Jeremy Paul Golson v. Miguel A. Pineda

Case: 16-17485 Date Filed: 07/12/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17485
Non-Argument Calendar
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D.C. Docket No. 3:16-cv-00590-MHT-WC
JEREMY PAUL GOLSON,
d.b.a. Jeremy Paul Golson,
Plaintiff-Appellant,
versus
MIGUEL A. PINEDA,
an individual,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Alabama
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(July 12, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
Case: 16-17485 Date Filed: 07/12/2017 Page: 2 of 4
Jeremy Golson filed a lawsuit against Miguel Pineda and then attempted to
serve him with the summons and complaint. Golson filed with the district court a
certificate indicating that he had sent Pineda through certified mail a request that
Pineda waive service of process. Golson later filed a letter from the United States
Postal Service, which stated that a copy of the summons and complaint, which
Golson had sent to Pineda through certified mail, was delivered but that “[t]here is
no delivery signature on file for this item.” Based on those documents, Golson
filed two motions for default judgment against Pineda. The district court denied
Golson’s motions and later dismissed his complaint without prejudice. He now
appeals the district court’s denial of his motions for default judgment.
We review for an abuse of discretion the district court’s denial of a motion
for default judgment. See Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244
(11th Cir. 2015). Under Federal Rule of Civil Procedure 55(a), when a defendant
“has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the [defendant]’s default.” Fed. R. Civ. P. 55(a).
“In the absence of service of process (or waiver of service by the defendant), a
court ordinarily may not exercise power over a party the complaint names as
defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
350, 119 S. Ct. 1322, 1327 (1999). That means that a court cannot enter a
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judgment, default or otherwise, against a defendant that has not either waived
service of process or been properly served.
Golson failed to properly serve Pineda or show that Pineda had waived
service of process and the district court did not have jurisdiction over Pineda to
grant Golson’s motions for default judgment. A defendant may waive service of
process by returning to the plaintiff a signed waiver of service form. Fed. R. Civ.
P. 4(d). Otherwise, a plaintiff must properly serve the defendant, which he can do
by “following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service
is made.” Fed. R. Civ. P. 4(e)(1). Under the rules of civil procedure for both
Alabama (where the district court is located) and Texas (where Golson attempted
to serve Pineda), service can be made by using certified mail with a return receipt.
Ala. R. Civ. P. 4(i)(2); Tex. R. Civ. P. 106(a)(2).
Although the record shows that Golson mailed Pineda a waiver of service
form, Pineda did not sign and return that form. And while the record shows that
Golson attempted to serve Pineda by certified mail, under Alabama’s and Texas’
rules of civil procedure service was not effective until Golson received a return
receipt bearing Pineda’s signature. Ala. R. Civ. P. 4(i)(2)(C) (“Service by certified
mail shall be deemed complete and the time for answering shall run from the date
of delivery to the named addressee . . . as evidenced by signature on the return
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receipt.”); Tex. R. Civ. P. 107(c) (“When the [complaint] was served by
. . . certified mail as authorized by Rule 106, the return . . . must also contain the
return receipt with the addressee’s signature.”). Because Golson failed to show
that Pineda had been properly served (and, in fact, the letter from the Postal
Service stated that there was no delivery signature for the mailed summons and
complaint), the district court did not abuse its discretion by denying Golson’s
motions for default judgment.1
AFFIRMED.
1
Golson also included in his notice of appeal the district court’s order dismissing his
complaint without prejudice. He failed, however, to adequately brief any argument as to the
dismissal of his complaint and has abandoned that claim. See Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim
when he either makes only passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.”).
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