United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE
cause came before the Court on Plaintiff's Motion for
Default Judgment . Having reviewed Plaintiff's
submissions and the relevant legal authorities, and otherwise
being fully advised in the premises, the Court finds the
Motion will be denied without prejudice.
filed this action against Southern Neurologic & Spinal
Institute (“SNSI”), a professional association,
alleging breach of a lease agreement and setting forth the
amount of liquidated damages that are due Plaintiff.  at
¶¶ 18-24. The underlying facts of the dispute are
not relevant in determining the propriety of default
judgment, but the procedural aspects are. Plaintiff initiated
the lawsuit on May 24, 2019 . Plaintiff states in the
current motion that SNSI was “personally served”
on June 3, 2019.  at ¶ 2. A Proof of Service was
executed by a Terry Keith, private process server, and filed
on June 6, 2019 . Without any answer or other response
from Defendant, Plaintiff moved for an entry of default on
July 11, 2019. [5, 6]. Plaintiff now seeks a final default
judgment based upon the Proof of Service , the Declaration
of Sigrid Mendel Usen [7-1], and an aging detail of the rent
Applicable Legal Standards
to Rule 55 of the Federal Rules of Civil Procedure, a default
judgment may be entered against a party who has failed to
plead or otherwise defend, so long as that party has been
properly served with process. The law is clear, that is, that
unless there has been valid service of process, a default
judgment may not be entered.” Arceneaux v.
Davidson, 325 F.Supp.2d 742, 744 (S.D.Miss. 2004)
(citing Jackson v. FIE Corp., 302 F.3d 515, 528 (5th
Cir.2002); Leedo Cabinetry v. James Sales &
Distribution, Inc., 157 F.3d 410, 412 (5th Cir.1998));
see also Thompson v. Johnson, 348 Fed.Appx. 919, 923
(5th Cir. 2009) (noting that until a defendant is properly
served, a plaintiff cannot obtain a default judgment and
citing Rogers v. Hartford Life & Acc. Ins. Co.,
167 F.3d 933, 937 (5th Cir. 1999; Broadcast Music, Inc.
v. M.T.S. Enter., Inc., 811 F.2d 278, 282 (5th
Cir.1987)). “The party on whose behalf service is made
has the burden of establishing its validity.”
Colony Ins. Co. v. Ropers of Hattiesburg, LLC, No.
2:11CV3KS-MTP, 2011 WL 1226095, at *2 (S.D.Miss. Mar. 29,
2011) (quoting 4B Wright and Miller, Federal Practice and
Procedure § 1353).
Rule of Civil Procedure 4 provides, “Unless service is
waived proof of service must be made to the court. Except for
service by a United States marshal or deputy marshal, proof
must be by the server's affidavit.” Fed.R.Civ.P.
4(l)(1). Plaintiff complied with Rule 4 by filing
the Proof of Service executed by the private process server.
However, upon review of the Proof of Service, the Court
cannot determine whether SNSI was indeed properly served.
summons was issued to:
SOUTHERN NEUROLOGIC & SPINAL INSTITUTE, PA c/o David C.
Lee, Registered Agent 1 Lincoln Parkway, Suite 300
Hattiesburg, MS 39402
contends that Defendant was “personally served”
on June 3, 2019.  at ¶ 2. However, the Defendant is a
professional association, that is a Mississippi corporation.
 at ¶ 4. One could assume that process was served on
David C. Lee, as registered agent, but in the Proof of
Service, the process served never specifically says that is
who he served and from the information given, it is certainly
not clear. First, even though this was service on a
corporation/organization, interestingly the process server
checked off the line item for individual service, which
reads: “I personally served the summons on the
individual at (place) 3688 VETERANS MEMORIAL DR,
HATTIESBURG, MS 39401 on (date) Mon, Jun 03
2019.”This was not service on an individual.
There is a more appropriate box for corporate service, which
was not chosen, that reads: “I served the summons on
(name of individual)__, who is designated by law to
accept service of process on behalf of (name of
organization) __on (date) __.” Had the
corporate service box been checked and filled out, the Court
would know exactly who was served and whether service was
proper. However, as it stands, the Court does not. With the
individual service box checked it is unclear whether the
person who accepted service was indeed designated by law to
while there is information listed at the bottom of the Proof
of Service, it is also not helpful in providing clarity as to
whether there was proper service. The notes state:
Additional information regarding attempted service, etc.:
Successful Attempt: Jun 3, 2019, 9:14 am CDT at Southern Bone
and Joint: 3688 VETERANS MEMORIAL DR, HATTIESBURG, MS 39401
received by SOUTHERN NEUROLOGIC & SPINAL INSTITUTE, PA
c/o Dr. David C. Lee, Registered Agent. Age:48; Ethnicity:
Caucasion; Gender: Male; Weight:180; ...