United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
This matter is before the Court on Defendant Ahmad Arfaania's Motion to Set Aside Clerk's Entry of Default and Default Judgment (Doc. 16) for lack of personal jurisdiction. Plaintiff has responded and opposes the motion, claiming Defendant was sufficiently served. As explained more fully below, the Court takes Defendant's motion under advisement and sets this matter for hearing.
The Complaint in this matter was filed on October 16, 2013, alleging a securities fraud claim under § 10(b) of The Securities Act of 1934 and state law fraud and conversion claims against Defendant Ahmad Arfaania Summons was issued the same day, and on December 2, 2013, it was returned executed showing personal service was made upon Ahmad Arfaania on November 24, 2013. The notarized proof of service states that the process server, Sean Bennett, personally served Defendant at an apartment building on Malcolm Avenue #301, Los Angeles, California, 90024. Mr. Bennett executed an affidavit on April 10, 2014, stating that "[p]rior to completing service, I asked the subject to confirm his name as Ahmad Arfaania, and he provided an affirmative answer."
A clerk's entry of default was entered on December 20, 2013, after the answer deadline passed, based on the proof of service that showed Defendant had been personally served. On February 19, 2014, Default Judgment was entered against Ahmad Arfaania, based on the affidavit of Scott Long showing that the claim in this matter was for a sum certain. Plaintiff has subsequently obtained writs of garnishment in an effort to satisfy the judgment in this matter.
Defendant asserts that he did not learn of the clerk's entry of default or default judgment until his E*Trade brokerage account was garnished. He has submitted an affidavit asserting that although he resides at the Malcolm Avenue address in Los Angeles, his unit number is 102 and not 301. He further attests that he was not personally served and that he has never personally traveled to the state of Kansas, nor spoken with Plaintiff either in person or through any type of correspondence.
Under Rule 55(c), the Court may set aside a default judgment under Rule 60(b). Defendant argues that the default judgment in this case is void because he was never properly served and because the Court lacks personal jurisdiction. "A default judgment in a civil case is void if there is no personal jurisdiction over the defendant.'" And if the judgment is void under Rule 60(b)(4), then relief from judgment is mandatory and not discretionary.
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.'" Fed.R.Civ.P. 4(e) governs service of an individual within the United States and allows for service by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and ...