The opinion
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DELVAKIO BROWN, CAMERON )
WALLS, BRIANNA EDWARDS, and )
TYLER GRANT, on behalf of themselves )
and all others similarly situated, ) No. 3:20-cv-01092
)
Plaintiff, ) Judge Aleta A. Trauger
)
v. )
)
PEPPER & PEACH, LLC, JUAN )
EDGERTON, and TAMI LENORE, )
)
Defendants. )
DENIAL OF MOTION FOR ENTRY OF DEFAULT
Pending is Plaintiffs’ Motion for Entry of Default against Defendant Pepper & Peach, LLC
(“Pepper & Peach”) (Doc. No. 20). For the following reasons, Plaintiff’s Motion is DENIED
without prejudice.
I. Procedural History
Plaintiffs filed the Complaint against the Defendants on December 21, 2020. (Doc. No. 1).
Summons was issued the same day as to “Pepper & Peach, LLC, c/o Byron M. Gill, 109 N. Castle
Heights Avenue, Lebanon, TN 37087-2738”. (Doc. No. 4).
On January 14, 2021, Plaintiffs returned the Summons and Proof of Service Declaration
executed by Litigation Coordinator Astin Donovan. (Doc. No. 11 at PageID #58). Donovan’s
Declaration states that Pepper & Peach was served with process via Certified Mail return receipt
requested. Id. Attached to the Declaration is a copy of the USPS Certified Mail receipt dated
January 8, 2021. (Id. at PageID # 59). The name printed in the signature block of the receipt is “Z
Raby,” and the box for “Agent” was selected. Id. Written in the recipient block is the handwritten
Default against Pepper & Peach. (Doc. No. 20).
Legal Standard and Analysis
Pursuant to Local Rule 55.01, motions for entry of default against business entities pursuant
to Fed. R. Civ. P. 55(a) must be accompanied by an unsworn declaration under penalty of perjury
under 28 U.S.C. § 1746 verifying: (i) proof of service and (ii) the opposing party’s failure to plead
or otherwise defend. L.R. 55.01. In support of their Motion, Plaintiffs filed the Declaration of
David W. Garrison. (Doc. No. 21).
“Due process requires proper service of process for a court to have jurisdiction to adjudicate
the rights of the parties, by default or otherwise. Proper service under Rule 4 is therefore a
necessary prerequisite to entry of a default or a default judgment.” Ingram Barge Co., LLC v.
Musgrove, No. 3:17-CV-01526, 2019 WL 1226818, at *3 (M.D. Tenn. Mar. 8, 2019), report and
recommendation adopted, No. 3:17-CV-01526, 2019 WL 1212094 (M.D. Tenn. Mar. 14, 2019)
(internal citations omitted). “The burden is on the plaintiff to exercise due diligence to perfect
service of process after the filing of the complaint and the burden is also on him to establish that
proper service has been made.” Campbell v. United States, 496 F. Supp. 36, 39 (E.D. Tenn. 1980)
(internal citations omitted). See also Jones v. Volkswagen of America, Inc., 82 F.R.D. 334, 335
(E.D. Tenn. 1978). “Unless service is waived, proof of service must be made to the court. Except
for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.”
Fed. R. Civ. P. 4(l)(1). “Failure to prove service does not affect the validity of service.” Fed. R.
Civ. P. 4(l)(3).
In support Plaintiffs’ Motion for Entry of Default, Plaintiffs rely upon the Proof of Service
declaration and executed Certified Mail receipt. (Doc. Nos. 11 and 21). As noted above, however,
the receipt was not signed by its intended recipient Byron M. Gill, Pepper & Peach’s registered
handwritten notation “55.3 C11 CV19.” Id. This type of notation is consistent with the USPS’s
COVID-era modification of its signature requirements for Certified Mail receipts. The USPS
website states,
To reduce health risks, we are temporarily modifying customer signature capture
procedures. While maintaining a safe, appropriate distance, employees will request
the customer’s first initial and last name so that the employee can enter the
information on the electronic screen or hard copy items such as return receipts, and
PS Forms 3811 (Domestic Return Receipt) and 3829 (Registered Dispatch Follow-
Up). For increased safety, employees will politely ask the customer to step back a
safe distance or close the screen door/door so that items may be left in the mail
receptacle or appropriate location by the customer door.
See https://faq.usps.com/s/article/USPS-Coronavirus-Updates-for-Residential-
Customers#mailing_shipping (last accessed December 21, 2021). USPS also prepared a video
outlining the process. See https://www.youtube.com/watch?v=2rn0LXFFMao&feature=youtu.be
(last accessed December 21, 2021).
Federal Rule of Civil Procedure 4(e)(1), allows an individual to be served in a judicial
district of the United States 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). Tennessee Rule of Civil Procedure 4.04(10) expressly allows
service by mail. Tenn. R. Civ. P. 4.04(10). However, for service to be effective, the return receipt
must be signed by the defendant, a person designated by Rule 4.04, or by statute. Id. There is no
evidence that any one of these three scenarios occurred here. As this Court has previously
explained,
Rule 4.03(2) requires any party attempting service by mail to file with the clerk
“‘the original summons . . . ; an affidavit of the person making service setting forth
the person’s compliance with the requirements of [Rule 4.03(2)]; and, the return
receipt . . . .’” Hall v. Haynes, 319 S.W.3d 564, 577 (Tenn. 2010) (quoting Tenn.
R. Civ. P. 4.03(2)). “‘If the return receipt is signed by the defendant, or by a person
designated by Rule 4.04 or by statute, service on the defendant shall be complete.
If not, service by mail may be attempted again or other methods authorized by these
Supreme Court of Tennessee explained that “Rule 4.03’s explicit restriction of
whom [sic] may sign the return receipt” generally requires “‘that the return receipt
be signed by the defendant and no one else.’” Id. (quoting Robert Banks, Jr. & June
F. Entman, Tennessee Civil Procedure § 2–3(v) (2d ed. 2004)). As an example of
that principle, the court discussed Edwards v. Campbell, in which the Tennessee
Court of Appeals held that the plaintiffs failed to effect service of process by mail
under Rule 4.03 even though the wife and mother of the respective defendants had
signed the return receipts. Id. (citing No. E2000-01463-COA-R3-CV, 2001 WL
52776 (Tenn. Ct. App. Jan. 23, 2001)).
Ingram Barge Co., LLC v. Musgrove, No. 3:17-CV-01526, 2019 WL 1226818, at *4 (M.D. Tenn.
Mar. 8, 2019), report and recommendation adopted, No. 3:17-CV-01526, 2019 WL 1212094
(M.D. Tenn. Mar. 14, 2019). In this case, the Pepper & Peach’s registered agent did not sign the
USPS Certified Mail return receipt, instead, it appears that the Postal employee followed the
modified procedure established by the USPS. As a result, service of process as to Pepper & Peach
via Certified Mail is ineffective under Tennessee law.
For the reasons stated herein, Plaintiffs’ Motion for Entry of Default (Doc. No. 20) is
DENIED without prejudice.
s/ Lynda M. Hill
Lynda M. Hill
Clerk of Court