United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
case is before the court upon the motion for entry of default
by third-party plaintiff H.C. Schmieding Produce Co.
(“Schmieding”). The motion is brought pursuant to
FED.R.CIV.P. 55(a) which provides that: “When a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
Schmieding has submitted an affidavit stating that it filed a
third-party complaint on September 30, 2016 which named
Sunterra Produce Traders Inc. (“Sunterra”) as a
defendant. The affidavit further states that Sunterra was
served with a copy of the third-party complaint and summons
in California and that the time for Sunterra to answer or
otherwise move with respect to the complaint expired on
October 24, 2016. Because Sunterra has not answered or
responded to the complaint, Schmieding requests entry of
court does not have jurisdiction over a defendant who has not
been proper served. Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999). FED.R.CIV.P.
4(h)(1) governs the service of process upon a corporation in
the United States. Rule 4(h)(1) permits service of process in
the manner permitted for serving an individual under
FED.R.CIV.P. 4(e)(1) or “by delivering a copy of the
summons and complaint to an officer, a managing or general
agent, or any other agent authorized by appointment or by law
to receive service of process and - - if the agent is one
authorized by statute and the statute so requires - - by also
mailing a copy of each to the defendant.” Rule 4(e)(1)
allows for service by following the state law for serving a
summons in an action brought in courts in the state where the
district court is located or where service is made.
proof of service filed regarding Sunterra (Doc. No. 12) shows
that Schmieding mailed the summons and complaint by certified
mail addressed to “Sunterra Produce Traders” in
California and that the mailing was received and signed for
by an agent identified as “Adrianne
Q.” The federal rules do not permit service by
mail except to the extent permitted in the state where a
district court is located or where process is served. See
Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868
(8thCir.) cert. denied, 531 U.S. 1036
(2000); Dyer v. Wal-Mart Stores, Inc., 318 Fed.Appx.
843, 844 (11th Cir. 2009); Azzawi v. Kellogg
Brown and Root, 2015 WL 6460363 *2 (E.D.Cal.
10/26/2015); Colleton Preparatory Academy, Inc. v. Beazer
East, Inc., 223 F.R.D. 401, 404 (D.S.C. 2004).
state law in California requires that service upon a
corporation be directed to a specific individual. Cal. Code
Civ. Pro. § 416.10; Azzawi, supra;
Hidalgo v. Aurora Loan Services, 2013 WL 4647550 *6
(S.D.Cal. 8/29/2013); Watts v. Enhanced Recovery
Corp., 2010 WL 3448508 *3-4 (N.D.Cal. 9/1/2010). The law
is the same in Kansas. While K.S.A. 60-303 allows for service
of process by return receipt delivery effected by certified
mail, K.S.A. 60-304(e) requires that service on a corporation
be performed by serving an officer, manager, partner or a
resident, managing or general agent and that “[s]ervice
by return receipt delivery on an officer, partner or agent
must be addressed to the person at the person's usual
place of business.” Here, the certified mail was not
addressed to the officer, partner or agent at the
person's usual place of business. Instead, it was
addressed to the corporate defendant. This does not satisfy
Kansas law. Chambers v. Burger King, 2016 WL 2848993
*1 (D.Kan. 5/16/2016); Remmers v. Brotherhood of
Maintenance of Way Employees Division, 2012 WL 2449887
*2 (D.Kan. 6/27/2012); Porter v. Wells Fargo Bank,
257 P.3d 788, 791 (Kan.App. 2011); Taylor ex rel. Gibbens
v. Medicalodges, Inc., 2010 WL 3324408 *3 (Kan.App.
appears that service of process has not been properly
completed, the court should not enter default. See
Maryland State Firemen's Ass'n v. Chaves,
166 F.R.D. 353, 354 (D.Md. 1996); Dahl v. Kanawha Inv.
Holding Co., 161 F.R.D. 673, 685 (N.D.Iowa 1995).
Therefore, for the reasons explained above, the court shall
deny Schmieding's motion for entry of default (Doc. No.
43) without prejudice.
IS SO ORDERED.
 This could be incorrect. The name is
difficult to make out on the receipt. Doc. No. 12, ...