United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW UNITED STATES DISTRICT JUDGE
cause comes before the Court on Defendants Daphne Jones and
On Point Group, Inc.'s (“OPG”) Motion to
Vacate Default Judgment. (Doc. No. 50). Plaintiff United
States opposes the motion. (Doc. No. 51). As explained below,
the motion is denied.
filed this lawsuit in order to reduce to judgment Jones'
unpaid federal income tax liabilities for the tax years 2005,
2006, 2007, and 2014. Additionally, Plaintiff sought to
foreclose the federal tax liens that encumber real property
held by OPG, to sell those properties free and clear of the
liens and claims of Defendants in this case, and to disburse
the sales proceeds.
served Jones by substitute service on January 13, 2018. (Doc.
No. 35). Specifically, Plaintiff served Claudine Hall, who
the process server states is a co-resident of Jones and at
least 15 years old.
served OPG by serving its registered agent on January 31,
2018. (Doc. No. 39). Specifically, Plaintiff served Yailis
Hernandez, a receptionist for the registered agent (Mayor
& Mayor, LLC), who the process server states was
designated to accept service for Mayor & Mayor, LLC.
Jones nor OPG responded to the complaint, and the Clerk
entered default against them on February 22, 2018. (Doc. No.
41, 42). Plaintiff mailed the motion for entry of default to
Jones and OPG at the addresses at which they were each
served. (Doc. No. 40).
Plaintiff moved for default judgment against them. Again,
Plaintiff mailed the motion to Jones and OPG at the addresses
at which they were each served. (Doc. No. 46). Default
judgment was entered against them on May 8, 2018. (Doc. No.
Motion to Vacate Default Judgment
18, 2018, Jones and OPG filed the instant motion to vacate
the default judgment, arguing that they were not properly
served. “Generally, where service of process is
insufficient, the court has no power to render judgment and
the judgment is void.” In re Worldwide Web Systems,
Inc., 328 F.3d 1291, 1299 (11th Cir. 2003). Federal Rule
of Civil Procedure 60(b)(4) allows a court to relieve a party
from a judgment when the judgment is void. “The burden
of proof in a Rule 60(b)(4) motion rests with the
defendant.” Id. at 1298-99. Accordingly, the
Court will analyze the service as to each of these
argues that she was not properly served because Claudine Hall
was a 15 year old house guest and was not residing at the
property. However, Jones fails to offer any evidence to
support this contention, such as an affidavit from Jones
points out that the process server attempted to serve Jones
at her residence on eight previous occasions and even left a
note, which was later removed before the process server
returned. (Doc. No. 24-1, p. 3). On the ninth attempt, the
process server was able to serve Jones via substitute service
on Hall as Jones' co-resident.
the evidence before the Court consisting solely of the
process server's Return of Service stating under
penalties of perjury that Hall was Jones' co-resident,
the Court finds that Jones has not met her burden of showing
that she was not properly served. Therefore, the ...