United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING MOTION TO SET ASIDE DEFAULT AND
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion Set Aside Default and
Default Judgment Under Rule 60 filed by Defendant Takeda
Pharmaceuticals U.S.A., Inc. (“Takeda USA”). The
Motion argues that the Entry of Default and Order on Default
Judgment - both entered by the state court prior to removal -
should be vacated pursuant to Rule 60(b) of the Federal Rules
of Civil Procedure and this case should be dismissed because
Takeda USA was never properly served and the Court never had
personal jurisdiction over Takeda USA. Additionally, and
alternatively, Takeda USA maintains that the default should
be set aside pursuant to Rule 55(c) because it has valid
defenses on the merits to Plaintiff Jana Brune's claims.
Because Plaintiff's response did not address Takeda
USA's arguments concerning service and personal
jurisdiction, the Court held the instant Motion in abeyance
and ordered supplemental briefing, which the parties have now
filed this lawsuit in state court on January 12, 2017. After
supposedly completing service of process on March 14, 2017,
Plaintiff sought a Clerk's entry of default when Takeda
USA failed to respond to the complaint. Default was entered
against Takeda USA, and Plaintiff thereafter moved for a
default judgment. The state court held a hearing on the
motion for default judgment on August 17, 2018. A default
judgment in favor of the plaintiff was entered August 21,
2018. On September 5, 2018, Takeda USA filed a motion to set
aside default judgment in state court. Takeda USA then
removed this case to federal district court on September 12,
2018, before the state court ruled on its motion. Subject
matter jurisdiction is premised upon the diversity of the
November 30, 2018, Takeda USA filed the instant Motion to Set
Aside Default and Default Judgment. Takeda USA contends that
the state court's default judgment is void because (1)
Plaintiff never served Takeda with process and (2) both this
Court and the state court lack personal jurisdiction over
Takeda USA. Alternatively, Takeda USA argues that the entry
of default and default judgment should be set aside because
(1) Takeda USA has a meritorious defense to Plaintiff's
claims and (2) Takeda USA did not receive notice of the
impending default judgment. Plaintiff's supplemental
brief does not seriously contest Takeda USA's
representations regarding the absence of proper service of
process. However, Plaintiff's brief contends that Takeda
USA employed Plaintiff as a sales representative in
Mississippi. Takeda USA responds that its subsidiary - Takeda
Pharmaceuticals America, Inc. (“Takeda America”)
- was actually Plaintiff's employer.
state court judgment in a case properly removed to federal
court . . . can be vacated under Federal Rule of Civil
Procedure 60(b).” First Republic Bank Fort Worth v.
Norglass, Inc., 958 F.2d 117, 119 (5th Cir. 1992).
Federal Rule of Civil Procedure 60(b) allows for relief from
a final judgment, order, or proceeding because “the
judgment is void.” Fed.R.Civ.P. 60(b)(4). “Rule
60(b)(4) applies only in the rare instance where a judgment
is premised either on a certain type of jurisdictional error
or on a violation of due process that deprives a party of
notice or the opportunity to be heard.” United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
(2010); see also Brumfield v. Louisiana State Bd. of
Educ., 806 F.3d 289, 298 (5th Cir. 2015) (“An
order ‘is void only if the court that rendered it
lacked jurisdiction of the subject matter, or of the parties,
or it acted in a manner inconsistent with due process of
law.'”); Jackson v. FIE Corp., 302 F.3d
515, 522 (5th Cir. 2002) (“Subsection (4) of this rule
embodies the principle that in federal court, a
‘defendant is always free to ignore the judicial
proceedings, risk a default judgment, and then challenge that
judgment on jurisdictional grounds.'”).
a court lacks jurisdiction over the parties because of
insufficient service of process, the judgment is void and the
district court must set it aside.” Thompson v.
Deutsche Bank Nat'l Trust Co., 775 F.3d 298, 306
(5th Cir. 2014) (quoting Recreational Props., Inc. v. Sw.
Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir. 1986)).
It is undisputed that Plaintiff tried to serve Takeda USA by
delivering summons and a copy of the complaint to CT
Corporation in Flowood, Mississippi. Takeda USA has submitted
the sworn affidavit of Brian Hickman, the Representation
Services Advisor to CT Corporation. Hickman states that CT
Corporation is not the registered agent for service of
process for Takeda USA, so after CT Corporation received
Plaintiff's summons and complaint, CT Corporation mailed
Plaintiff's counsel a letter stating that Takeda USA was
not listed on its records for the State of Mississippi.
Hickman further states CT Corporation is the registered agent
for service of process for Takeda America, but CT Corporation
did not notify Takeda America of this lawsuit at the time
because Takeda America was not listed on the summons or the
complaint. Plaintiff has not submitted any evidence or made
any argument to question the veracity of these sworn
statements. On this record, the Court must conclude that
Plaintiff never properly served Takeda USA. See Fed.
R. Civ. P. 4(h). The Default Judgment must accordingly be
set aside. The Court need not address Takeda USA's
alternative bases for setting aside the default.
Plaintiff has only once attempted service of process, the
Court will grant Plaintiff an additional opportunity to
properly complete service. The information and documentation
provided by Takeda USA in its briefing indicates that Takeda
USA may not to be the party Plaintiff intended to sue. The
Court will accordingly grant Plaintiff leave to amend her
complaint to substitute parties should she wish to do so.
Plaintiff is granted thirty (30) days within which to
complete proper service upon any and all named defendants.
This lawsuit may be dismissed without further notice to
Plaintiff should she fail to do so.
IS THEREFORE ORDERED AND ADJUDGED that the 
Motion Set Aside Default and Default Judgment Under Rule 60
filed by Defendant Takeda Pharmaceuticals U.S.A., Inc. is
GRANTED. The default judgment against Takeda
Pharmaceuticals U.S.A., Inc. is hereby SET
IS FURTHER ORDERED that Plaintiff Jana Brune is
grated a period of thirty (30) days from the date of this
Order's entry within which to file an amended complaint
and/or complete service of process.
ORDERED AND ADJUDGED