IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TEAMSTERS PENSION FUND OF

PHILADELPHIA AND VICINITY &

TEAMSTERS HEALTH & WELFARE

FUND OF PHILADELPHIA AND

VICINITY,

 Plaintiffs,

v.

AMERICAN HELPER, INC.,

 Defendant.

HON. JEROME B. SIMANDLE

Civil No. 11-624 (JBS/JS)

MEMORANDUM OPINION

SIMANDLE, District Judge:

 This matter is before the Court on Plaintiffs' motion for

default judgment. [Docket Item 6.] The Court finds as follows: 

1. Plaintiffs filed this Complaint against American Helper,

Inc., and served process upon an individual named Dominic Marano. 

[Docket Items 1 & 4.] American Helper, Inc. did not respond to

the Complaint, and default was entered. [Docket Item 5.] 

Plaintiffs then moved for default judgment. [Docket Item 6.]

2. Before the Court can enter default judgment, it must

find that process was properly served on the Defendant. Gold

Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir.

1985). Fed. R. Civ. P. 55(b)(2) authorizes the entry of a

default judgment against a party that has defaulted. However,

default judgment is not a right. Granting a default judgment is

left primarily to the "discretion of the court." Tozer v.

Case 1:11-cv-00624-JBS-JS Document 9 Filed 07/14/11 Page 1 of 3 PageID: 39
Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951). 

Entry of a default judgment is an inappropriate use of judicial

discretion where there has been insufficient proof of service. 

See First American Bank, N.A. v. United Equity Corp., 89 F.R.D.

81, 86 (D.D.C. 1981).

3. On May 16, 2011, the Court wrote to Plaintiffs to inform

them that default judgment could not be granted because "[t]he

affidavit proving service indicates only that an individual was

served, but neither that affidavit nor any further certification

discusses the individual's relationship to Defendant." [Docket

Item 7.] The Court provided Plaintiffs with an opportunity to

prove that service was proper by supplemental affidavit under

Rule 4(l)(3) of the Federal Rules of Civil Procedure.

4. Plaintiffs' response to this Court's letter order was to

provide the Court with the following: a letter from the process

server stating that the individual served was "authorized to

accept service," without explanation of the basis for that

belief; an amended affidavit of the server stating the same; and

notes from a phone conversation in which it appears Marano was

previously contacted regarding this matter. [Docket Item 8.]

5. Because Plaintiffs' supplemental filing fails to

indicate the basis for believing that Mr. Marano was authorized

to accept service of process on behalf of American Helper, Inc.,

the Court will deny the motion. Among other ways, a corporation

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may be served in the United States "by delivering a copy of the

summons and of the complaint to . . . any other agent authorized

by appointment or by law to receive service of process." Rule

4(h)(1)(B). However, the acceptance of service by an individual

and the conclusory statement of agency is insufficient to prove

proper service. See United States v. Marple Community Record,

Inc., 335 F. Supp. 95, 101-02 (E.D. Pa. 1971) (finding process

server's affidavit that an individual accepted process on behalf

of another was insufficient to prove proper service); Mandale v.

Des Moines Tria Tower, LLC, Civil Action No. 08-04888, 2009 WL

2412596, at *2-4 (E.D. Pa. 2009). Instead, a party "must present

facts and circumstances showing the proper relationship between

the defendant and its alleged agent." United States v. Ziegler

Bolt and Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997). 

6. Plaintiffs evidently have some reason for believing that

Marano is authorized to accept service on behalf of American

Helper, Inc., but have failed to explain this reason. Default

judgment will be denied without prejudice to filing a new motion

for default judgment accompanied by sufficient proof of service. 

The accompanying Order will be entered.

July 14, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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