United States District Court, D. South Carolina, Columbia Division
Sadie H. Robinson, Plaintiff,
Wateree Community Actions, Inc, Defendant.
ORDER AND OPINION
17, 2017, Plaintiff filed a Complaint against American United
Life Insurance Company (“AUL”) and Wateree
Community Actions, Inc. (“Wateree”) in the Court
of Common Pleas for the County of Sumter. (ECF No. 1-1 at
3-9.) AUL removed the case to this court on the basis of
federal question subject matter jurisdiction, 28 U.S.C.
§ 1331, as Plaintiff's claims are governed by the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. (ECF No.
1 at 2 ¶¶ 7-8.) This case was also removed on the
basis that this court has subject matter jurisdiction
pursuant to 29 U.S.C. § 1132(e). (Id. at ¶ 10.)
On May 30, 2017, Plaintiff allegedly served Wateree with the
Summons and Complaint by certified mail, but Wateree did not
respond. (ECF No. 9-1 at 1 ¶ 4.) On June 27, 2017,
Plaintiff filed a Request for Entry of Default against
Wateree (ECF No. 6), and the Clerk of Court
(“Clerk”) filed an Entry of Default (ECF No. 8)
on June 28, 2017. Once the Clerk filed the Entry of Default,
Plaintiff filed a Motion for Default Judgment against Wateree
(ECF No. 9) on the same day. Also on June 28, 2017, Wateree
entered a written appearance (ECF No. 10) and filed a
Response to Plaintiff's Motion for Default Judgment (ECF
asserts that “the court does not have jurisdiction to
enter default in this case” because the court's
personal jurisdiction over it has not been established. (ECF
No. 11 at 1.) Wateree asserts that Plaintiff did not serve it
in compliance with S.C. R. Civ. P. 4(d)(8) as no
“return receipt” was requested and delivery was
not restricted to the addressee. (Id. at 2-3.)
Lastly, Wateree asserts that Nubiana, who signed the
“green card” for delivery of the Summons and
Complaint, was not authorized to accept service for Annette
Tucker, Wateree's Executive Director, and to whom service
was addressed. (Id. at 3.)
the court is Plaintiff's Motion for Default Judgment (ECF
No. 9), and for the reasons set forth below, the court
DENIES Plaintiff's Motion.
Civ. P. 4(c) states that “[s]ervice of summons may be
made by the sheriff, his deputy, or by any other person not
less than eighteen (18) years of age, not an attorney in or a
party to the action.” If a corporation is being served
in-person, then pursuant to S.C. R. Civ. P. 4(d)(3),
“service shall be made . . . by delivering a copy of
the summons and 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 and if
the agent is one authorized by statute to receive service and
the statute so requires, by also mailing a copy to the
defendant.” A corporation can also be served by
certified or registered mail, but when service is made, a
return receipt must be requested and delivery must be
restricted to the addressee. S.C. R. Civ. P. 4(d)(8). The
plaintiff is also able to serve a defendant, when service is
by certified mail, unlike in-person service. Id.
“Service is effective upon the date of delivery as
shown on the return receipt.” Id.
“Service pursuant to [ ] paragraph [(d)(8)] shall not
be the basis for the entry of a default or a judgment by
default unless the record contains a return receipt showing
the acceptance by the defendant.” Id.
lawyers served Wateree by certified mail, thus there were two
(2) requirements for service; (1) a return receipt must be
requested, and (2) delivery must be restricted to the
addressee. S.C. R. Civ. P. 4(d)(8). Plaintiff's
Certificate of Service (ECF No. 1-2) includes an undated copy
of the Return Receipt for rendering service, and is signed by
someone named “Nubiana.” The Return Receipt shows
that service was addressed to “Wateree Community
Actions, Inc., ” specifically to Annette Tucker
(“Tucker”), but she did not sign for service of
process. (ECF No. 1-2.) The court also notes that next to
Nubiana's signature, the boxes for “agent” or
“addressee” were not checked, and there is no
evidence presented to confirm that Nubiana had the authority
to receive service of process on behalf of Tucker.
(See ECF No. 11 at 3.)
has the burden to establish that service of process was
correctly made and that the court has personal jurisdiction
over Defendant. See Jensen v. Doe, 358 S.E.2d 148,
148 (S.C. Ct. App. 1987). “[Service of process pursuant
to] S.C. R. Civ. P. 4 serves at least two (2) purposes. It
confers personal jurisdiction on the court and assures the
defendant of reasonable notice of the action.”
Roche v. Young Bros. of Florence, 456 S.E.2d 897,
899 (S.C. 1995).
only evidence of proper service is the undated Return Receipt
that is not signed by Annette Tucker, the addressee.
(See ECF No. 1-2.) Plaintiff does not provide any
evidence that Nubiana had the authority to receive service of
process; thus, Plaintiff has not established that Annette
Tucker or an authorized agent of Wateree received proper
notice or service. See Jensen, 358 S.E.2d at 148.
Moreover, pursuant to S.C. R. Civ. P. 4(d)(8), without a date
on the return receipt, the court is unable to determine the
date of effective service. (See ECF No. 1-2.)
Plaintiffs service of process was not compliant with S.C. R.
Civ. P. 4(d)(8), thus, the court's personal jurisdiction
over Wateree has not been established and the court cannot
enter a judgment for default against it.
reasons stated above, the court DENIES
Plaintiffs Motion for Default Judgment against Wateree (ECF
IS SO ORDERED.