Roth v. Walters et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ERIC LEE ROTH,
Plaintiff 4:22-cv-4096
vs. MEMORANDUM
BOB WALTERS,MERS DOE, AND ORDER
GALE HANDER,TITLE DOE,
JULIE RISTY,FANNIE MAE DOE,
AMY FOLSOM, 1-5 DOES,
CHRIS LELLA,
Defendants
Pending before the Court is Plaintiffs pro se "verified motion for default
judgement [sic] on Bob Walters."(Doc. 19). Plaintiff alleges Bob Walters is the
COO of Quicken Loans, housed in Detroit, MI. Plaintiff further alleges he
arranged for service of summons on Walters and with "100 percent certainty" Bob
Walters has received the Complaint.(Id., PgID 460). Bob Walters has filed a
response to Plaintiffs motion for default judgment.(Doc. 27). He also has filed a
motion to dismiss both for insufficient service of process. Rule 12(b)(5), and lack
of personal jurisdiction. Rule 12(b)(2).(Doc. 23). Plaintiff has not responded to
Walters' motion. For the following reasons, the Court denies Plaintiffs motion for
default judgment(Doc. 19) and grants Defendant's motion to dismiss(Doc. 23).
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BACKGROUND
Plaintiff filed a lengthy Complaint against several Defendants, including
employees of Minnehaha County, Wells Fargo Bank, Quicken Loans, and Doe
Defendants. (Doc. 1). The Complaint is styled as a "Quiet Title Action."(Id.).
The first Cause of Action is captioned "Trespass on the case—^Racketeer
Influenced and Corrupt Organizations Law."(Id., PgID 17). Count 2 is captioned
"Trover—Negligence."(Id., PgID 19). Count 3 is "Special Assumpsit—^Breach of
Contract."(Id.). Count 4 is "Indebitatus Assumption—^Vicarious Liability."(Id.,
PgID 20). Plaintiffs RICO claim against Walters alleges, among many other
things, breach of duty through extortion, fraud, and "lying about me being a
person"(apparently in the context of definitions covering corporations).(Id., PgID
18). Throughout his Complaint, Plaintiff challenges the existence and legitimacy
ofthe monetary system in place in the United States. With respect to Bob Walters,
Plaintiff demands "general damages of 2,091,600.00 lawful dollars."(Doc. 1, PgID
21). Plaintiff does not precede this figure with a dollar sign and appears to be
seeking gold and silver. He also seeks costs and attorney's fees. (Id.).
Plaintiff states he entered into two loans with Quicken Loans, but alleges the
company gave "no valuable consideration" because "FEDERAL RESERVE
NOTES are not lawful money."(Id., PgID 3). Accompanying Plaintiffs
Complaint is a list of"federal questions" he has posed,"wherein he wishes to have
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a declaratory judgement."(Doc. 1-1, PgID 22). He also attached a lengthy
compilation of documents,(Doc. 1-2, 335 pages), including a warranty deed;
insurance contract; mortgage and loan documents; a booklet entitled "Modem
Money Mechanics"; an article entitled "The Mortgage Electronic Registration
System (MERS)—^The Dark [sic] Vader ofForeclosures in America"; documents
alleging fraud by Quicken Loans; documents alleging misconduct by Minnehaha
County employees; Land Patent documents; historical documents relating to
certain land; a complaint to the South Dakota Bar; documents recounting
Plaintiffs interactions conceming certain real property; and other documents
purporting to explain land transactions and challenge the implementation ofreal
estate financing in the United States. Plaintiff also includes sections of codes from
various jurisdictions,(id., PgID 211), and excerpts from the treatise American
Jurispmdence.(Id., PgID 226).
Plaintiffs Complaint alleges serious misconduct against Walters in
connection with a mortgage through Quicken Loans for $159,993.00(Doc. 1-2,
page 22/335,PgID 45). Plaintiff accuses Walters of fraud, which he says is
unrebutted because Plaintiff sent Walters documents (with a red fingerprint
accompanying his signature), seeking 639,732(no dollar sign included)in gold and
silver plus $10,000 for any correspondence Plaintiff received from Walters that is
not a response to his demands.(Id., page 78/335,PgID 101). Other affidavits
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concerning Walters are included in the attachment.(Id., PgID 109, 115). Plaintiff
asserts Walters' silence is dishonor and acquiescence to Plaintiffs assertions.(Id.,
page 92/335,PgID 115). Apparently, Walters did not respond to these mailings
from Plaintiff,(id., PgID 10), but a Quicken Loans employee named Sashae Harris
did.(Id., PgID 121). Plaintiffs response was that Harris' response was
"fraudulent." (Id., PgID 123).
Plaintiff did not join Quicken Loans as a defendant. The allegations and
damages sought from Walters appear to be based on his alleged individual liability
to Plaintiff. There is no indication Walters dealt with Plaintiff in connection with
the loans or in any other way. (Doc. 25,PgID 498).
Plaintiff filed his lawsuit against all Defendants on July 18, 2022. Service of
process is described in Doc. 6. With respect to Bob Walters, on July 26, 2022, a
process server in Detroit, MI, attempted to serve Walters at an office building, but
was prevented from doing so by a security guard. (Doc. 6,PgID 376). On August
1, 2022, Debra Roth (indicated as Plaintiffs wife on a marriage license in Doc. 1-
2,PgID 170), mailed copies ofthe Complaint to Walters at two addresses in
Michigan by priority mail.(Doc. 6,PgID 374-75). In his motion for default
judgment filed on November 21, 2022,Plaintiff attached a letter to him from
Timothy R. Rahn, an attorney at Ballard Spahr, LLP,in Sioux Falls, SD. The letter
indicates Defendant Walters' view that the lawsuit is without merit, but also states
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Mr. Rahn is "authorized to waive service on Mr. Walters' behalf and will agree to
do so if you request such waiver" pursuant to F.R.C.P. 4(d).(Doc. 19-1,PgID
465). Plaintiffs motion also includes copies of complaints to the South Dakota
Bar against five attorneys representing Defendants in this case. The baseless
complaints to the bar allege serious misconduct including forgery and fraud.(Doc.
19-2,PgID 466-76).
The Court can find nothing to indicate Plaintiff sought service upon Walters
under F.R.C.P. 4(d)in accordance with Defendant's offer as ofthe date ofthe
filing ofthis Order. The Court assumes Plaintiff did not follow the waiver of
service procedure or achieve personal service on Walters. Defendant Walters
clarifies this is the situation because he has moved for dismissal based on
insufficient service of process. (Doc. 23). As part of his motion. Defendant
Walters includes a declaration fi"om Attorney Rahn with copies of envelopes Rahn
states he sent to Plaintiff, which were returned to Ballard Spahr. As noted above.
Plaintiff has filed a document(Doc. 19-1) which confirms Rahn agreed to accept
service for Walters in accordance with F.R.C.P. 4(d). Plaintiff did not follow
through. Service in compliance with applicable statutes has not been made on
Walters.
LEGAL STANDARD
1. Default Judgment
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Plaintiff has moved for a default judgment, and the Court assumes this is
because Defendant Walters has not responded to the Complaint. (Doc. 19).
F.R.C.P. 55 govems default judgments and provides in (b)(1)that the clerk of court
must enter a default judgment ifthe claim is for a sum certain or a sum that can be
made certain by computation. The Rule further states that "In all other cases, the
party must apply to the court for a default judgment." Fed. R. Civ. Pro. 55(b)(2).
The Eighth Circuit has discussed the prerequisites for entry of a default
judgment in several helpful cases. In Glick v. Western Power Sports, the Court
addressed a situation involving two defendants sued in conjunction with a neck brace
that failed. 944 F.3d 714(8th Cir. 2019). One defendant answered the complaint and
succeeded in obtaining a dismissal under F.R.C.P. 12(b)(6)for failure to state a claim
upon which relief can be granted. The other defendant did not answer initially, but
did so in conjunction with filing a Rule 12(b)(6) motion. The district court denied
the plaintiffs motion for default judgment, reasoning that although the defendant's
Rule 12(b)(6) motion was untimely, the complauit failed to state a claim against the
defendant. Id. at 718. The Eighth Circuit affirmed, reiterating the general rule that,
while a district court may enter a default judgment as appropriate, it is "uicumbent
upon the district court to ensure that the unchallenged facts constitute a legitimate
cause of action prior to entering final judgment." Id. (quoting Marshall v. Baggett,
616 F.3d 849, 852-53 (8th Cir. 2010)). The court concluded the factual allegation
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in the complaint was insufficient to state a claim for relief and found the district
court had not abused its discretion in dismissing. Id.
In Martinizing International, LLC v. BC Cleaners, the court addressed a
similar problem and reinforced the rule that a party in default "does not admit mere
conclusions oflaw" and the court must determine that the plaintiff has shown in its
complaint that it is entitled to relief. 855 F.3d 847, 850 (8th Cir. 2017)(quoting
Marshall,616 F.3d at 853). In reviewing the record, the Eighth Circuit commented
that the "most notable aspect" of the case was that the allegations in the complaint
were "directly contradicted" by the terms of the agreement appended to the
complaint. Id. As a result, the plaintiffs effort to impose personal, rather than
corporate liability, failed and the motion for default judgment was properly denied.
Id. at 852.
Both Glick and Martinizing rely on Marshall, which is instructive for the
case at bar where Plaintiff has sued Defendant Walters in his individual capacity.
In Marshall,the plaintiffs sued the defendant in her individual, not representative,
capacity. 616F.3dat851. The Eighth Circuit determined it was error for the
district court to enter a default judgment against her because there was no theory
supporting individual liability. Id. at 853 {citrng Nishirnatsu Constr. Co., Ltd. v.
Houston Nat. Bank, 515 F.2d 1200, 1206-07(9th Cir. 1975)(contract attached to
complaint defeated plaintiffs claim of individual liability)). The court explained
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that the district court must consider "whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not admit mere conclusions
oflaw." Id.(quoting Murray v. Lene, 595 F. 3d 868, 871 (8th Cir. 2010)). See also
Thomson v. Wooster, 114 U.S. 104, 113(1884)(defaultjudgment is unassailable
on the merits but only if supported by well-pleaded allegations, assumed to be
true).
2. Service of Process
Defendant Walters has moved to dismiss based on insufficient service of
process. Rule 12(b)(5).(Doc. 23). Federal Rule of Civil Procedure A-Summons
provides the procedures for serving defendants in a civil case, and as pertinent to
the case at bar states that an individual within a judicial district ofthe United States
may be served by the following:
(1)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; or
(2)doing any ofthe following:
(A)delivering a copy ofthe summons and ofthe complaint to the
individual personally;
(B)leaving a copy of each at the individual's dwelling or usual place
of abode with someone of suitable age and discretion who resides
there; or
(C)delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
The Rule does not authorize service through regular mail and such a means of
service has been deemed inadequate. Larsen v. Mayo Med. Center, 218 F.3d 863,
8
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868 (8th Cir. 2000){ciXmg Alholm v. American Steamship Co., 144 F. 3d 1172,
1176 (8th Cir. 1998)); Lu v. SAP America, Inc., 2022 WL 13983546, * 4-5 (6th
Cir. 2022)(sending by mail is not equivalent of serving complaint).
Pursuant to F.R.C.P. 4(d), service may be waived. The purpose ofthe
waiver of service provision is to "avoid unnecessary expenses of serving the
summons." Fed, R. Civ. P. 4(d). A defendant who fails to waive service may have
the costs of service imposed upon him or her. Id. § 4(d)(2).
Rule 4 also sets the time frame for service and provides in pertinent part that
"if a defendant is not served within 90 days" ofthe filing ofthe complaint, the
court "must dismiss the action without prejudice" or order service within a
specified time. Ifthe plaintiff shows "good cause" for the failure of service, the
court must extend the time. Fed. R. Civ. P. 4(m).
In South Dakota, S.D.C.L. § 15-6-4(d)(8) requires delivery ofthe summons
to the defendant personally. Substitute service can be accomplished in accordance
with SDCL § 15-6-4(e) by leaving a copy at the defendant's dwelling with a
person over the age offourteen who resides there. Service by mailing a copy is not
contemplated by SDCL § 15-5-4 as sufficient. Failure to comply with the rules
governing service of process can result in dismissal. Marshall v. Warwick, 155
F.3d 1027, 1030(8th Cir. 1998).
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The rules for service in Michigan, where Defendant Walters resides, are
similar but not identical to the South Dakota rules. According to the Michigan
Rules of Court,"Process may be served... by delivering a summons and a copy of
the complaint to the defendant personally" or sending the summons by "registered
or certified mail, return receipt requested." Mich. Ct. R. 2.105(A). Service is
made "when the defendant acknowledges receipt ofthe mail." Id. An alternative
method of service is available to the plaintiff at the discretion ofthe court. Id. §
(J). Improper service will not result in dismissal if the defendant was informed of
the action, § (K)(3), although the Michigan courts assess whether or not good
cause excuses the improper service and order dismissal where it is lacking. See,
e.g., Koehn v. 313 Presents, LLC,2023 WL 36065, *2(E.D. Mich. 2023); Perlick
Corp. V. Glastender, Inc., 2022 WL 3568983,*2(E.D. Mich. 2022); Harris v.
Smith,2022 WL 296 1526, *3(E.D. Mich. 2022)(pro se plaintiff rebuffed efforts
to correct service). See also Lii, 2022 WL 13983546, at * 4-5.
3. Jurisdiction over the Person
Defendant Walters has moved to dismiss for lack of personal jurisdiction.
Rule 12(b)(2). Many courts have explained the requirements for establishing that a
court may exercise jurisdiction over a party to a case. See generally Ford Motor
Company v. Montana Eighth Judicial District Court, U.S. , 141 S.Ct. 1017,
209 L.Ed.2d 225 (2021). The Eighth Circuit has issued numerous decisions on the
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topic, including Steinbuch v. Cutler, where the court commented about the factual
requirements as follows;"To survive a motion to dismiss, the plaintiff must state
sufficient facts in the complaint to support a reasonable inference that defendants
may be subjected to jurisdiction in the forum state." 518 F.3d 580, 585 (8th Cir.
2008). Plaintiff has the burden to establish personal jurisdiction if it is contested.
Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1090(8th Cir. 2009).
With respect to the legal determination of personal jurisdiction, the courts
use a two-step analysis which requires first, that the applicable state long-arm
statute must be satisfied, and second, the court's exercise ofjurisdiction must
comport with due process. Northrup King Co. v. Compania Productora Semillas
Algodoneras Selectas, S.A., 51 F.3d 1383, 1387(8th Cir. 1995). As this Court
noted in Huffv. City ofBrookings Police Dept., South Dakota construes its long-
arm statute to confer jurisdiction to the fullest extent permitted by the Due Process
Clause. 2022 WL 2528255, *4(D.S.D. 2022){citing Dakota Indus., Inc. v. Ever
Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994)). Therefore, the analysis focuses on due
process. Id.
In Fastpath, Inc. v. Arbela Technologies Corp.,the Eighth Circuit cited the
leading cases on the subject to reinforce that "due process requires that a non
resident have minimum contacts with the forum state such that the maintenance of
the lawsuit does not offend traditional notions of fair play and substantial
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justice." 760 F.3d 816, 820(8th Cir. 2014)(citing World-Wide Volkswagen v.
Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 564-65, 62 L.Ed.2d 490
(1980); Int'l Shoe Co. v. Washington, 326 U.S. 310, 316,66 S.Ct. 154, 158, 90
L.Ed. 95 (1945); Guinness Import Co. v. Mark VIIDistrihs., Inc., 153 F.3d 607,
614(8th Cir.1998)). See dXso Ford Motor Company, 141 S.Ct. at 1024-25. The
notion of minimum contacts is based on the premise that "those who live or
operate primarily outside a State have a due process right not to be subjected to
judgment in its courts as a general matter." Fastpath, 760 F.3d at 820 (quoting J.
Mclntyre Mach, Ltd. v. Nicastro, U.S. , 131 S.Ct. 2780, 2787, 180 L.Ed.2d
765 (2011)). Fastpath provided additional guidance, stating that "a defendant's
contacts with the forum state must be sufficient so that a non-resident defendant
should reasonably anticipate being haled into court there." Id. at 820-21 (citing
World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567; Stanton v. St. Jude
Med., Inc., 340 F.3d 690, 694(8th Cir. 2003);Epps v. Stewart Info. Servs.
Corp., 327 F.3d 642,648 (8th Cir. 2003)). The court added that sufficient
minimum contacts can be established if the defendant "purposely avails itself of
the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws." Id. at 821 (citing J. Mclntyre Mach., 131 S.Ct.
at 2787,(yuoLmg Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240,2
12
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L.Ed.2d 1283 (1958)). See Romak USA, Inc. v. Rich, 384 F.3d 979,984(8th Cir.
2004)(analyzing minimum contacts of individual defendant).
In Kaliannan v. Liang,the court reiterated that in evaluating personal
jurisdiction under the Due Process clause, a five-factor test is used to determine the
sufficiency of a non-resident defendant's contacts with the forum state. 2 F.4th 727,
733 (8th Cir. 2021)(citing Whaley v. Esebag,946 F.3d 447,452(8th Cir. 2021)).
The five factors are; 1)the nature and quality of contacts with the forum state; 2)
the quantity ofthe contacts; 3)the relation ofthe cause of action to the contacts; 4)
the interest ofthe forum state in providing a forum for its residents; and 5)
convenience ofthe parties. Id. at 733. See also Fastpath, 760 F. 3d at 821; Dever v.
Hentzen Coatings, 380 F.3d at 1073-74 (8th Cir. 2004){(yaotmg Burlington Indus.,
Inc. V. Maples Indus., Inc., 97 F.3d 1100, 1102(8th Cir.1996)). Kaliannan added
that the court gives significant weight to the first three factors. 2 F.4th at 733. See
Huff, 2022 WL 2528255, *5.
When the question before the court involves jurisdiction over corporate
employees, the Supreme Court has made clear that the employee's contacts are not
to be judged by the corporation's activities in the forum; rather, the court must look
at the degree to which the employee personally participated in the alleged
wrongdoing. Kooima v. Zacklift Intern., Inc., 2002 WL 34458064, *2(D.S.D.
2002)(citing Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804
13
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(1984){citingRush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571,62 L.Ed.2d 516
(1980))). See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n. 13, 104 S.Ct.
1473, 79 L.Ed.2d 790(1984)("[J]urisdiction over an employee does not
automatically follow from jurisdiction over the corporation which employs him.").
ANALYSIS
1. Default Judgment
Although Rule 55(b) permits a court to enter a defaultjudgment, the court
may not do so without ascertaining whether the complaint's "unchallenged facts
constitute a legitimate cause of action." Marshall, 616 F.3d at 853. The Court has
examined Plaintiffs complaint and determines that its allegations do not meet that
standard. For example, the complaint seeks damages that are not legitimate, as
Plaintiff seeks gold and silver, not dollars, to satisfy his claim against Walters of
"2,091,600.00 lawful dollars." No facts support damages of any amount, much
less this amount in this form.
Plaintiff also makes allegations of extortion, fraud, and other serious
misconduct that are unsupported by the facts. He cites a loan from Quicken Loans
(Doc. 1, PgID 2), then presents his theory that there is no contract and asserts
"alleged mortgage lenders do not loan lawful money, legal tender, currency,
deposits and they cannot loan credit." (Id., PgID 33). He asserts that Defendant
and Quicken Loans, Inc., have only shown willful intent to continue to "Harm and
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Damage" apparently because he called the company for information and did not
receive it. (Id., ^ 55,PgID 10). He asserts,"The willful intent ofBob Walters and
Quicken Loans Inc. representative's is to continue harm and damage by collecting
FEDERAL RESERVE NOTES,by treats of stealing my property with bad faith,
without lawful valuable consideration through an unlawful foreclosure." (Id., ^
52). Plaintiffs RICO claim,(id., PgID 17), invokes "universal imperatives" but
does not plead any ofthe elements of such a claim mcluding an enterprise, pattern,
racketeering activity, or conspiracy to commit such actions. 18 U.S.C. §§ 1962,
1964. See Crest Const. IIv. Doe,660 F.3d 346, 353 (8th Cir. 2011)(discussing
pleading requirements for RICO claims). Mail fraud and other types of
misconduct are listed in lengthy subparts ofthe Complaint at paragraphs 95-97,
(id., PgID 17-19), but there is no explanation of how those actions may have been
committed or by whom. Plaintiffs remaining causes of action are equally
indecipherable in that they incorporate these paragraphs ofthe Complaint noted in
the RICO context.(Id.).
Review ofPlaintiffs Complaint makes clear that the Complaint's
"unchallenged facts" do not "constitute a legitimate cause of action." Marshall,
616F.3dat 853. Therefore, the Court denies Plaintiffs motion for default
judgment against Walters.(Doc. 19).
2. Service of complaiiit
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Defendant Walters endeavored to comply with the provisions ofF.R.C.P. 4
by waiving service.(Doc. 19-1; 24). Plaintiff failed to take advantage ofthe
Defendant's offer. He appears to have relied on Debra Roth's having mailed the
Complaint and the process server having left it at an office. These actions by the
Plaintiff are insufficient to obtain service, which must be done within 90 days of
filing the action in accordance with F.R.C.P. 4(m).
Although a court may dismiss a complaint filed by a plaintiff who fails to
complete service as Rule 4 directs, it is clear the Court can refrain from doing so,
particularly where the plaintiff is pro se. The Advisory Committee Notes(1993
Amendment)to this provision of Rule 4 cite Robinson v. America's Best Contacts
& Eyeglasses, 876 F.2d 596, 598 (7th Cir. 1989)(where plaintiff lacked filing fee
on date of filing but paid it subsequently, court abused discretion by dismissing pro
se complaint). See also Virtivarian v. Golden Rule Ins. Co., 962 F.2d 11(Table)
(7th Cir. 1992)(good cause supported extension oftime for obtaining service of
process and precluded dismissal on that basis).
"Good cause" was described in Kurka v. Iowa County, Iowa, as
follows: "[G]ood cause is likely (but not always)to be found when [1] the
plaintiffs failure to complete service in timely fashion is a result ofthe conduct of
a third person, typically the process server,[2] the defendant has evaded service of
the process or engaged in misleading conduct,[3] the plaintiff has acted diligently
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in trying to effect service or there are understandable mitigating circumstances, or
[4] the plaintiff is proceeding pro se or in forma pauperis." 628 F.3d 953,957(8th
Cir. 2010)(quoting 4B Charles Alan Wright & Arthur R. Miller, FEDERAL
PRACTICE AND PROCEDURE § 1137, at 342(3d ed. 2002)). See also
Ballegooyen v. Brownson, 2016 WL 5794719, *3 (D.S.D. 2016). The case before
the Court is similar to that in Scofield v. FishbackFinancial Corp., 2010 WL
2464860, *7(D.S.D. 2010). There, plaintiff was put on notice of defective service
when defendant offered to waive service in accordance with Rule 4(d). Rather
than cure and serve, plaintiff rejected defendant's offer and did nothing more to
accomplish service. As the court pointed out, when a plaintiff avoids an obvious
means of correction,"good cause" is lacking if the method of service fails. Id.
Adams v. AlliedSignal Gen. Aviation Avionics, 74 F. 3d 882, 887(8th Cir.
1996)). See generally, Heisinger v. CJ Ventures, LLC,2009 WL 790202, *3-4
(D.S.D. 2009).
Good cause is absent in this case. Attorney Rahn offered to accept service,
although he was not required to do so, thus indicating there was no effort by
Walters to evade service. Rahn advised Plaintiff ofthe civil procedure rule that
should be followed. Plaintiff refused to take the path Rahn made available to him.
Instead, Plaintiff relied on his wife's having used regular mail to send the
complaint to Walters. As noted above, this is insufficient under both the federal
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and pertinent state rules. The Court has considered PlaintifPs pro se status, and
while that might be sufficient to find "good cause" under certain circumstances, it
is not sufficient to overcome the factors recited above that indicate good cause has
not been established. That finding, coupled with the Court's decision below on
jurisdiction over the Defendant, leads to the further determination that Plaintiff will
not be given an opportunity to cure the service.
3. Personal jurisdiction
Plaintiff must allege facts to support the Court's exercise of personal
jurisdiction over Walters, and the latter has to have established minimum contacts
with South Dakota. Ford Motor Company, 141 S.Ct. at 1024-25. Plaintiff has not
cited facts to establish that the Court can exercise personal jurisdiction over
Defendant, and according to Defendant's declaration, none exist. Walters resides in
Michigan, and as an individual, has no personal or business ties to South Dakota.
(Doc. 26). Plaintiffs complaint does not allege any conduct by Defendant at all,
much less in South Dakota, that would establish personal jurisdiction related to this
lawsuit.
In assessing the five factors set forth in Kaliannan, the Court first must
guage the nature and quality of Walters' contacts with South Dakota. 2 F.4th at
733. Plaintiff alleges none with respect to Walters' individually, and Walters
asserts he has no contacts with the state. (Doc. 26). He has not conducted personal
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business in South Dakota, does not reside in the state, does not own property in the
state, and has not conducted business personally with Plaintiff. (Id.). Kaliannan's
second factor is to assess the quantity of contacts; here the quantity is zero. Third,
the cause of action does not relate to the contacts because there are no contacts.
These factors weigh so strongly against finding personal jurisdiction over Walters
as an individual, that the Court finds it would violate due process to "hale him into
court" individually in this state. World-Wide Volkswagen, 444 U.S. at 297.
Conclusion
For Plaintiff to prevail in his motion for default judgment against Defendant
Walters, his complaint must have merit. His complaint lacks merit, and his motion
for defaultjudgment is denied on that basis.(Doc. 19).
Defendant Walters has moved to dismiss both for insufficient service of
process, Rule 12(b)(5), and for lack of personal jurisdiction. Rule 12(b)(2).(Doc.
23). The Court finds it lacks personal jurisdiction over Defendant Walters and
grants his motion to dismiss under Rule 12(b)(2). (Doc. 23). The Court also finds
the service was insufficient, and that Plaintiff failed to take advantage ofthe offer
to cure it. The Court finds good cause for the defective service is lacking and
refrains from ordering Plaintiffto cure it given the Court's determination it lacks
personal jurisdiction over Walters. Therefore, the Court grants Defendant's motion
to dismiss for insufficient service. Rule 12(b)(5). (Id.).
19
Case 4:22-cv-04096-LLP Document 34 Filed 01/11/23 Page 19 of 20 PageID #: <pageID>

Accordingly, IT IS ORDERED that
1. Plaintiffs motion for default judgment against Defendant Walters(Doc. 19) is
denied; and
2. Defendant Walters' motion to dismiss(Doc. 23)is granted.
Dated this IQ "day of January, 2023.
ATTEST:
MATTHEW W.THEI^,CLERK
BY THE COURT:
4lawrence L. Piersol
United States District Judge
20
Case 4:22-cv-04096-LLP Document 34 Filed 01/11/23 Page 20 of 20 PageID #: <pageID>