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American Compensation Insurance Co. v. Ruiz

United States District Court, N.D. Mississippi, Aberdeen Division

June 17, 2019

AMERICAN COMPENSATION INSURANCE COMPANY PLAINTIFF
v.
HECTOR RUIZ d/b/a Los Primoz Construction, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         Before the Court is Raul Aparacio's “Motion to Set Aside Default.” Doc. #12.

         I

         Procedural History

         On 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.”[1] Doc. #12. American Compensation did not respond to the motion.

         II Discussion

         As 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 Tupelo, Mississippi.
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).

         Federal 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, [2] the Court concludes that the entry of default should be set aside.[3]

         III

         Conclusion

         Aparacio's motion [12] is GRANTED. The Clerk's entry of default against ...


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