United States District Court, N.D. Mississippi, Aberdeen Division
M. BROWN UNITED STATES DISTRICT JUDGE.
the Court is Raul Aparacio's “Motion to Set Aside
Default.” Doc. #12.
November 21, 2018, American Compensation Insurance Company
filed a “Complaint for Declaratory Judgment”
against Hector Ruiz, doing business as Los Primoz
Construction; Raul Aparacio; and JESCO, Inc. Doc. #1. On
December 20, 2018, American Compensation filed an executed
summons, representing that Aparacio was served on December
14, 2018, by leaving the summons at his “residence or
usual place of abode ….” Doc. #6 at 2. On
January 7, 2019, the Clerk of the Court issued a notice of
Aparacio's past due answer. Doc. #8. On January 9, 2019,
American Compensation moved for entry of default against
Aparacio for a failure to plead or otherwise defend, and the
Clerk of the Court entered a default the next day. Docs. #9,
#10. The same day the Clerk entered default, Aparacio filed a
“Motion to Set Aside Default.” Doc. #12.
American Compensation did not respond to the motion.
grounds to set aside the default, the motion represents that
Aparacio's “counsel was advised of the filing of
this Complaint on January 8, 2019, by George Dent, Esq.,
attorney for Defendant Raul Aparacio's employer,
Defendant Hector, ” and:
According to the Proof of Service, Defendant Raul Aparacio
was served at 200 Shiloh Mantachie Road, Mantachie,
Mississippi. Upon information and belief, this is the
residence of his employer, Hector Ruiz, but is not Defendant
Raul Aparacio's residence. Rather, his address and usual
place of abode at the time of this tragic accident was at an
apartment on, or just off of, Elvis Presley Boulevard in
The only time that Defendant Raul Aparacio stayed at 200
Shiloh Mantachie Road, Mantachie, Mississippi was for an
approximate two week period of time that he has not been in a
medical facility either in Mississippi, Alabama, or Georgia
since this accident. Defendant Raul Aparacio has not been
present at his usual place of abode since the accident in
question. Therefore, 200 Shiloh Mantachie Road, Mantachie,
Mississippi is simply not his usual place of abode and does
not qualify as his “then present residence” as
defined by Earle v. McVeigh, 91 U.S. 503, 508 (1875)
and F.R.C.P. 4(e).
Doc. #12 at 2 (paragraph numbers omitted).
Rule of Civil Procedure 4(e)(2)(B) provides that an
individual may be served by “leaving a copy of [the
summons and complaint] at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there.” Here, because the motion
is not opposed and because the representations in the motion
have not been disputed by American Compensation,
Court concludes that the entry of default should be set
motion  is GRANTED. The Clerk's
entry of default against ...