Team #1528
IN THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF STETSON
Civil Action No. 14-cv-1311-EKN-EJB
OVER-ARMOR, INC.,
Plaintiff,
v.
COALITION AGAINST FOOTBALL CORRUPTION, INC.,
and NELLIE KICKWOOD
Defendants.
Defendant Nellie Kickwood’s Memorandum of Law in Support of
Defendant’s Motion to Vacate Judgment
/s/1528
State Bar No. 1234567
Peters & Peters, LLP
5533 Redwood Drive
Huntsville, ST 23457
(765)-987-4321
team1528@sspa.com
Attorneys for Defendant
1
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
QUESTION PRESENTED .......................................................................................1
STATEMENT OF JURISDICTION .........................................................................1
STATEMENT OF THE FACTS ...............................................................................1
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT ............................................................................................................5
I. This Court should grant the Defendant’s Motion to Vacate Judgment because
the Plaintiff did not meet the plain language requirements under Federal or State
law in its attempts to serve process on Nellie Kickwood. .....................................5
A. The process server did not meet the requirements under Federal Rules of
Civil Procedure in attempting to serve Mr. Kickwood......................................7
i. The process server failed to exhaust the methods of locating a personal
address for Mr. Kickwood. ............................................................................7
ii. The Process Server did not properly petition the court to serve the
Defendant by publication. ...........................................................................10
iii. The process server’s attempt to serve Nellie Kickwood by publication
did not follow the plain language of Stetson procedural law. .....................11
B. Even if an alternative means of service was necessary, service through
Facebook does not comport with due process. ................................................13
i. Facebook®, a social media platform, does not qualify as an alternative
vehicle for service by publication or direct mail if not first approved by a
Court. ...........................................................................................................13
II. Even if service was proper, Magistrate Judge Benjamin’s Judgment is void
pursuant to Federal Rules of Civil Procedure 60(b)(4) for lack of consent. .......15
A. The plain language of 28 U.S.C. § 636(c) requires consent in order to
obtain jurisdiction and Mr. Kickwood never supplied the requisite consent. .15
B. The judgment is void pursuant to FRCP 60(b)(4) and must be vacated. ..18
CONCLUSION .......................................................................................................19
i
TABLE OF AUTHORITIES
Cases
Allen v. Meyer, 755 F.3d 866, 868 (9th Cir. 2014).................................................. 16
Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398 (7th Cir. 1986) ......................... 19
Brown v. Thaler, 880 A.2d 1113 (2005) ................................................................... 6
Cooper v. Commonwealth Title of Ariz., 489 P.2d 1262 (1971) ............................... 7
Fortunato v. Chase Bank USA, N.A., No. 11 Civ. 6608 (JFK),
2012 WL 2086950, (S.D.N.Y. June 7, 2012) .......................................................... 14
Gaeth v. Deacon, 2009 ME 9, ¶ 23, 964 A.2d 621 ................................
6, 7, 8, 11
Hall v. Sharpe, 812 F.2d 644 (11th Cir. 1987) ........................................................ 16
Henry v. Tri-Services, Inc., 33 F.3d 931 (8th Cir. 1994) .................................. 16, 17
In re Outboard Marine Corp., 369 B.R. 353 (2007) ............................................... 19
Joe Hand Promotions, Inc. v. Shepard, No. 4:12CV1728 SNLJ,
2013 WL 4058745 (E.D. Mo. Aug. 12, 2013) .......................................................... 8
MATSCO v. Brighton Family Dental, P.C., 597 F. Supp. 2d 158
(D. Me. 2009) ........................................................................................................ 7, 8
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ......................... 6
Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987) ......................... 6
Philip Morris USA Inc. v. Veles Ltd.,
No. 06 Civ. 2988, 2007 WL 725412 (S.D.N.Y. Mar. 12, 2007) ............................. 14
ii
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,
507 U.S. 380 (1993) ................................................................................................ 19
Reynaga v. Cammisa, 971 F.2d 414, 416 (9th Cir. 1992) ....................................... 16
Roell v. Withrow, 538 U.S. 580 (2003) ................................................................... 17
Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 240 F.2d 814
(5th Cir. 1957) ........................................................................................................... 6
Schroeder v. Kochanowski, 311 F. Supp. 2d 1241 (D. Kan. 2004)......................... 13
Thomas v. Whitworth, 136 F.3d 756, 758 (11th Cir. 1998)..................................... 16
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) ................. 18
United States v. Indoor Cultivation Equip. From High Tech Indoor Garden Supply,
55 F.3d 1311 (7th Cir., 1995) .................................................................................. 19
Yeldon v. Fisher, 710 F.3d 452 (2nd Cir. 2013) ...................................................... 16
Constitutional Law
Article III, § 1 ............................................................................................................ 5
U.S. CONST. amend. XIV........................................................................................... 6
Statutes
28 U.S.C. § 636 ...............................................................................................passim
28 U.S.C. § 2072. ..................................................................................................... 6
Stetson Stat. § 120.11 ......................................................................................... 4, 10
Stetson Stat. § 120.21 ................................................................................................ 8
iii
Stetson Stat. § 120.80 ....................................................................................... 12, 13
Rules
Fed. R. Civ. P. 4 ........................................................................................................ 6
Fed. R. Civ. P. 4 (e). ............................................................................................ 9, 19
Fed. R. Civ. P. 4(k) .................................................................................................... 7
Fed. R. Civ. P. 4(m) ................................................................................................. 10
Fed. R. Civ. P. Rule 60(b)(4) ............................................................................ 18, 19
iv
QUESTION PRESENTED
I.
Whether posting the text of service documents on a defendant’s social
media page or sending the service documents by direct message to the
party’s user profile on that social media site qualifies as proper service of
process under Federal or Stetson law.
II.
Assuming service of process was proper, whether failure to consent to
this matter being tried before a Magistrate Judge renders the final
judgment void pursuant to FRCP Rule 60(b)(4).
STATEMENT OF JURISDICTION
The United States District Court for the Middle District of Stetson had
original subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1332
because the parties in this suit have diverse citizenship and the dollar amount in
controversy exceeds $75,000.00. Venue is appropriate in this Court pursuant to 28
U.S.C. §1391(b)(2) as a substantial amount of the events giving rise to this action
occurred in this judicial district.
STATEMENT OF THE FACTS
This case arises out of an alleged defamation suit filed by plaintiff, OverArmour, Inc. (“O-A”), against defendants Coalition Against Football Corruption,
Inc. (“CAFC”) and Nellie Kickwood (“Mr. Kickwood”). Plaintiff is in the business
1
of manufacturing sports apparel for organized sports teams, particularly, soccer
teams. Defendant CAFC is a not-for-profit corporation whose goal is to “rid
professional football from all forms of corruption.” (Compl. ¶ 15). Defendant, Mr.
Kickwood is a seasoned investigator who offers his services as an independent
contractor for organizations in need of investigative journalism. (Compl. ¶ 18).
In early 2014, the Federation Internationale de Football Association
(“FIFA”) announced that it would be accepting bids for manufacturers to provide
jerseys and other athletic wear for international soccer events. (Compl. ¶ 12-13). In
response to FIFA’s announcement, CAFC began to prepare a report to reveal the
rampant corruption in the bidding process. To assist with the report, CAFC hired
Mr. Kickwood, a well-known reporter who has worked with several major news
organizations. (Compl. ¶ 18). On September 1, 2014, upon completion of the
report, CAFC posted the report to its Facebook® page. The report revealed that
plaintiff had “engaged in a sustained corrupt course of dealings with FIFA officials
in order to fix the bidding process…” and that officials from Over-Armour
engaged in bribery in order to obtain a winning bid from FIFA. (Compl. ¶ ¶ 26-27).
Following the posting of the report, several people “commented” on Over
Armour’s Facebook® page stating that they would no longer wear Over-Armour’s
products. (Compl. ¶ 28). Plaintiff tried to mitigate the effects of the report by
posting a “comment” of CAFC’s Facebook® wall on September 4, 2014, claiming
2
that the report was false. (Compl. ¶ 31). One day later, on September 5, 2014, an
account appearing to be maintained by Mr. Kickwood responded to plaintiff’s
comment. (Id.).
Plaintiff filed its complaint on October 6, 2014, claiming that the report was
prepared “negligently” and contained several untrue allegations. (Compl. ¶ 32).
According to plaintiff, as a result of this report, it experienced a significant decline
in business and that FIFA barred them from bidding on FIFA contracts. (Compl. ¶
36). However, plaintiff never properly served defendant Mr. Kickwood.1 In fact,
the service processor, Peyton Brady (“Brady”), failed to conduct a diligent search
to locate Mr. Kickwood and instead, chose to “serve” defendant by posting the
summons and complaint onto CAFC’s Facebook® page. (See Return of Service).
Brady attempted to contact the owner of the account appearing to be maintained by
Mr. Kickwood, by using the e-mail address associated with the account. Brady sent
an e-mail to the address kickwood2@kmail.com and received a response
containing the following signature block: Nellie Kickwood, 1234 N. Paring St.,
Beakman Town, Stetson 23434. (Id.). Brady went to that location on five separate
occasions where he learned that Mr. Kickwood did not reside there. Additionally,
Brady, chose to send a direct Facebook® message to a profile that appeared to
maintained by Mr. Kickwood. No other efforts were made to locate Mr. Kickwood.
1
CAFC waived service in this case. See Waiver of Service of Summons.
3
The case was transferred to a Magistrate Judge and no notice was given to
Mr. Kickwood. A default judgment was entered when he did not appear on June
14, 2015. Mr. Kickwood now moves to vacate that judgment on two grounds: (1)
that he was never properly served pursuant to Federal Rule of Civil Procedure 4
and thus was not a party to the judgment and (2) that the judgment is void pursuant
to Rule 60(b)(4) because he did not consent to have the matter tried before a
Magistrate Judge.
SUMMARY OF THE ARGUMENT
The Plaintiff did not meet the plain language of the Federal Rules of Civil
Procedure under Fed. R. Civ. P. 4(e) or Stetson statutes § 120.11 and § 120.80 in
its attempt to serve Mr. Kickwood with notice of the claims filed against him. The
manner in which service of process is conducted must comport with the law and
must be reasonably calculated to afford the defendant in a civil case enough time to
reply. The process server’s attempts to personally serve Mr. Kickwood did not
meet certain minimum efforts that are required and he failed to properly petition
the court for an alternative means of service. Even if the court had approved the
electronic service, Facebook® is not a proper publication under Stetson law.
Because service was never rendered, the Court lacked personal jurisdiction over
Mr. Kickwood.
4
Furthermore, even if service was proper, a non-Article III magistrate judge
cannot issue a final default judgment without consent of all parties as explicitly
stated in 28 U.S.C. § 636. The waiver of the important right to an Article III judge
must be clear and unambiguous. The facts here show that Mr. Kickwood did not
provide voluntary consent in the underlying proceeding. Mr. Kickwood never
received notice of referral to a magistrate judge nor did he ever even enter an
appearance. Therefore, he never had the opportunity to provide voluntary consent.
Because Magistrate Judge Benjamin’s judgment violates both 28 U.S.C. § 636 and
Article III, § 1 of the United States Constitution, it is statutorily and
constitutionally void. This court should find that plaintiff failed to properly serve
Mr. Kickwood under both Federal and Stetson state law, and that the default
judgment is void pursuant to FRCP 60(b)(4) because Mr. Kickwood never
consented to having this matter heard by a magistrate judge.
ARGUMENT
I. This Court should grant the Defendant’s Motion to Vacate Judgment
because the Plaintiff did not meet the plain language requirements under
Federal or State law in its attempts to serve process on Nellie Kickwood.
The Supreme Court is the authority on judicial procedure. It was granted by
the legislature the “power to prescribe general rules of practice and procedure and
rules of evidence for cases in the United States district courts (including
proceedings before a magistrate judge thereof) and courts of appeals.” 28 U.S.C. §
5
2072. Rule 4 of the Federal Rules of Civil Procedure requires a plaintiff to deliver
a service of summons and a copy of the complaint to the defendant in a civil case
by way of: (1) personal service; (2) leaving a copy at the defendant’s residence
with a person of proper age; (3) delivering a copy to an appropriate agent; or (4) in
any other manner that follows state law for serving a summons. FED. R. CIV. P. 4
(e). The origins of this Rule are rooted in the due process clause of the Fourteenth
Amendment to the United States Constitution, which provides
No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
U.S. CONST. amend. XIV, § 1 (emphasis added). Failure to deliver service of
process in accordance with federal and state rules of civil procedure would deny a
defendant of a constitutional right to due process of the law. Gaeth v. Deacon,
2009 ME 9, ¶ 23, 964 A.2d 621; Brown v. Thaler, 880 A.2d 1113, 1116 (2005);
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). If a
plaintiff is unable to serve a defendant with notice in diversity action, a District
Court is without personal jurisdiction over such defendant and any judgment
entered against the non-party should be considered void. See Omni Capital Int'l,
Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); Royal Lace Paper Works, Inc.
v. Pest-Guard Products, Inc., 240 F.2d 814, 816 (5th Cir. 1957); see also FED. R.
6
CIV. P. 4(k)(1) (“Serving a summons …establishes personal jurisdiction over a
defendant who is subject to the jurisdiction of a court of general jurisdiction in the
state where the district court is located”). The District Court did not have
jurisdiction over Kickwood because the Plaintiff was unable to serve Mr.
Kickwood in a method prescribed by Federal or State law. In accordance, this
Court should grant Mr. Kickwood’s Motion to Vacate Judgment entered into by
the Magistrate Judge Benjamin.
A. The process server did not meet the requirements under Federal Rules
of Civil Procedure in attempting to serve Mr. Kickwood.
i.
The process server failed to exhaust the methods of locating
a personal address for Mr. Kickwood.
Pursuant to the rules of procedure, a plaintiff is responsible for locating the
residence and contact information of a defendant so that service can be rendered.
Courts have found “certain minimum efforts” must be made to locate the residence
of defendant to render service personally or leave a copy with someone of an
appropriate age. Cooper v. Commonwealth Title of Ariz., 489 P.2d 1262, 1266
(1971) (requiring that “certain minimum efforts” to locate the defendants must be
made and offering suggestions such as “checking telephone listings, county voting
lists, county assessor’s records, utility companies, or a city directory”). To prove
the efforts of personal service have been exhausted, a plaintiff must demonstrate a
reasonably calculated effort. See, e.g. Gaeth at 627; see also, e.g., MATSCO v.
7
Brighton Family Dental, P.C., 597 F. Supp. 2d 158, 161 (D. Me. 2009)
(recognizing the list of attempted efforts to locate the residence of the defendant
was more than in other cases but still left out a number of contact methods that
should have been included); Joe Hand Promotions, Inc. v. Shepard, No.
4:12CV1728 SNLJ, 2013 WL 4058745, at *2 (E.D. Mo. Aug. 12, 2013)
(recognizing that there were many other search engines to obtain a plaintiff’s
address and attempting to serve the defendant at one address was not exhaustive).
In Gaeth, the plaintiff in a civil suit appealed an order denying his motion
for relief from a default judgment entered against him claiming improper service of
process by way of publication. Gaeth at 627. The plaintiff argued and the Court
agreed because the service used was not “reasonably calculated” to put him on
notice of the lawsuit, he was not afforded due process. Id. The Court in Gaeth
noted the United States Constitution requires “as a basic element of due process,
any defendant against whom suit is commenced is entitled to notice reasonably
calculated to give actual notice, and a reasonable opportunity to respond to the
action”. See e.g., Gaeth at 627; see also MATSCO at 161.
Stetson law requires a plaintiff to show that “diligent search and inquiry
have been made to discover the name and residence of such person” before any
alternative method of service may be requested. Stetson Stat. § 120.21. In the
Return of Service, Peyton Brady described his negligible efforts to properly serve
8
Kickwood with notice. Brady claimed that he conducted a “diligent search and
inquiry to discover the name and residence of Nellie Kickwood” but only lists
Facebook® as his source for this information. He sent only one (1) e-mail to an
address he found connected with an account he suspected was linked to Mr.
Kickwood on Facebook and he received a response with a home address.
Brady further explains in the Return of Service that he visited this address on
five (5) separate occasions over a two-week period of time. (Return of Service
Doc. ¶ 2). From these visits he learned from a person claiming to be Mr.
Kickwood’s minor child that Nellie Kickwood did not in fact reside at that address.
Brady does not state in the Return of Service that a copy of the summons was ever
left with the minor child. Once Brady discovered that Kickwood did not live at the
address, he made no further attempt to locate an address or telephone number for
the Defendant. The service documents were never sent to the e-mail address that
replied with the home address. There was no reference to any county phonebook or
contact with CAFC to obtain an alternative address or contact information for the
Kickwood. Mr. Kickwood was never personally served with notice pursuant to
FRCP 4(e)(2) because the minimum efforts required to obtain contact information
were not met in this case. Under these circumstances, federal law requires the
Plaintiff look to an alternative method of service under state law. FED. R. CIV. P.
4(e)(1).
9
ii.
The Process Server did not properly petition the court to
serve the Defendant by publication.
If the court finds personal service was not made in the time allotted by
FRCP 4, it has the ability, upon written motion or on its own accord, to dismiss the
action without prejudice to the Defendant or order that alternative service be made
within a specified period of time. Fed. R. Civ. P. 4(m)(emphasis added). In many
instances when personal service is difficult to make, a process server will petition
the court to publish the notice of action in a regularly published newspaper in the
county or district in which the proceedings are to take place.
The plaintiff in this case relies on Stetson statutes that permit service of
process by publication or posting. However, the plaintiff failed to meet the
prerequisites required to serve process under these methods by publication under §
120.11. Stetson Stat. § 120.11 states, “As a condition precedent to service by
publication, a statement shall be filed in action executed by the plaintiff, the
plaintiff’s agent or attorney, setting forth substantially the matters hereafter
required, which statement may be contained in a verified pleading, or in an
affidavit or other sworn statement.” Stetson Stat. § 120.11(1).
Over-Armour failed to follow procedural law in this case because it did not
properly petition the court for approval to serve Kickwood with summons by
publication before such publication was made. The complaint in this case was filed
on October 6, 2014. The process server filed the Return of Service on November
10
15, 2014, which would have been forty-one (41) days after any attempt could have
even been made. There is no record of any action made to petition the Court for
alternate service on Mr. Kickwood during that 41 days and a court cannot
retroactively approve the service to be rendered in such a way.
iii.
The process server’s attempt to serve Nellie Kickwood by
publication did not follow the plain language of Stetson
procedural law.
The Court in Gaeth looked to the legislative history behind service of
process and found “the purpose of the rule regarding service is to achieve due
process by giving sufficient notice of civil actions.” Gaeth at 628. This element of
due process is present in all federal and state statutes pertaining to service of
process to assure individuals their constitutional rights are protected. The Stetson
statutes were drafted with that very same fundamental purpose, to ensure the
defendant is put on notice and given sufficient time to respond to the claims
brought against him. Although courts have found alternative electronic methods of
service to be proper, these cases almost always involve service of process to an
individual in a foreign country under FRCP 4(f) or cases in which e-mail service
has been properly ordered by the Court before it is made. Compare Rio Prop., Inc.
v. Rio Int'l Interlink, 284 F.3d 1007, 1018 (9th Cir. 2002) (confirming the
constitutional acceptable practice of service by e-mail when the court has issued an
order approving of such services and when it hasn’t); MacLean-Fogg Co. v.
11
Ningbo Fastlink Equip. Co., No. 08 CV 2593, 2008 WL 5100414, at *3 (N.D. Ill.
Dec. 1, 2008) (finding that although service of process by e-mail was not improper,
a Court cannot “retroactively approve a means of service”).
Despite the lack of an affidavit or court approval in the record, see supra, the
Plaintiff attempted to serve Mr. Kickwood by publishing the text of service
documents to a co-defendant’s Facebook page. Stetson Stat. § 120.80 law requires
the notice of complaint be published each week, for four consecutive weeks, in a
newspaper regularly published in the county where the proceedings are to take
place. Stetson Stat. §120.80. Proof of this publication must show the dates in which
publication was made and a copy of the notice provided in such a publication.
Stetson Stat. §120.80.
Brady’s post of the text of the service of process on a co-defendant’s
Facebook page does not meet the requirements of proper publication under Stetson
law. Facebook® is a social media site that provides its users a way to communicate
in a web-based environment, it is not a regularly published newspaper in the
county where the proceedings are being held. Brady stated in his Return of Service
to the Court, “I then converted the service documents to natural language text
using the automatic content extraction software recently patented by my company
and posted the complete text of the summons and complaint on the Facebook
“wall” of Defendant Coalition Against Football Corruption, Inc.” (Return of
12
Service Doc. ¶3, Nov. 15, 2014). Brady did not attach a copy of the notice as is
required by Stetson Stat. § 120.80(2) to prove proper publication. “Proof of
affidavit shall be made by affidavit of the … publisher. The affidavit shall set forth
or have attached a copy of the notice, shall set forth the dates of each publication
and otherwise comply with the requirements of the law.” Stetson Stat. § 120.80
(emphasis added). For service to be properly rendered, courts have held in
accordance with Federal law, an official copy of the summons issued by the clerk
of the court must be used with the signature of the clerk and the seal of the court.
See Schroeder v. Kochanowski, 311 F. Supp. 2d 1241 (D. Kan. 2004) (finding
insufficient service of process under FRCP 4(a) because the summons was a copy
that did not bear the seal of the court or state the address of the Plaintiff). Instead
of posting an official copy from the court, Brady used his own company’s
“automatic content extraction software” to convert the service documents to
“natural language”. Id. There was no official copy of the complaint posted to the
co-defendant’s web page as is required for service by publication under both
Federal and Stetson law rendering the attempt to serve by publication insufficient.
B. Even if an alternative means of service was necessary, service through
Facebook does not comport with due process.
i.
Facebook®, a social media platform, does not qualify as an
alternative vehicle for service by publication or direct mail
if not first approved by a Court.
13
Brady’s direct message to the account titled “KickOverArmourAss” failed to
comport with due process because there is no verification the account belonged to
Mr. Kickwood. A court has previously discredited Facebook service because a lack
of certainty regarding the owner of the account and any connection with the
associated email. Fortunato v. Chase Bank USA, N.A., No. 11 Civ. 6608 (JFK),
2012 WL 2086950, at *1 (S.D.N.Y. June 7, 2012). In Fortunato, the plaintiff
argued that service of process through Facebook among other electronic methods
of service was improrper. Fortunato v. Chase Bank USA, at *2. The court noted
“[i]n shaping a method of alternate service, the Court must bear in mind that
“[c]onstitutional due process requires that service of process be ‘reasonably
calculated, under all circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.”Fortunato at
*2 (citing Philip Morris USA Inc. v. Veles Ltd., No. 06 Civ. 2988, 2007 WL
725412, at *2 (S.D.N.Y. Mar. 12, 2007). The court determined that service by
Facebook was “unorthodox to say the least” particularly because of the difficulty
in confirming the account belonged to the defendant. Id. “the Court’s
understanding is that anyone can make a Facebook profile using real, fake, or
incomplete information, and thus, there is no way for the Court to confirm whether
the Facebook account the investigator found is in fact the third-party defendant to
be served.” Id. Fortunato at *2.
14
In the Return of Service, Brady wrote that he sent .pdf copies of the
complaint to the user profile by the name of “KickOverAmrourA$$”. The Plaintiff
has failed to certify this profile belongs to Nellie Kickwood or that Mr. Kickwood
is the only person with access to this account. The information needed to obtain a
Facebook account is limited to a person’s name, birthdate, gender and mobile
number. See Facebook Homepage, available online at: www.facebook.com.
By relying on the Facebook post made to Defendant CAFC’s account and the
private message sent to Mr. Kickwood’s account, the process server assumed
without any further verification that Kickwood checks Facebook profile regularly.
Not only has the Plaintiff failed to provide the Court with proper showing that Mr.
Kickwood’s Facebook profile belongs to him, there is nothing in the record that
would lend support to the notion that Mr. Kickwood has logged onto his Facebook
account or visited CAFC’s webpage.
II. Even if service was proper, Magistrate Judge Benjamin’s Judgment is void
pursuant to Federal Rules of Civil Procedure 60(b)(4) for lack of consent.
A. The plain language of 28 U.S.C. § 636(c) requires consent in order to
obtain jurisdiction and Mr. Kickwood never supplied the requisite
consent.
The jurisdiction of a magistrate judge is statutory. When a party to a lawsuit
consents to proceed before a magistrate judge under 28 U.S.C. § 636(c), they
waive their right to have their case presided over by an Article III judge. When
15
waiver of such a fundamental right is involved, the courts have required parties to
manifest “clear and unambiguous consent” Hall v. Sharpe, 812 F.2d 644, 647 (11th
Cir. 1987), and that when the parties fail to consent to the magistrate judge’s
jurisdiction, the power of the magistrate is limited to submitting proposed findings
of fact to a District Court judge. Reynaga v. Cammisa, 971 F.2d 414, 416 (9th Cir.
1992); see also Allen v. Meyer, 755 F.3d 866, 868 (9th Cir. 2014). Thomas v.
Whitworth, 136 F.3d 756, 758 (11th Cir. 1998).
In Yeldon v. Fisher, 710 F.3d 452 (2nd Cir. 2013), the plaintiff received a
notice of referral to a magistrate and voluntarily marked a checkbox that stated “I
do not consent.” The District Court overlooked plaintiff’s denial of consent and
ordered that case to be heard by the Magistrate who entered a default judgment
against plaintiff. On appeal, the court raised the issue sua sponte and found that
“the lack of consent [to the magistrate judge] is a jurisdictional defect that cannot
be waived. Id. at 453. As a consequence, the default judgment in Yeldon was void.
“If Yeldon did not voluntarily consent to the Magistrate Judge’s disposition of the
case pursuant to § 636(c)(1), then the Magistrate Judge lacked authority to enter
the judgment.” Id. at 453-54.
Except where all parties consent, a magistrate judge may not enter a
dispositive judgment without ignoring the plain language of § 636(c). In Henry v.
Tri-Services, Inc., 33 F.3d 931 (8th Cir. 1994), the defendant, Tri-Services
16
Corporation, had not yet entered an appearance in the action when the other parties
to the litigation consented to the referral to a magistrate judge. In that case, the
court found that Tri-Services Corporation had not explicitly and unambiguously
consented to the referral and therefore, concluded that Tri-services did not waive
its right to be heard by an Article III judge. The court held that the “Magistrate
judge lacked authority to enter final judgment where record contained no clear
statement that party … ratified such agreement…” and thus, the court vacated the
magistrate judge’s order. Id. at 933.
Plaintiff will argue that Mr. Kickwood’s lack of appearance should be
construed as implied consent. This assertion is unsupported by case law. In Roell
v. Withrow, 538 U.S. 580 (2003), the litigant at issue was present and received
explicit notice of the right to demand an Article III district judge but never turned
in a consent form. The Supreme Court found that parties could impliedly consent
“through actions rather than words,” where “the litigant or counsel was made
aware of the need for consent and the right to refuse it, and still voluntarily
appeared to try the case before the Magistrate Judge.” Id. at 589, 590. Here, unlike
in Roell, Mr. Kickwood never entered an appearance at any stage in litigation nor
did he receive an opportunity to withhold consent and demand his right to an
Article III judge.
17
In fact, there is no evidence on the record that plaintiff, the court clerk, or
Magistrate Judge Benjamin ever explicitly notified Mr. Kickwood of his right to an
Article III judge in lieu of a magistrate as required by 28 U.S.C. § 636(c). Even
the nature of a default judgment is evidence of the lack of clear consent mandated
by § 636 and creates a dissonance between the disposition that Congress and the
Courts regard as crucial to maintaining the harmony between § 636 and Article III,
§ 1. The requisite consent cannot be supplied merely by defaulting as case law has
shown. To hold otherwise, would abrogate citizen’s rights under Article III and
ignore the plain language under § 636.
B. The judgment is void pursuant to FRCP 60(b)(4) and must be vacated.
Fed. Rule Civ. Pro. 60(b)(4) states “on motion and just terms, the court may
relieve a party or its legal representative from a final judgment, order, or
proceeding … [if] the judgment is void.” A judgment is usually rendered void if
the court lacked personal jurisdiction over a defendant who was not properly
served (See Section I). “Rule 60(b)(4) applies only … where a judgment is
premised either on a certain type of jurisdictional error or on a violation of due
process that deprives a party of notice or the opportunity to be heard.” United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010).
If a court finds a judgment void, the court must vacate the judgment under
Fed. Rule. Civ. P. 60(b)(4). There is no discretion under Rule 60(b)(4). See In re
18
Outboard Marine Corp., 369 B.R. 353 (2007); Bally Export Corp. v. Balicar, Ltd.,
804 F.2d 398, 400 (7th Cir. 1986); United States v. Indoor Cultivation Equip.
From High Tech Indoor Garden Supply, 55 F.3d 1311, 1317 (7th Cir., 1995),
overruled on other grounds by Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 394–95(1993). To hold that merely by defaulting Mr.
Kickwood provided the requisite would deprive him of the opportunity to
voluntarily consent as required by the statute and violate the principles of due
process. This would diminish the structural integrity of the judiciary under Article
III and ignore the plain language of § 636(c). Accordingly, because Magistrate
Judge Benjamin’s default judgment is void for lack of consent, this court should
rule in favor of Mr. Kickwood’s Motion to Vacate Judgment.
CONCLUSION
The Plaintiff’s attempts to serve Mr. Kickwood through publication on
Facebook were not reasonably calculated and failed to comport with due process, a
fundamental right guaranteed in the United States Constitution. Furthermore, the
direct message sent to the account appearing to be maintained by Mr. Kickwood
does not comport service under FRCP 4(e)(1) or Stetson State laws. Even if the
Court concludes that Mr. Kickwood was properly served, the Court should hold
that Magistrate lacked subject matter jurisdiction because there was no consent,
either express or implied, on behalf of Mr. Kickwood. Accordingly, this Court
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should find that Mr. Kickwood was never properly served with the complaint and
that the judgment entered by Magistrate Judge Benjamin is void.
20