A Magistrate Court judge in South Carolina has recommended denying a plaintiff’s motion for default judgment in a Fair Debt Collection Practices Act case because he hasn’t met the burden for proving that the defendant was actually served with a copy of the summons and complaint.
A copy of the recommendation in the case of Childs v. Advanced Capital Solutions can be accessed by clicking here.
The plaintiff originally filed suit back in March and the Court issued a summons to an address in Canton, Ohio for the defendant. The plaintiff sought to include an additional summons be sent an address in South Carolina. The signature of an individual was attached to the documents submitted by the plaintiff, indicating that the summons was delivered on April 6. The plaintiff also included a USPS tracking code indicating the summons was sent via first-class mail.
The defendant never entered an appearance in the case nor has it filed an answer to the complaint.
Under the rules of civil procedure, a plaintiff may not serve a copy of a summons and complaint by himself or herself by sending a copy through certified mail. Also, a summons and complaint must be served to an authorized agent of the company. In this case, the plaintiff has not indicated that the representative who signed for receipt of the summons or complaint was allowed to accept service on behalf of the defendant.
Finally, noted Judge Shiva V. Hodges for the District Court for the District of South Carolina, the plaintiff did not include an affidavit from the process server confirming that service was effected.
Judge Hodges recommended that the plaintiff’s motion for default judgment be denied, but did allow for an extension of time to serve the summons and complaint be allowed, if the plaintiff provided a good reason for failing to properly serve the defendant so far.
