United States District Court, W.D. Virginia, Lynchburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Timothy
Farrar's Motion to Set Aside Default Judgment pursuant to
Fed.R.Civ.P. 60(b)(4). (Dkt. 64). Defendant claims he was not
served with process, and that the judgment entered against
him by this court, (dkt. 61), is therefore void for lack of
personal jurisdiction. (Dkt. 65). After a hearing on this
matter, the Court finds that service was not proper, and will
grant Defendant's motion. However, finding good cause to
do so, the Court will grant Plaintiff an extension of time to
Factual and Procedural Background
April 2017, Plaintiff Katherine Painter
(“Plaintiff”) filed suit under 42 U.S.C. §
1983 against Blue Ridge Regional Jail Authority
(“BRRJA”), Corrections Officer Pitts, and
Corrections Officer Farrar (“Defendant”),
alleging violations of her Eighth Amendment rights. (Dkt. 1).
Summonses were first issued to all three defendants in May
2017. (Dkts. 2, 3, and 4). Service was successful as to BRRJA
and Officer Pitts. (Dkts. 6 and 7). Those defendants
submitted responsive pleadings and were ultimately dismissed.
(Dkt. 35). At the time of that dismissal, no return of
service had been filed as to Defendant, and he had made no
appearance before this Court. In July 2017, Plaintiff filed
her first motion to extend time to serve Defendant, citing a
process server's attempted service at seven locations as
good cause for an extension. (Dkt. 27). Included in this list
of locations was an address in Forest, Virginia.
(Id. at 2). At the hearing on Defendant's motion
to vacate, the Court confirmed that this address was 1323
Autumn Run Dr, Forest, Virginia 24551, the address Defendant
has since identified as his current residence. (Dkt. 75-9).
On August 1, 2017, Defendant received a letter from the
Division of Risk Management (“DRM”) notifying him
that suit had been filed against him. (Dkt. 75-1). This
letter did not denote the place of, or reason for, the suit,
but instructed Defendant that he would be provided with
counsel “in the event [he was] served” with the
referenced lawsuit. (Id. at 1).
August 28, 2017, Plaintiff filed her second motion for an
extension of time to serve Defendant. (Dkt. 33). Magistrate
Judge Ballou granted that motion, noting Plaintiff's
repeated attempts to locate Defendant and the possibility
that Defendant was avoiding service. (Dkt. 36 at 3-4).
Plaintiff was ordered to serve Defendant by October 29, 2017.
(Id.). Plaintiff filed an executed summons on
October 25, 2017, detailing service completed on August 28,
2017 by posting “on the front door of [Defendant's]
abode” at 90 Weeping Willow Drive, Apt. J, Lynchburg,
VA 24501. (Dkt. 39-1). Plaintiff relied on information
provided by a professional process server to determine that
the apartment at Weeping Willow Drive was Defendant's
failed to respond in any way, and on November 8, 2017, upon
Plaintiff's motion, the Clerk of this Court filed an
entry of default. (Dkts. 39 and 40). On December 27, 2017,
Plaintiff moved for default judgment, and the Court held a
hearing on the matter. (Dkts. 57, 61). Notice of the motion
for default judgment was mailed to multiple addresses, and
was received by Defendant at his address in Forest, Virginia.
Defendant did not attend the hearing on Plaintiff's
motion. Based on the evidence before it at the time, the
Court found that service was proper under Va. Code §
8.01-296(2)(b), which provides for substitute service by
posting process on the front of the defendant's abode.
(Dkt. 60). Accordingly, the Court concluded that default
judgment was appropriate and entered judgment against the
Defendant in the amount of $732, 888. (Dkt. 61). Less than
one month later, Defendant made his first appearance before
this Court, requesting that judgment be set aside as void due
to lack of personal jurisdiction. (Dkt. 64).
Court held a hearing on Defendant's motion. (Dkt. 74). At
that hearing, Defendant's wife testified that she and
Defendant have lived at her parents' home located at 1323
Autumn Run Drive, Forest, Virginia 24551 since 2016.
Plaintiff presented evidence showing that she had hired
multiple process servers in an effort to identify
Defendant's usual place of abode, and that she had
attempted service at the Autumn Run Drive address to no
avail. (Dkts. 75-3, 75-8). Plaintiff also presented evidence
that she had sent information regarding the pending default
judgment to the same Autumn Run Drive address. (Dkts. 75-5,
75-6). Defendant confirmed that he received those
a process server reported to Plaintiff that Defendant's
father said Defendant was married and could be residing
outside of the state, possibly in Florida. (Dkt. 75-3).
Defendant testified that his father knew Defendant was
married and that Defendant and his father are in frequent
contact, but that Defendant never changed his residence to
the state of Florida, nor was there any reason his father
would believe he had done so. Defendant stated that, as a
condition of court supervision related to criminal charges,
he updated his address with the court and the Department of
Motor Vehicles within the first month of moving to Autumn Run
Drive. According to Defendant, the process server should have
been able to find his address.
Civ. P. 60(b)(4) states that “the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding. . . [because] the judgment is
void.” “An order is void for purposes of Rule
60(b)(4) only if the court rendering the decision lacked
personal or subject matter jurisdiction or acted in a manner
inconsistent with due process of law.” Wendt v.
Leonard, 431 F.3d 410, 412 (4th Cir. 2005).
“Before a federal court may exercise personal
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied.” Omni Capital
Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S.
97, 104 (1987). For service to be effectuated, a summons must
be served with a copy of the complaint. Fed.R.Civ.P. 4(c)(1).
Service can be made pursuant to state law or in a manner
prescribed by Fed.R.Civ.P. 4(e).
claim that he was not served with process, if true, would
mean that this Court could not exercise personal jurisdiction
over him. See Bank United v. Hamlett, 286 B.R. 839,
843 (W.D.Va.2002) (“As any first-year law student
knows, when service of process is ineffective a court does
not acquire personal jurisdiction over a party, and a default
judgment resulting from such defective service is
void.”). Returns of service like those present on this
record act as prima facie evidence of valid service.
Capital Concepts, Inc. v. CDI Media Group, No.
3:14-cv-00014, 2014 WL 3748249, at *4 (W.D.Va. 2014).
“‘In the federal system, some courts require a
showing of ‘strong and convincing evidence' to
overcome a facially valid return of service generated by a
private process server, while others simply have suggested
that a rebuttable presumption of correctness might
apply.'” Id. (quoting Corcoran v.
Shoney's Colonial, Inc., 39 Fed. R. Serv. 3d 345, 1997 WL
470365, at *2 (W.D.Va. 1997)). “Defendants must
therefore, at the very least, present credible evidence to
rebut the presumption of validity” created by the
return of service entered October 25, 2017. Id.
Here, the Court finds that Defendant meets that burden.
Code § 8.01-296(2)(b) permits substitute personal
service by posting a copy of process on the main entrance of
a person's usual place of abode. The United States
Supreme Court has specifically addressed what constitutes
“the front-door of the party's usual place of
abode” under Virginia law. Earle v. McVeigh,
91 U.S. 503, 508 (1875). In Earle, the Court held
that “the house must be [defendant's] usual place
of abode, so that, when he returns home, the copy of the
process posted on the front-door will operate as notice . . .
[T]he law does not mean the last place of abode . . . [I]t is
only on the door of his then present residence where the
notice may be posted” in compliance with the law.
Id., see also Drewry v. Nottingham, 64 Va. Cir. 269,
269, 2004 WL 2848510, at *2 (Va. Cir. Ct. 2004) and
Dispanet v. Dispanet, 54 Va. Cir. 451, 451, 2001 WL
168257, at *2 (Va. Cir. Ct. 2001) (citing Earle v.
McVeigh). Defendant claims that Plaintiff's service
was invalid because it was posted on the door of 90 Weeping
Willow Drive, Apt. J, which was not his usual place of abode.
(Dkt. 65). In support of this claim, Defendant presents an
affidavit, his in-court testimony, and his wife's
in-court testimony that he has lived at 1323 Autumn Run Road
since August 2016. Defendant's affidavit further states
that he “promptly notified [his] attorney, the court
services pretrial supervisor and the Virginia DMV of [his]
change in address.” (Dkt. 75-9 at 2). The Court finds
this evidence credible, concluding that service was not
posted at Defendant's usual place of abode, and therefore
that Plaintiff's service was invalid.
argues that the Court should not vacate the judgment because
Defendant had “clear notice and actual knowledge of the
pending litigation.” (Dkt. 69 at 11). While
Defendant's receipt of the letter from DRM and of the
information regarding pending default judgment undoubtedly
gave him notice of this suit, notice does not prevent a
defendant from asserting a personal jurisdiction defense if
the defendant did not appear in court prior to filing their
motion to vacate default judgment. See Foster v. Arletty
3 Sarl, 278 F.3d 409, 413 (4th Cir. 2002)
(“[A]ppellees did not appear in the  action prior to
filing their motion to vacate judgment and, as a result, have
not waived their personal jurisdiction defense.”);
see also Ins. Corp. of Ireland, Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 704 (1982) (“[A]
defendant is always free to ignore the judicial proceedings,
risk a default judgment, and then ...