United States District Court, E.D. Missouri, Eastern Division
PAINTERS DISTRICT COUNCIL #58 FRINGE BENEFIT FUNDS, by and through its Board of Trustees, et al., Plaintiffs,
FERREL J. ROBINSON, JR. d/b/a F.J. ROBINSON CONTRACTING, INC., Defendant.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to Set
Aside the Default Judgment for Improper Service of Process
(ECF No. 24). Defendant argues that this Court should set
aside the default judgment because Plaintiffs served Ferrell
J. Robinson, Sr. instead of Ferrell J. Robinson, Jr., who is
the named defendant in this case. Defendant asserts that
because the summons said "Jr."-but meant to name
Ferrell J. Robinson, Sr.-there is no personal jurisdiction
established over Ferrell Robinson, Sr. and the Default
Judgment is void.
response, Plaintiffs do not dispute that they served Ferrell
J. Robinson, Sr. (ECF No. 25). Rather, Plaintiffs argue that
this case should not be set aside because of Plaintiffs'
misnomer. As admitted by Defendant, Plaintiffs intended to
sue Robinson, Sr. and actually served Robinson, Sr., who is
the true "owner" of the former company.
See Affidavit of Ferrell Robinson, Jr., ECF No. 24-1
("It is my understanding that the Plaintiffs meant to
sue my father, and I believe the person mentioned in the
return of service is my father."). Plaintiffs maintain
that Robinson, Sr., the correct Defendant, was served with a
Summons and First Amended Complaint, which he knew was
intended for him as the owner of the company. (ECF No. 25 at
Court agrees that service was not improper and the Judgment
is not void simply because the subpoena contained a misnomer.
Robinson, Sr. knew since October 2016 of Plaintiffs'
claims against him but that Plaintiffs had simply misnamed
his son. "A defendant who is clearly identified by a
summons and complaint and who has been served with those
documents may not avoid the jurisdiction of the district
court merely because he is incorrectly named in them."
Tremps v. Ascot Oils, Inc., 561 F.2d 41, 44 (7th
Cir. 1977) (citing United States v. A. H. Fischer Lumber
Co., 162 F.2d 872 (4th Cir. 1947)). Defendant has not
alleged that Robinson, Sr. did not have notice of the claims
or that he suffered any harm. In re Agriprocessors,
Inc., 465 B.R. 822, 829 (Bankr. N.D. Iowa 2012) (quoting
Nunley v. Dep't of Justice, 425 F.3d 1132, 1139
(8th Cir.2005) ("[A] person cannot complain about the
constitutionality of the method used to provide notice when
he or she has received actual notice (assuming it is timely),
for he or she has suffered no harm."). Rather, the
record indicates that Robinson, Sr. received service of
process and was aware of this litigation. See ECF
No. 25, ¶¶8-12 (Plaintiffs' counsel exchanged
correspondence with "Ferrell Robinson" (no
generational distinction made) who challenged the content and
validity of the audit). Thus, the Court holds that
Plaintiffs' naming "Ferrell Robinson, Jr." in
the Complaint and in the service of process was simply a
misnomer. Both Ferrell Robinsons knew that Ferrell Robinson,
Sr. was the proper defendant and interacted with
Plaintiffs' counsel accordingly. Ferrell Robinson, Sr.
cannot now claim that he did not have an opportunity to
defend this case because of improper service. Ferrell
Robinson, Sr. made a calculated risk not to defend this
action after he had actual notice of this litigation and,
accordingly, the Court finds service on Ferrell Robinson, Sr.
the Court finds no "good cause" under Fed.R.Civ.P.
60(b) to set aside the default judgment. (ECF No. 25 at
9-11). "The court may set aside an entry of default for
good cause, and it may set aside a default judgment under
Rule 60(b)." Fed.R.Civ.P. 55(c); United States v.
2005 Chrysler 300Q VIN2C3AA63HX5H631206, 382 Fed.Appx.
531, 532 (8th Cir. 2010). "When examining whether good
cause exists, the district should weigh whether the conduct
of the defaulting party was blameworthy or culpable, whether
the defaulting party has a meritorious defense, and whether
the other party would be prejudiced if the default were
excused." 2005 Chrysler 300C,
VIN2C3AA63HX5H631206, 382 Fed.Appx. at 532-33 (citing
Stephenson v. El-Batrawi, 524 F.3d 907, 912 (8th
Cir.2008) (quotation omitted)). Defendant has suggested that
the Court should set aside the default judgment because the
"judgment is void" due to improper service. (ECF
No. 24 at 2). Having found that the judgment is not void, the
Court holds that the judgment cannot be set aside under
Fed.R.Civ.P. 60(b)(4). Likewise, the Court also holds that
Defendant has not alleged "mistake, inadvertence,
surprise or excusable neglect" under Fed.R.Civ.P.
60(b)(1); newly discovered evidence under Fed.R.Civ.P.
60(b)(2); fraud under Fed.R.Civ.P. 60(b)(3); or satisfaction,
release, or discharge of the judgment under Fed.R.Civ.P.
60(b)(5). Therefore, the Court holds that Defendant has not
shown good cause to set aside the default judgment.
IT IS HEREBY ORDERED that Defendant's
Motion to Set Aside the Default Judgment for Improper ...