Opinion
No. 1:01-CV-151
September 5, 2003
MEMORANDUM
Before the Court are various motions arising out of a sexual harassment lawsuit filed by Plaintiff Carolyn Kirby ("Plaintiff") against Defendant Memphis Security Company ("Memphis Security"). Specifically, the Court addresses Memphis Security's Motion for Relief from Default Judgment and to Stay Enforcement of Writ of Garnishment (Court File No. 33) and Motion to Strike Plaintiff's Certificate of Service and to Set Aside Default Judgment (Court File No. 37) and Plaintiff's Motion for Ruling on the Pleadings and for an Order Disbursing Funds (Court File No. 39). Plaintiff Carolyn Kirby filed a response to Memphis Security's first motion (Court File No. 38) to which Defendant filed a reply (Court File No. 41). The Court held an evidentiary hearing on the matter on July 9, 2003 (Court File No. 48). At the Court's invitation, the parties submitted post hearing briefs summarizing their respective positions (Court File Nos. 43, 45). For the following reasons, the Court will DENY Defendant Memphis Security's motions and DENY Plaintiff's motion. I. STANDARD OF REVIEW
The Federal Rules of Civil Procedure ("Federal Rules") require a defendant to serve an answer within twenty days of being served with a summons and complaint. Fed.R.Civ.P. 12(a)(1)(A). If a party against whom judgment for relief is sought fails to respond or otherwise defend against such action, the clerk is authorized to enter a default. Fed.R.Civ.P. 55(a). The court may then enter a default judgment against such party. Fed.R.Civ.P. 55(b).
A party against whom default judgment has been entered may petition the Court to set aside such judgment for good cause, and upon a showing of mistake, or any other just reason. See Fed.R.Civ.P. 55(c), 60(b); Weiss v. St. Paul Fire and Marine Ins. Co., 283 F.3d 790, 794 (6th Cir. 2002). Rule 55(c) empowers courts to grant relief from an entry of default "for good cause shown," which is to be determined by considering (1) whether the plaintiff would be prejudiced, (2) whether the defendant has a meritorious claim or defense, and (3) whether the defendant's culpable conduct led to the default. United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983) (quoting Feliciano v. Reliant Tooling Co., Ltd., 691 F.2d 653, 656 (3d Cir. 1982)).
However, where an entry of default has ripened into a default judgment, a stricter standard of review applies. United States v. Real Property All Furnishings Known as Bridwell's Grocery Video, 195 F.3d 819, 820 (6th Cir. 1999). "[O]nce the court has determined damages and a judgment has been entered, the district court's discretion to vacate the judgment is circumscribed by public policy favoring finality of judgments and termination of litigation." Waifersong, Ltd. Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992). Therefore, motions to set aside default judgments must be "in accordance with Rule 60(b)." Fed.R.Civ.P. 55(c). Rule 60(b) allows the Court to grant a party relief from "a final judgment, order, or proceeding" for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b). Generally, Rule 60(b) requires "greater specificity from a moving party before a court will set aside a default judgment." Waifersong, 976 F.2d at 292. Although different standards apply, the same set of factors control both a motion to vacate an entry of default under Rule 55(c) a motion to vacate a default judgment under Rule 60(b). Weiss, 283 F.3d at 794. However, where a party seeks to set aside a default judgment all three of the United Coin Meter factors must be satisfied independently. Acevedo v. Motors, 149 F.3d 1182, 1998 WL 382697, at *2 (6th Cir. 1998) (unpublished table opinion).
The decision to set aside default judgment is left to the district court's sound discretion. Weiss, 283 F.3d at 795. Generally, though, Rule 60(b) should be applied liberally where necessary to "achieve substantial justice." Id. Federal courts favor trials on the merits, thus "any doubt should be resolved in favor of the petition to set aside the judgment so that cases maybe decided on their merits." United Coin Meter, 705 F.2d at 846 (internal quotations and citations omitted) (quoting Rooks v. Am. Brass Co., 263 F.2d 166, 169 (6th Cir. 1959)).
II. RELEVANT FACTS
Plaintiff filed this lawsuit on May 23, 2001, alleging Defendants Memphis Security, Patrick Brooks, and Cedric Chism (collectively "Defendants") were liable for sexual harassment pursuant to both Title VII of the Civil Rights Act of 1964 and the Tennessee Human Rights Act ("THRA") (Court File No. 1, "Complaint"). Soon after learning of the lawsuit, Cedric Chism, the president and CEO of Memphis Security, filed a document entitled "Memorandum" with the Court generally denying the factual allegations in the complaint (Court File No. 2). Attached to this memorandum were a series of documents related to Plaintiff's employment at Memphis Security and the administrative proceedings before the Equal Employment Opportunity Commission ("EEOC") regarding her sexual harassment claim. ( Id.). The memorandum was signed by Chism, Hollie Punches, Vice President of Memphis Security, and Nickita Chism, Secretary of Memphis Security ( Id.). Neither Memphis Security nor any of the other named defendants filed anything further with the Court.
On February 8, 2002, Plaintiff requested the Clerk of Court enter default against the Defendants, asserting none of them had submitted an answer or any other responsive pleading (Court File Nos. 6-8). The Clerk subsequently entered default against all three Defendants (Court File No. 9-11). Plaintiff then moved for default judgment (Court File No. 12-14). The Court denied Plaintiff's motion with regard to Defendants Chism and Brooks because they were individuals and could not be liable for sexual harassment under Title VII or the THRA, but granted the motion for default judgment against Memphis Security and referred the issue of damages to United States Magistrate Judge John Y. Powers (Court File No. 15). Plaintiff later voluntarily dismissed her claims against Brooks and Chism (Court File No. 19). After an evidentiary hearing, Magistrate Judge Powers recommended the Court enter judgment in favor of Plaintiff in the amount of $88,130 (Court File No. 26). The Court subsequently adopted that recommendation and a judgment in Plaintiff's favor was entered (Court File No. 28).
Plaintiff moved for the Court to reconsider its ruling with respect to Brooks and Chism, arguing they could be sued as individuals under the THRA (Court File No. 16). The Court denied Plaintiff's motion, concluding from the allegations in the complaint neither Brooks nor Chism could be held liable under the THRA's narrow exception providing for individual accomplice liability in certain situations (Court File No. 17). See Tenn. Code Ann. § 4-21-301(2); Carr v. United Parcel Serv., 955 S.W.2d 832, 836 (Tenn. 1997), overruled in part by Parker v. Warren County Util. Dist., 2 S.W.3d 170 (Tenn. 1999).
On April 29, 2003, Plaintiff submitted an application for writ of garnishment under 28 U.S.C. § 3205(b), (Court File No. 30), and the Tennessee Department of General Services answered indicating it was holding certain funds owed to Memphis Security (Court File No. 31). On June 9, 2003, Memphis Security filed its Motion for Relief from Default Judgment and to Stay Enforcement of Writ of Garnishment (Court File No. 33) which was then followed on June 16, 2003, with a Motion to Strike Plaintiff's Certificate of Service and to Set Aside Default Judgment (Court File No. 37). Plaintiff countered with a Motion for Ruling on the Pleadings and an Order Disbursing Funds (Court File No. 39).
Memphis Security, through its president and CEO, Cedric Chism ("Chism"), admits it received the initial summons and complaint in this matter via fax from Patrick Brooks ("Brooks"), its supervisory employee in Chattanooga, Tennessee (Court File No. 59, July 9, 2003 Evidentary Hearing Transcript ("Transcript"), pp. 24-25, 41-42). For his part, Brooks admits he was served with these documents on or about September 19, 2001, and promptly faxed them to Chism (Transcript, p. 58). Chism claims Memphis Security was not served with or otherwise notified of the original complaint in any way other than the fax subsequent to service on Brooks (Transcript, pp. 24-25).
Plaintiff contends her attorney, Randy Larramore ("Larramore"), sent copies of the complaint and appropriate waivers of service by certified mail, return receipt requested, to both Chism and the registered agent of the corporation, Nickita Chism, and by hand delivery to Brooks (Larramore 7/9/03, pp. 64-65). After receiving no response, Larramore obtained summons from this Court for each of the initial three defendants and purportedly attempted to effect service of the summons and a copy of the complaint in the same manner as the waivers ( i.e., certified, return receipt mail with hand delivery to Brooks in Chattanooga) (Transcript, p. 66). Additionally, Larramore claims to have engaged a process server in an unsuccessful attempt to hand deliver the summons and complaint to Memphis Security's designated agent for service of process, Nickita Chism, at the company's main office in Memphis, Tennessee ( Id.).
Chism claims he telephoned Larramore's office on September 19, 2001, after receiving the faxed summons and complaint from Brooks and briefly discussed the matter with Larramore (Transcript, p. 26). Chism claims Larramore told him he only needed to respond to the complaint and did not need an attorney at that point in time ( Id. at 26-28). Larramore testified he had no specific recollection of such a conversation and doubts he would have given Chism legal advice in any event (Transcript, pp. 67-68). Chism contends the "Memorandum" filed by Memphis Security on September 20, 2001 (Court File No. 2) was understood by him to be the only response required at that time based on his alleged conversation with Larramore and another alleged conversation with the Court (Transcript, pp. 26-28). Chism claims he sent a copy of the "Memorandum" to both the Court and Larramore (Transcript, p. 25). Larramore does not recall receiving this document or, at least recognizing it as anything other than what had been filed with the EEOC during the administrative proceedings regarding Plaintiff's claims (Transcript, pp. 68-69, 74-75, 83-85).
After requesting Entry of Default as to all three original Defendants on February 8, 2002 (Court File Nos. 6-8), Larramore claims to have served those documents on Brooks by hand delivery and upon Memphis Security via certified mail, return receipt requested (which was returned signed for by a "V. Lewis" or "U. Lewis") and a Federal Express package both directed to Nickita Chism at the Memphis office (Transcript, pp. 69-72). Shortly thereafter, Larramore claims he received a telephone call from Chism in which he indicated he had received the documents requesting Entry of Default and took exception with the claim of failure to respond ( Id. at 72-74). It was at this point, Larramore claims he first became aware Memphis Security had filed anything in response to the complaint ( Id. at 74). Larramore then filed a motion for default judgment on behalf of Plaintiff on April 2, 2002, and claims to have sent those documents by hand delivery to Brooks and by certified mail, return receipt requested, to both Chism and Nickita Chism in Memphis ( Id. at 76). Larramore also claims the certified letter to Nickita Chism was returned marked "Refused" with the notation "Doesn't work here anymore," but the receipt for the certified letter to Chism was returned signed by a "Stephanie Maxwell" on April 5, 2002 ( Id. at 76-77). Larramore further claims all documents relating to the hearing before Magistrate Judge Powers for the purpose of determining damages were served upon Memphis Security via certified mail addressed to Nickita Chism at the Memphis office ( Id. at 79-80). Chism claims to have never received any of these documents, denies having telephoned Larramore at any time during February 2002, and disclaims any knowledge of a "Stephanie Maxwell" or a "V. Lewis" working for Memphis Security (Transcript, pp. 44-45, 98-105, 105). Chism does acknowledge employing a "Ulysses Lewis," but claims it is not possible this individual signed for any documents because he works at a location other than Memphis Security's main office ( Id. at 104-05). Brooks denies ever being served with anything other than the summons and complaint (Transcript, p. 59). III. DISCUSSION
Memphis Security argues the Court should set aside the default judgment because (1) the memorandum filed with the Court by Cedric Chism was sufficient to qualify as an answer or at least an appearance (Court File Nos. 34, p. 3; 41, pp. 1-3; 43; pp. 2-3); (2) Memphis Security was never properly served with notice of either the request for entry of default or the motion for default judgment (Court File Nos. 34, p. 5; 37, p. 4; 41, pp. 4-5; 43, pp. 4-5); (3) Memphis Security's failure to answer was the result of mistake (Court File No. 34, p. 4); (4) invalidating Memphis Security's "answer" on the basis it was not represented by an attorney would constitute "unfair surprise" and a due process violation (Court File Nos. 41, pp. 3-4; 43, pp. 3-4); and (5) prospective operation of the judgment would be inequitable, "fundamentally unfair," and a due process violation (Court File No. 37, p. 5).
A. Memphis Security's "Answer"
Memphis Security argues the entry of default was in error because it submitted an answer to Plaintiff's complaint within the allotted time. The Federal Rules required Memphis Security to answer or plead responsively to Plaintiff s complaint within twenty days unless it requested, and the Court granted, an extension of time to file an answer or responsive pleading. Fed.R.Civ.P. 12(a)(1)(A). Memphis Security contends the memorandum and accompanying EEOC documents collectively met the requirements of an answer under Rule 8(b) and should be construed liberally because Memphis Security was acting pro se. Plaintiff counters by arguing the memorandum constituted neither an answer nor an appearance because corporations cannot appear pro se, but may only appear in federal court through a licensed attorney ( see Court File No. 45, pp. 2-5).
Courts do construe the pleadings of pro se parties liberally. Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law. Hulsey v. State of Texas, 929 F.2d 168, 171 (5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). "It has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel." Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202, 113 S.Ct. 716, 721, 121 L.Ed.2d 656 (1993). Thus, a corporation cannot appear pro se and an answer or any other pleading filed pro se on behalf of a corporation is wholly without effect. See Allied Colloids, Inc. v. Jadair, Inc., 139 F.3d 887, 1998 WL 112719, at *1 (4th Cir. 1998) (unpublished table opinion) (affirming award of default judgment where defendant-corporation's answer was filed by its non-attorney owner and president). While the memorandum might be sufficient to constitute an answer on the part of Cedric Chism individually, it cannot qualify as an answer for the corporate entity known as Memphis Security. Thus, an answer had not been filed when default was entered and the Court will not set aside default judgment on this basis.
B. Lack of Notice
Memphis Security next argues it did not receive notice of the entry of default, default judgment, or any subsequent proceedings in this matter and, therefore, default judgment should be set aside for failure to comply with the notice requirements of Rule 55(b)(2). Where the Court is to enter default judgment against a party who has "appeared in the action," the Federal Rules provide such party "shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application." Fed.R.Civ.P. 55(b)(2). The three-day notice requirement, however, only applies when the party against whom default judgment is sought has made an appearance in the case. Id., As discussed above, a corporation can only appear in federal court through an attorney. Because no licensed attorney made an appearance on its behalf, Memphis Security never made an appearance and was not entitled to notice of the motions or the hearing.
Even if the memorandum or the alleged September 2001 phone conversation are construed as an appearance by Memphis Security, the Court finds Plaintiff took the steps necessary to satisfy the notice requirements of the Federal Rules. Once a party has made an appearance, Fed.R.Civ.P. 5 sets the standard for service of all other papers filed in an action. All subsequent pleadings, orders, and papers must be served on the opposing party unless specifically exempted by another rule. Service is effectuated under this rule when the plaintiff mails a copy to the last known address of the person served. Fed.R.Civ.P. 5(b)(2)(B). For purposes of Rule 5, "[s]ervice by mail is complete on mailing." Id. Because service is complete on mailing, evidence of non-receipt or refusal will not affect the validity of the service. Wright, Miller Kane, 4B Federal Practice and Procedure § 1148, at 449-51 (3d ed. 2002). Plaintiff sent copies of the motion for default judgment by hand delivery to Brooks in Chattanooga and by certified mail, return receipt requested, to both Chism and Memphis Security's registered agent. Once these documents were mailed, the notice requirements of Rule 55(b)(2) were satisfied. Plaintiff apparently also served Memphis Security in a similar manner with the documents relating to the request for entry of default and the damages hearing before Magistrate Judge Powers. Plaintiff has provided proof various of these mails were either refused or signed for by at least one individual Chism conceded is an employee of Memphis Security. Although Chism denies ever having seen any of these mailings, neither he nor Memphis Security has offered any proof they were not dispatched as Plaintiff claims, which is all the Federal Rules require. Thus, the Court cannot set aside default judgment on this basis.
C. Mistake, Unfairness, and Due Process
Memphis Security additionally argues default judgment should be set aside under Rule 60(b) on the basis of mistake, unfair surprise, principles of equity, fundamental fairness, and due process. Because Memphis Security's claims must be brought in accordance with Rule 60(b), the Court interprets these claims as motions to set aside the default judgment under subsections (1), (5), and (6) of Rule 60(b). In addition to determining whether Memphis Security has met the standard for one of the subsections of Rule 60(b), the Court must also find Memphis Security has satisfied each of the United Coin Meter equitable factors. Acevedo, 1998 WL 382697, at *2. Finally, "[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b).
Memphis Security contends its President and CEO, Cedric Chism, made an honest mistake in thinking he had done all that was required of him and the company to respond to Plaintiff's lawsuit (Court File No. 34, p. 4). Rule 60(b)(1) allows the Court to provide relief from judgment on the basis of "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1). However, a motion for relief from judgment under Rule 60(b)(1) must be made within one year of the entry of the judgment. Fed.R.Civ.P. 60(b); Acevedo, 1998 WL 382697, at *2, *4. The Court entered default judgment against Memphis Security on May 21, 2002 (Court File No. 15) and Memphis Security filed its first motion requesting that judgment be set aside on June 9, 2003 (Court File No. 33). Thus, to the extent Memphis Security's motion is brought under Rule 60(b)(1), it is time-barred.
Even if its motion was timely, Memphis Security cannot carry the burden imposed by Rule 60(b)(1). A party seeking to vacate a default judgment under Rule 60(b)(1) "must demonstrate first and foremost that the default did not result from his culpable conduct" before a court can proceed to a consideration of the other factors. Weiss, 283 F.3d at 794. "'To be treated as culpable, the conduct of a defendant must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on judicial proceedings.'" Thompson v. American Home Assurance Co., 95 F.3d 429, 433 (6th Cir. 1998) (quoting INVST Fin. Group, Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 399 (6th Cir. 1987)). Memphis Security admits it had actual notice of Plaintiff's lawsuit and there is evidence it also had actual notice of Plaintiff s request for entry of default. Any mistake or misunderstanding on the part of Chism or Memphis Security, therefore, is more attributable to Memphis Security's willful neglect of the legal proceedings against it than to an honest mistake or otherwise excusable neglect. Compare United States v. Mortgage Lenders Network USA, Inc., 234 F.3d 1270, 2000 WL 1529815, at *2 (6th Cir. 2000) (unpublished table opinion) (holding defendant failed to meet its burden under Rule 60(b)(1) where defendant had actual notice of lawsuit prior to entry of default yet did nothing and waited until eleven months after entry of judgment to move the court to set aside the default judgment), -with Thompson, 95 F.3d at 433-34 (affirming set aside of default judgment where defendant established it never had actual notice of original lawsuit), Acevedo, 1998 WL 382697, at *3 (holding defendant had demonstrated excusable neglect where failure to answer was result of attorney's legal assistant having placed complaint in wrong file), and Trustees of Detroit Carpenters Fringe Benefit Funds v. Manninen, 16 F.3d 1221, 1994 WL 20092, at *3 (6th Cir. 1994) (unpublished table opinion) (finding reliance upon co-defendant's plausible representations he would take care of lawsuit established excusable neglect). Having received actual notice of the pendency of the action, Memphis Security had, at a minimum, some responsibility to check on the status of its lawsuit even if it was not receiving documents filed in the case.
Further, to the extent Memphis Security argues it was unfairly surprised by the inability of a corporation to appear in federal court without an attorney (Court File Nos. 41, pp. 3-4; 43, pp. 3-4), this does not constitute the type of surprise which can support relief under Rule 60(b)(1). The rule conceives of surprise in the sense a party is unfairly surprised by the entry of a default judgment without ever having received notice of the lawsuit or where a party was under the erroneous impression a litigation had been settled or otherwise concluded. That a party was "surprised" by the state of the law or the legal arguments advanced by the opposing party is not sufficient to warrant setting aside a default judgment.
Memphis Security next contends the default judgment should be set aside because "prospective operation of the judgment would be inequitable" (Court File No. 37, p. 5). Courts may set aside final judgments, orders, or proceedings where "it is no longer equitable that the judgment should have prospective application." Fed.R.Civ.P. 60(b)(5). However, Rule 60(b)(5) is intended to apply to injunctions, declaratory judgments, or other equitable orders and not to judgments for money damages. See Olle v. Henry Wright Corp., 9lO F.2d 357, 364-65 (6th Cir. 1990) (holding Rule 60(b)(5) does not apply to a bankruptcy court's order confirming sale of personal property). See also Stokors S.A. v. Morrison, 147 F.3d 759, 762 (8th Cir. 1998) ("Rule 60(b)(5)'s equitable leg cannot be used to relieve a party from a money judgment"). That Memphis Security is bound to pay Plaintiff damages is not enough to give the Court's Order prospective effect for the purposes of Rule 60(b)(5):
Virtually every court order causes at least some reverberations into the future, and has, in that literal sense, some prospective effect; even a money judgment has continuing consequences, most obviously until it is satisfied, and thereafter as well inasmuch as everyone is constrained by his or her net worth. That a court's action has continuing consequences, however, does not necessarily mean that it has prospective application for the purposes of Rule 60(b)(5).Twelve John Does v. Dist. of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988). The standard used in determining whether a judgment has prospective application is "whether it is 'executory' or involves 'the supervision of changing conduct or conditions.'" Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir. 1995) (citing Twelve John Does, 841 F.2d at 1139). To hold a judgment has prospective effect so long as the parties are bound by it would read the word "prospective" out of the rule. Schwartz v. United States, 976 F.2d 213, 218 (4th Cir. 1992). Accordingly, the Court finds Rule 60(b)(5) inapplicable to the facts of this case.
Memphis Security also cites Rule 60(b)(6) in support of its motions, arguing the default judgment is "fundamentally unfair and violative of the 5th Amendment to the United States Constitution's guarantee of due process" (Court File No. 37, p. 5). Rule 60(b)(6) allows courts to provide relief from judgment for "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). Rule 60(b)(6) applies "only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule." Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). See also Olle, 910 F.2d at 365-66. Thus, to the extent Memphis Security attempts to assert the same arguments under subsection (6) it asserted under subsections (1) and (5), those claims are improper. As the only remaining ground for relief asserted by Memphis Security, the Court confines its Rule 60(b)(6) inquiry to Memphis Security's due process argument. Due process requires proper service of process before a court will have jurisdiction to adjudicate the rights of the parties. O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003). Therefore, where service of process has not been properly effected, a court must set aside an entry of default or a default judgment. Id. (affirming set aside of entry of default where plaintiff failed to obtain waiver of service, serve an authorized agent of defendant, or otherwise comply with state rules governing service of process). Memphis Security does not dispute Brooks was served with a copy of the summons and complaint at the company's Chattanooga location and promptly faxed such documents to Chism at Memphis Security's main office. This was all due process required. See Fed.R.Civ.P. 4(h). Accordingly, the Court finds no extraordinary or exceptional circumstances mandating the default judgment be set aside.
IV. CONCLUSION
For the foregoing reasons, the Court will DENY Defendant Memphis Security's motions (Court File Nos. 33, 37). Because this ruling renders Plaintiff's Motion for Ruling on the Pleadings and for an Order Disbursing Funds (Court File No. 39) moot, the Court will also DENY that motion. The Court acknowledges Plaintiff's motions for attorney's fees and sanctions, to which Memphis Security has yet to respond, remain outstanding. Therefore, an Order disbursing the funds currently held by the Clerk will be deferred until the Court disposes of those motions.
An Order shall enter.
ORDER
In accordance with the accompanying memorandum, the Court DENIES Defendant Memphis Security Company's Motion for Relief from Default Judgment and to Stay Enforcement of Writ of Garnishment (Court File No. 33), Defendant Memphis Security Company's Motion to Strike Plaintiff's Certificate of Service and to Set Aside Default Judgment (Court File No. 37), and Plaintiff Carolyn Kirby's Motion for Ruling on the Pleadings and for an Order Disbursing Funds (Court File No. 39).
SO ORDERED.