Tearria and Clinton Simmons, Individuals, their children, A.B.P., O.S.S., and R.T.S., by and through their mother, and Billy Lee Coram, an individual, pro se v. City of Hurricane, a municipality, Scott Edwards, Mayor of the City of Hurricane, in his individual capacity, Chief Michael Mullins, Chief of Hurricane Police Department, in his individual capacity, Corporal Brett Johnson, Patrolman, W.D. Allen, Patrolman Payton Carr, Sergeant Makenzie White, Detective Jonathan Payne, and Officer John Does 1-10, inclusive, in their individual capacities, and Alyson Denison, a worker for Child Protective Services, in her individual capacity

Summary

The court grants Alyson Denison’s motion to set aside the entry of default and denies the plaintiffs’ motion for partial default judgment. It holds that service of process was improper because the summons was left with a coworker who was not authorized to accept service, and actual notice did not cure the defect. The court directs Denison’s counsel to facilitate proper service of process.

Holdings

1. Leaving Denison's summons with her coworker at her workplace did not satisfy Federal Rule of Civil Procedure 4(e), because the coworker was not shown to be an agent authorized by appointment or law to receive service for Denison.
2. Denison's actual notice of the lawsuit did not cure the failure to comply with the plain requirements governing service of process.
3. Because Denison was not properly served, the entry of default had to be set aside, and Plaintiffs' motion for partial default judgment was denied as moot.
4. Because Denison had not been served, the district court would not grant her leave to file an answer or other responsive pleading; she had no obligation to answer before valid service.

Questions Presented

1. Whether service of process on Alyson Denison was valid when the United States Marshals Service left her summons with a coworker at her workplace.
2. Whether Denison's actual notice of the lawsuit excused the failure to comply with the service requirements.
3. Whether the entry of default had to be set aside because service was defective.
4. Whether Denison should be granted leave to file an answer or other responsive pleading despite the absence of valid service.

Disposition

other