IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SALADWORKS, LLC,

Plaintiff,

v.

MINH DUC TRINH, doing business

as Café & Salad Works,

Defendant.

HONORABLE JEROME B. SIMANDLE

Civil No. 11-1919 (JBS/AMD)

MEMORANDUM OPINION

SIMANDLE, District Judge:

This matter is before the Court upon the motion of Plaintiff

Saladworks, LLC (“Plaintiff”) for default judgment against Minh

Duc Trinh (“Defendant”) doing business as Cafe & Salad Work. 

[Docket Item 9.] THE COURT FINDS AS FOLLOWS:

1. Plaintiff filed this action on April 5, 2011, alleging

trademark infringement, trademark dilution and unfair competition

arising under the Trademark Act of 1946, as amended (the “Lanham

Act”), 15 U.S.C § 1051. On April 6, 2011 service was effectuated

with respect to Defendant at his sole proprietorship business

upon Phue Caut, who Plaintiff identifies as the “manager who was

in charge.” (Chernow Aff. ¶ 4, May 6, 2011). 

2. The 21 days under Fed. R. Civ. P. 12(a)(1)(A) for

Defendant to serve an answer or other responsive pleading expired

on April 27, 2011. On May 6, 2011, Plaintiff requested entry of

default. [Docket Item 8.] On May 12, 2011, Saladworks filed the

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instant motion for default judgment, seeking a permanent

injunction.

3. 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) (“A default judgment entered when there has been no proper

service of the complaint is, a fortiori, void, and should be set

aside.”) 

4. As a Constitutional requirement, service of process must

be reasonably calculated to “apprise interested parties” of the

pendency of the action. Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950) (finding that service by

publication provided insufficient notice with respect to known

present beneficiaries whose residence was known). Thus, default

judgment is not granted when notice is not sufficient to inform

the defendant of the suit. 

5. Under the Federal Rules of Civil Procedure a person may

be served in a judicial district court of the United States by

“following state law for serving a summons . . . in the state

where the district court is located.” Fed. R. Civ. Pro 4(e)(1). 

The New Jersey state court rules provide that summons may be

served upon an individual proprietor “provided the action arises

out of a business in which the individual is engaged within this

State . . . by delivering a copy of the summons and complaint to

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the individual if competent, or . . . to a managing or general

agent employed by the individual in such business.” N.J. Ct. R.

4:4-4(a)(4). 

6. Only if service “cannot be made in that manner,” then it

can be made “by delivering a copy of the summons and complaint to

any employee or agent of the individual within this State acting

in the discharge of his or her duties in connection with the

business.” N.J. Ct. R. 4:4-4(a)(4). In any case where plaintiff

seeks to substitute service because the preferred method is

impossible, plaintiff must “identify all previous steps taken to

locate the elusive defendant” to demonstrate that the plaintiff

has made a “good faith effort” to comply with the requirements of

service of process. Dendrite Intern., Inc. v. Doe No. 3, 775

A.2d 756, 767 (N.J. Super. Ct. App. Div. 2001) (listing factors

required to serve an anonymous online defendant with substituted

service). 

7. The New Jersey Supreme Court has held that, under N.J.

Ct. R. 4:4-4(a)(4), service is adequate upon a person

sufficiently integrated with the business if the person knows

what to do with the summons. See O’Connor v. Abraham Altus &

Harrison Park, Inc., 67 N.J. 106, 125-128 (1975) (finding that

summons served to a receptionist that was “sufficiently

integrated” with the management organization and knew “what to do

with the papers” was sufficient); see also Staton v. Theta

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Holding Co., L.P. 2009 WL 4251095, at * 4. (N.J. Super. App. Div.

Nov. 25, 2009) (finding that service upon the only known

operating manager of a sole proprietor, unlike a corporation, is

sufficient). Thus, actions of the employee while being served

may make it “reasonable . . . to assume [the employee] had

authority to receive service.” O’Connor, 67 N.J. at 128. 

8. Applying these considerations to the instant case, the

Court will deny Plaintiff Saladworks’ motion for default judgment

without prejudice because Plaintiff has not proven to the Court

that Defendant was properly served with notice. First, the

Defendant is an individual proprietor, but was not personally

served with summons. Rather, an employee described only as the

“manager who was in charge” was served. There is no indication

that the person served was sufficiently integrated with the

organization so as to know to forward the summons to the

proprietor. Thus, without knowing the actual status and

responsibilities of the individual Plaintiff describes as

“manager,” notice was not reasonably calculated to alert

Defendant to the action. Additionally, while N.J. Ct. R. 4:4-

4(a)(4) permits service upon a managing or general agent of the

sole proprietorship, there is no indication in the record before

the Court that Phue Caut, the “manager in charge” fits that

description. While the Court knows of no precise definition of

the term “managing or general agent” as used in N.J. Ct. R. 4:4-

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4(a)(4), the term “managing agent” is usually defined by federal

courts as having a more precise meaning than simply that the

employee had the title of “manager.” See Philadelphia Indem.

Ins. Co. v. Fed. Ins. Co., 215 F.R.D. 492, 494 (E.D. Pa. 2003)

(finding that “managing agent” of a corporation is generally

understood as an individual “invested by the corporation with

general powers to exercise his judgment and discretion in dealing

with corporate matters”).

9. Second, serving any employee under the rule is only

adequate if the plaintiff has demonstrated that the individual

proprietor or managing agent cannot be served. Saladworks does

not contend or provide any evidence that Defendant or the

proprietor’s managing agent was sought and unable to be located.

10. 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. It is well settled that

granting a default judgment is left primarily to the “discretion

of the court.” Tozer v. Charles A. Krause Milling Co., 189 F.2d

242, 244 (3d Cir. 1951). Indeed, there is preference that cases

be disposed of on the merits whenever practicable. Hritz v. Woma

Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (finding that the trial

court must consider: 1) whether the plaintiff will be prejudiced

without default; 2) whether the defendant has a meritorious

defense; and 3) whether the default was the result of the

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defendant's culpable misconduct). 

11. Of course if, after properly serving Defendant,

Plaintiff still receives no answer within the time allowed under

the federal rules, Plaintiff is free to again seek default

judgment. However, before the Court will consider such a motion,

it must be satisfied that service was proper. Therefore, the

Court holds that the motion for default judgment is denied. 

12. Likewise, Plaintiff’s motion for preliminary injunction

[Docket Item 6] cannot be considered absent proof of lawful

service of the summons and complaint upon Defendant. 

Accordingly, the motion for preliminary injunction will be

dismissed as premature without prejudice to renewing and

reinstating the motion upon Plaintiff’s request after Plaintiff

has shown proper service or process upon Defendant. 

13. The accompanying Order will be entered. 

July 6, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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