United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PENDING MOTIONS
William T. Lawrence, Judge.
cause is before the Court on two motions: the Plaintiffs
Motion for Entry of Default (Dkt. No. 16) and the Motion of
Overhauser Law Offices, LLC, to Intervene for Limited Purpose
of Establishing Lack of Authorization to Accept Service (Dkt.
No. 18). The motions are ripe for review and the Court, being
duly advised, DENIES both motions for the
reasons set forth below.
an action for trademark infringement brought by the Plaintiff
against three Defendants, two individuals and a corporation,
each of which is alleged to be a resident of China. The
present motions concern the propriety of the Plaintiffs
attempted service upon the Defendants.
Plaintiff filed its initial Complaint against the Defendants
on April 8, 2016, and had the Complaint and summonses served
on all three Defendants by hand delivery to the individual
Defendants, Dennis Lei and William Li, on April 12, 2016,
while they were in Indiana attending a trade show.
Plaintiff filed an Amended Complaint on April 28, 2016. At
that point, no counsel had appeared on behalf of the
Defendants in the case and they had not filed any response to
the Complaint; indeed, the deadline to respond had not
expired. However, counsel for the Plaintiff had communicated
with attorney John Bradshaw from the Overhauser Law Offices
about the case since serving the Defendants; these
communications included a letter from Bradshaw in which he
stated that the firm represented the Defendants in the
lawsuit and stated his intention to file a motion to dismiss.
The lawyers also discussed the possibility of agreeing to an
extension of the Defendants' response deadline. Assuming
based on these discussions that Bradshaw was authorized to
accept service on behalf of the Defendants, the Plaintiff
served the Amended Complaint on the Defendants by mailing it
Defendants did not file a response to the Amended Complaint.
On June 28, 2016, the Plaintiff filed the instant Motion for
Clerk's Entry of Default, asserting that it had effected
service of the Amended Complaint on April 28, 2016, and
therefore the Defendants' response had been due by May
12, 2016, pursuant to Federal Rule of Civil Procedure
6, 2016, before the Court had reviewed the Motion for
Clerk's Entry of Default, attorney Paul B. Overhauser
appeared in this case and filed a Motion to Intervene for
Limited Purpose of Establishing Lack of Authorization to
Accept Service on behalf of Overhauser Law Offices, LLC
(hereinafter referred to as "Overhauser"). The gist
of Overhauser's Motion is that the Plaintiffs Amended
Complaint required service in accordance with Federal Rule of
Civil Procedure 4 and that service upon John Bradshaw was
ineffective for this purpose.
Plaintiff seeks entry of default against the Defendants
because they have failed to file an answer or otherwise
respond to the Amended Complaint. Entry of default is
governed by Federal Rule of Civil Procedure 55(a): "When
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default." It is axiomatic that
entry of default against a party is appropriate only if that
party was adequately served. Accordingly, the issue is
whether service of the Amended Complaint upon the Defendants
through John Bradshaw of the Overhauser Law Offices was
not immediately clear under the applicable rules whether an
amended pleading must always be served pursuant to Rule 4 on
a party that has not yet appeared, or whether Rule 5 service
suffices under some circumstances. The Court need not resolve
this question, however, because the Plaintiffs service via
Bradshaw would not suffice under either rule.
Plaintiffs attempted service upon Defendants through Bradshaw
was ineffective under Rule 5 because Bradshaw had not entered
an appearance in this matter. Generally, after service of a
summons, additional pleadings may be served upon an attorney
in accordance with Federal Rule of Civil Procedure 5(b),
which provides that "[i]f a party is represented by an
attorney, service under this rule must be made on the
attorney unless the court orders service on the party."
However, the provisions of Rule 5 regarding service upon an
attorney apply only after a party has made an appearance in
the proceeding. See Cent. III. Carpenters Health &
Welfare Trust Fund v. Con-Tech Carpentry, LLC, 806 F.3d
935, 937 (7th Cir. 2015) (excusing failure to serve
subsequent motion papers upon counsel because "until
counsel files an appearance . . . adverse parties are
supposed to serve the litigant itself); see also 4B
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1146 (4th ed.)
("The service provisions of Rule 5 apply only to parties
who have appeared."). Accordingly, the Plaintiffs
attempted service of the Amended Complaint upon the
Defendants through Bradshaw was ineffective under Rule 5
because Bradshaw had not filed an appearance in this case.
Plaintiffs attempted service upon the Defendants through John
Bradshaw was also ineffective under Rule 4. Rules 4(f)(1) and
(h)(2) generally require service upon individuals and
business entities outside of the United States in accordance
with "internationally agreed means, " if available.
Unlike Rule 5, Rule 4 does not contain any provision for
service upon the attorney of a party. Accordingly, the
Plaintiffs attempted service of the Amended Complaint through
Bradshaw was ineffective under Rule 4 as well.
the Plaintiffs attempted service of the Amended Complaint on
the Defendants was ineffective, the Plaintiffs Motion for
Entry of Default (Dkt. No. 16) is DENIED. The Plaintiffs may
proceed to serve the ...