. Rutti") (collectively referred to as "Defendants"), pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. (Dkt. No. 8.) After a licensed attorney for Defendants failed to appear at the hearing on June 14, 2013, the undersigned Magistrate Judge took this matter under advisement to issue this Report and Recommendation. Upon consideration of the Complaint, Plaintiff's Motion for Default Judgment, the supporting affidavits and documentation thereto, and relevant portions of the underlying record, the undersigned Magistrate Judge recommends that Plaintiff's Motion be granted in part and denied in part.

I. INTRODUCTION

On March 13, 2013, Plaintiff filed a Complaint against Defendants seeking recovery based on Defendants' failure to repay a promissory note. (Dkt. No. 1.) Plaintiff has moved for default judgment against Defendants and seeks to recover monies owed including the full principal amount of the loan, accrued and unpaid interest, late charges, and attorneys' fees and costs. (Compl. ¶¶ 18-19; Mot. Def. J. at 3-4; Arsonson Aff. at 2.) After Defendants failed to respond or appear at any proceedings, the undersigned Magistrate Judge took the matter under advisement to issue this Report and Recommendation.

A. Jurisdiction and Venue

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because diversity of citizenship exists between Plaintiff and Defendants and the amount in controversy exceeds $75, 000. Plaintiff is a West Virginia corporation with its principal place of business in West Virginia. (Compl. ¶ 1.) Defendant TRI is a Virginia corporation with its principal place of business in Purcellville, Virginia, which is located within the Eastern District of Virginia. ( Id. ¶ 2.) Defendants R. and A. Rutti are persons domiciled in Virginia. ( Id. ¶ 3.) Further, the amount in controversy is $904, 937.12. (Dkt. No. 1-5.) Thus, because the parties are completely diverse, and the amount in controversy exceeds $75, 000, the Court has valid subject matter jurisdiction over this matter.

This Court may exercise personal jurisdiction over Defendants pursuant to Va. Code § 8.01-328.1(A). Virginia's long-arm statute is a "single act statute" meaning that, in Virginia, only one business transaction is required to confer jurisdiction on its courts. See I.T. Sales, Inc. v. Dry, 278 S.E.2d 789, 790 (Va. 1981); John G. Kolbe, Inc. v. Chromodern Chair Co., 180 S.E.2d 664, 667 (Va. 1971). Defendant TRI, a Virginia corporation with its principal place of business within the Eastern District of Virginia, executed a promissory note ("Note") in favor of Plaintiff's predecessor bank for business purposes. (Compl. ¶ 2, 5.) Defendants R. and A. Rutti also transacted business on behalf of Defendant TRI, within the Eastern District of Virginia. (Mem. Supp. Mot. Def. J. at 1; see Compl. ¶¶ 2-3, 5-11.)

Further, this Court may exercise personal jurisdiction over Defendants pursuant to Federal Rule of Civil Procedure 4(k)(1)(A). Rule 4(k)(1)(A) provides that service of a summons or waiver of service is sufficient to establish personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Further, Virginia courts have personal jurisdiction when the defendant is served with process in Virginia. Blackson v. Blackson, 579 S.E.2d 704, 711 (Va.App. 2003); Ragouzis v. Ragouzis, 391 S.E.2d 607, 608 (Va.App. 1990). On April 12, 2013, Defendant R. Rutti was served by a registered private process server at his home in Upperville, Virginia; he accepted service on behalf of himself, his wife, A. Rutti, and as an individual authorized to accept service on behalf of Defendant TRI. ( See Mem. Supp. Mot. Def. J. at 3; Dkt. Nos. 3-5.)

Similarly, venue is appropriate before this Court pursuant to 28 U.S.C. § 1391 because Defendants R. and A. Rutti, on behalf of Defendant TRI, transacted business within the Eastern District of Virginia. (Compl. ¶ 3.) Defendants R. and A. Rutti live in the Commonwealth of Virginia, and Defendant TRI's principal place of business is located in Purceville, Virginia within the Eastern District of Virginia. (Compl. ¶¶ 2-3.) The undersigned finds that this judicial district is the appropriate venue under 28 U.S.C. § 1391 because business transactions associated with all three Defendants occurred within this district and Defendant TRI's principal place of business is within this judicial district. Accordingly, subject matter jurisdiction, personal jurisdiction, and venue are satisfied in this action.

B. Service of Process

Under 29 U.S.C. § 1132(e)(2), service of process is proper in any district where a defendant resides or may be found. When a plaintiff fails to serve the defendant properly under federal or state law, a court lacks personal jurisdiction over the defendant and may not enter default judgment against him. Omni Capital Int'l, Ltd. v. Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on other grounds, Fed.R.Civ.P. 4(k), (stating that Isiervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served" (quoting Miss. Publ'g Corp. v. Murphee, 326 U.S. 438, 444-45 (1946))); Cent. Operating Co. v. Util. Workers of Am., 491 F.2d 245, 249 (4th Cir. 1974) (reversing the district court's entry of default judgment against a non-resident defendant union because the court lacked personal jurisdiction where the plaintiff failed to effectively serve the union with summons and complaint).

Although § 1132(e) states where a defendant may be served, the Federal Rules of Civil Procedure provide the manner in which service must occur. Under Rule 4(h), service upon a corporation, partnership, or other unincorporated association shall be effectuated "in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process...." Fed.R.Civ.P. 4(h). Additionally, under Rule 4(e)(2), individuals are properly served by delivering to the person a copy of the summons and the complaint or by leaving a copy of the summons and complaint at the individual's usual abode with someone of suitable age and discretion who resides there. Fed.R.Civ.P. 4(e)(2).

On April 12, 2013, a private process server served Defendant R. Rutti with a true and correct copy of the Summons, Complaint, exhibits and documents related thereto. (Dkt. No. 3.) Defendant R. Rutti accepted service on behalf of Defendant TRI, as its registered agent designated to accept service, and on behalf of Defendant A. Rutti, his wife. (Dkt. ...


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