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Corrections officer was not properly served.

Byline: Virginia Lawyers Weekly

Although the corrections officer has notice of the suit in which he was named as a defendant, he established that he was not properly served because the complaint was not left at his "usual place of abode." The court, however, extended the time to serve the defendant, now that his usual place of abode had been established.

Background

In April 2017 Katherine Painter filed suit under 42 U.S.C. 1983 against Blue Ridge Regional Jail Authority, corrections officer Pitts and corrections officer Farrar. Summonses were first issued to all three defendants in May 2017. Service was successful as to BRRJA and Pitts. Those defendants submitted responsive pleadings and were ultimately dismissed. At the time of that dismissal, no return of service had been filed as to Farrar, and he had made no appearance before this court.

On Aug. 1, 2017, Farrar received a letter from the Division of Risk Management notifying him that suit had been filed against him. This letter did not denote the place of, or reason for, the suit, but instructed Farrar that he would be provided with counsel "in the event [he was] served" with the referenced lawsuit.

Plaintiff filed an executed summons on Oct. 25, 2017, detailing service completed on Aug. 28, 2017, by posting "on the front door of [Farrar's] abode" at 90 Weeping Willow Drive, Apt. J, Lynchburg, VA 24501.Plaintiff relied on information provided by a professional process server to determine that the apartment at Weeping Willow Drive was Farrar's residence.

Farrar failed to respond in any way, and on Nov. 8, 2017, upon plaintiff's motion, the clerk of the court filed an entry of default. On Dec. 27, 2017, Plaintiff moved for default judgment, and the court held a hearing on the matter. Notice of the motion for default judgment was mailed to multiple addresses, and was received by Farrar at his address in Forest, Virginia. Farrar did not attend the hearing on plaintiff's motion. Based on the evidence before it at the time, the court found that service was proper under Virginia Code 8.01-296(2)(b). Accordingly, the court entered judgment against Farrar.

Less than one month later, Farrar made his first appearance before this court, requesting that judgment be set aside as void due to lack of personal jurisdiction. At a hearing, Farrar's wife testified that she and Farrar have lived at her parents' home located at 1323 Autumn Run Drive, Forest, Virginia 24551 since 2016. Plaintiff presented evidence showing that she had hired multiple process servers in an effort to identify Farrar's usual place of abode, and that she had attempted service at the Autumn Run Drive address to no avail. Plaintiff also presented evidence that she had sent information regarding the pending default judgment to the same Autumn Run Drive address. Farrar confirmed that he received those communications.

Analysis

Farrar claims that plaintiff's service was invalid because it was posted on the door of 90 Weeping Willow Drive, Apt. J which was not his usual place of abode. In support of this claim, Farrar presents an affidavit, his in-court testimony and his wife's in-court testimony that he has lived at 1323 Autumn Run Road since August 2016. Farrar's affidavit further states that he "promptly notified [his] attorney, the court services pretrial supervisor and the Virginia DMV of [his] change in address." The court finds this evidence credible, concluding that service was not posted at Farrar's usual place of abode, and therefore that plaintiff's service was invalid.

Plaintiff argues that the court should not vacate the judgment because Farrar had "clear notice and actual knowledge of the pending litigation." While Farrar's receipt of the letter from DRM and of the information regarding pending default judgment undoubtedly gave him notice of this suit, notice does not prevent a defendant from asserting a personal jurisdiction defense if the defendant did not appear in court prior to filing their motion to vacate default judgment.

Plaintiff asks that, if default judgment is vacated, she be allowed to serve Farrar now that his usual place of abode has been established. The court finds that good cause exists here and will extend the time for service.

Defendant's motion to vacate granted.

Painter v. Blue Ridge Regional Jail Authority, Case No. 17-cv-00034, Jan. 23, 2019. WDVA at Lynchburg (Moon). VLW 019-3-041. 9 pp.

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Title Annotation:Painter v. Blue Ridge Regional Jail Authority, U.S. District Court for the Western District of Virginia
Publication:Virginia Lawyers Weekly
Date:Feb 15, 2019
Words:732
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