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FROF, INC. v. HARRIS

August 17, 1988

FROF, INC.
v.
STUART C. HARRIS and ROGER MAGGIO



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE.

 I have before me defendant Roger Maggio's motion to vacate a default judgment and dismiss the plaintiff's complaint. For the following reasons, I will grant the motion in part and deny it in part.

 I. Factual Background

 The present case results from two actions in this court in the early 1980's. Those actions involved security claims by a number of investors against various Cable/Tel Corporations and their officers and directors. Defendants Maggio and Harris in the present case were officers and/or directors of the Cable/Tel Corporations and were parties in the original litigation.

 During the initial litigation, the Philadelphia law firm of Fox, Rothschild, O'Brien and Frankel ("Fox, Rothschild") was retained to provide various legal services to the original defendants. The services of the accounting firm of Asher & Co., Ltd. ("Asher") were also retained in connection with the original litigation. The services of both firms with respect to the original actions amounted to fees in excess of $ 38,000.

 Sometime after the initial litigation, both Fox, Rothschild and Asher assigned their rights to FROF, Inc. ("FROF"). FROF then brought an action against all original Cable/Tel Corporations and Maggio seeking compensation as assignee of Fox, Rothschild's and Asher's rights. This court dismissed that action for lack of prosecution and further denied plaintiff's motion to vacate that order. See FROF, Inc. v. Cable/Tel Corp., No. 85-4062 (E.D. Pa. Jul. 30, 1986); FROF, Inc. v. Cable/Tel Corp., No. 85-4062 (E.D. Pa. Apr. 1, 1987).

 FROF then commenced the present action against defendants Maggio and Harris seeking payment under the assignment from Fox, Rothschild and Asher. After defendant Maggio failed to respond to FROF's complaint, this court entered default judgment in favor of FROF in the amount of $ 43,465.83, plus costs. Defendant Maggio, some nine months later, filed the present motion to vacate the default judgment and dismiss plaintiff's complaint. For the following reasons, I will vacate the default judgment and give the parties leave to submit briefs and appropriate affidavits as to whether this court can exercise personal jurisdiction over defendant Maggio.

 II. Discussion

 Maggio has moved to vacate the default judgment and dismiss the complaint on various grounds. Maggio argues that the default judgment should be vacated because service of process was improper, notice of intent to take a default judgment was never given, and the requirements of Fed.R.Civ.P. 60 have been met. Additionally, Maggio argues that the default judgment should be vacated and the complaint dismissed because a previous disposition of this same claim bars the present action and also because this court lacks personal jurisdiction over the defendant. I will consider these various arguments separately.

 A. Service of Process

 Maggio first argues that the default judgment should be vacated because he was never properly served with process under Fed.R.Civ.P. 4. Maggio claims that neither he nor anyone at his residence was ever personally served as required under Rule 4(d)(1) and that his wife found a torn envelope containing the summons and complaint in their mailbox on May 11, 1987. See Affidavit of Roger H. Maggio, Exhibit H attached to Defendant's Motion to Vacate Default Judgment and Dismiss the Complaint (filed Apr. 25, 1988). This affidavit is in direct conflict with the signed return of service filed under the penalty of perjury by Daniel J. Boyd, a private process server. See Return of Service, Exhibit B attached to Defendant's Motion to Vacate Default Judgment and Dismiss the Complaint. Boyd's return asserts that personal service was effected on defendant Maggio himself on May 12, 1987, at his residence in Tenafly, New Jersey.

 Prior to the 1983 amendments, this court held that a U.S. marshal's return of service was conclusive that proper service had been effected upon a defendant. *fn1" If the return contained a false statement of the facts, the defendant's sole remedy was to sue the marshal for false return. See Woods v. Zellers, 9 F.R.D. 6, 7 (E.D. Pa. 1949). This rule prevented a defendant from possibly avoiding liability on statute of limitations grounds by simply contending that he had been ...


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