Royal Building Products (USA), Inc., appeals from a judgment entered by the Etowah Circuit Court (“the trial court”) denying its Rule 60(b), Ala. R. Civ. P., motion to set aside the default judgment entered against it by the trial court. We reverse the trial courts judgment.
Facts and Procedural History
On October 30, 2020, Whisenant Construction, LLC, filed a complaint against Royal, alleging that Whisenant had purchased “Celect Cellular Composite Siding” for installation on a house, that Royal is the manufacturer of that siding, that Royal had issued to Whisenant a warranty in connection with the purchase of the siding, and that Royal had thereafter breached that warranty. Whisenant requested a judgment against Royal in the amount of $38,404, plus interest and costs.
On December 30, 2020, Whisenant filed an application to the clerk of the trial court for the entry of default against Royal, along with a supporting affidavit and an affidavit regarding service. Collectively, the affidavits indicated that Whisenant had served Royal via a special process server and that the process server had left a copy of the notice of electronic filing, the summons, the complaint, interrogatories, and requests for production of documents with “Shiftd Sohata, Shift Supervisor, an adult person who appeared to be in control or management for [Royal] at the time of service, at the place of business” in Woodbridge, Ontario, in Canada. Whisenant asserted that, despite its having been served with process, Royal had failed to answer the complaint.
Whisenants application for the entry of default was granted on December 30, 2020. On January 20, 2021, Whisenant filed a motion seeking the entry of a final judgment and an assessment of damages in the amount of $46,706.82. Whisenant also filed an affidavit in support of that motion. Also on January 20, 2021, the trial court entered a default judgment in favor of Whisenant and against Royal in the amount of $46,706.82.
On May 17, 2021, Royal filed a motion for relief from the judgment, pursuant to Rule 60(b), Ala. R. Civ. P. Royal sought relief under Rule 60(b)(4), asserting that the judgment was void because, it said, Whisenant had failed to comply with Rule 4(c)(6), Ala. R. Civ. P., which provides that service upon a corporation or other entity must be on “an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.” Royal attached an affidavit of Richard Kroger, the assistant general counsel for Westlake Chemical Corporation, in support of its motion. Kroger averred that the siding at issue had been manufactured by Royal, a subsidiary of Westlake Chemical Corporation, in the Woodbridge facility. Kroger asserted that the Woodbridge facility has no employee named Shiftd Sohata. He further asserted that there is a shift supervisor for production at that facility named Mohinder Sohata; however, he further asserted that Mohinder Sohata is not authorized to accept service of process on behalf of Royal and that Sohata had no memory of accepting process. According to Kroger, Sohata does not manage or control the Woodbridge facility.
In its motion, Royal also asserted that it was entitled to have the judgment set aside under Rule 60(b)(1) because, it said, its failure to answer the complaint was based on mistake, inadvertence, or excusable neglect. Royal specifically asserted that the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988) (“the Kirtland factors”), weigh in favor of granting relief from the judgment. Kroger stated in his affidavit that the summons and complaint had eventually been delivered to the human-resources manager for the Woodbridge facility
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who, he said, then transferred the documents to a customer-care supervisor. Kroger averred that the customer-care supervisor had attempted to transfer the documents to Kroger, but, he said, that transfer had been unsuccessful.
On June 2, 2021, Whisenant filed a response to Royals motion to set aside the default judgment. Whisenant argued that Sohata met the definition of a “general agent,” see Rule 4(c)(6), Ala. R. Civ. P., as defined in Jim Fox Enterprises, Inc. v. Air France, 664 F.2d 63 (5th Cir. 1981) (“[O]ne invested with general powers involving the exercise of independent judgment and discretion is [a general or managing agent].”). Specifically, Whisenant argued that the fact that Sohata had transferred the summons and complaint to the human-resources manager indicated that Sohata had exercised independent judgment and discretion such that he could be considered a general agent. Notably, Whisenant did not attach any evidentiary material speaking to the issue of service of process. Whisenant also argued that the Kirtland factors weighed in favor of not granting relief from the judgment.
On June 17, 2021, Royal filed a reply to Whisenants response. Royal attached supplemental evidentiary material, including an affidavit from the human-resources manager for the Woodbridge facility stating, among other things, that Sohata “performs his work, both in terms of scope and manner of execution, as asked or directed by his supervisors and under their supervision.”
The trial court entered an order on July 1, 2021, denying Royals motion to set aside the default judgment. Royal filed its notice of appeal on July 30, 2021.
Discussion
On appeal, Royal argues that the trial court erred in denying that part of its motion filed pursuant to Rule 60(b)(4) because, it says, service of the summons and complaint was improper and, therefore, the default judgment entered against it was void. Royal also argues that the trial court erred in denying that part of the motion filed pursuant to Rule 60(b)(1) based on mistake, inadvertence, or excusable neglect. We find Royals first argument dispositive.
This court has explained:
“ ‘ “ ‘The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void.’ ” Boudreaux [v. Kemp], 49 So. 3d [1190] at 1194 [(Ala. 2010)] (quoting Nichols v. Pate, 992 So. 2d 734, 736 (Ala. Civ. App. 2008)).’
“Ex parte LERETA, LLC, 226 So. 3d 140, 144 (Ala. 2016). ‘ “When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983).’ Cain v. Cain, 892 So. 2d 952, 956 (Ala. Civ. App. 2004).
“․
“ ‘ “Strict compliance regarding service of process is required,” Aaron v. Aaron, 571 So. 2d 1150, 1151 (Ala. Civ. App. 1990).’ Austin v. Austin, 159 So. 3d 753, 759 (Ala. Civ. App. 2013); see also Ex parte Pate, 673 So. 2d 427, 429 (Ala. 1995) (same). Moreover,
“ ‘ “[d]efault judgments are not favored by the courts, and [the] discretion to grant [a default judgment] should be resolved in favor of the defaulting party when there is doubt as to the propriety thereof.” Colvin v. Colvin, 628 So. 2d 802, 803 (Ala. Civ. App. 1993). See also Montgomery County Bd. of Educ. v. Addison, 3 So. 3d 885, 886 (Ala. Civ. App. 2008) (concluding that service of process had not been properly made on school board because no evidence was presented indicating that the employee served was an agent of the school board authorized to receive service; as a result, this court concluded that the trial court had erred in denying school boards motion to set aside default judgment).’
“Johnson [v. Hall], 10 So. 3d [1031] at 1037 [(Ala. Civ. App. 2008)].”
Slocumb Law Firm, LLC v. Greenberger, 332 So. 3d 903, 908-09 (Ala. Civ. App. 2020).
We initially note that Whisenant asserted, without dispute, that Royal did not have a registered agent for service of process in the State of Alabama.
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Section 10A-1-5.35, Ala. Code 1975, provides:
“If an entity required by [§] 10A-1-5.31[, Ala. Code 1975,] to designate and maintain a registered agent fails to do so, or the registered agent cannot with reasonable diligence be served, the entity may be served with process as provided by the Alabama Rules of Civil Procedure and may be served with any other notice or demand required or permitted by law to be served on the entity in a manner similar to the procedure provided by the Alabama Rules of Civil Procedure for the service of process.”
Rule 4(c)(6), Ala. R. Civ. P., states:
“Service of process, except service by publication as provided in Rule 4.3[, Ala. R. Civ. P.], shall be made as follows:
“․
“(6) Corporations and Other Entities. Upon a domestic or foreign corporation or upon a partnership, limited partnership, limited liability partnership, limited liability company, or unincorporated organization or association, by serving an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.”
The Committee Comments to the Amendment to Rule 4, effective August 1, 2004, explain that
“[s]ubdivision (6) is patterned on Rule 4(d)(5), Ark. R. Civ. P., and Fed. R. Civ. P. 4(h)(1). The phrase ‘managing or general agent’ is used in a majority of the states and has been interpreted in many federal cases. The intent is to adopt the majority rule of federal caselaw in interpreting the phrase ‘managing or general agent.’ ”
As noted previously, in Jim Fox Enterprises, Inc. v. Air France, 664 F.2d at 64, the Fifth Circuit Court of Appeals explained that a general or managing agent is “one invested with general powers involving the exercise of independent judgment and discretion.” In Green v. Pike Manor, Inc., 431 So. 2d 1316 (Ala. Civ. App. 1983), this court, citing 4 Wright & Miller, Federal Practice and Procedure § 1103 (1969), explained:
“[F]ederal courts indicate a willingness to disregard labels and look only to the question of whether service on the agent justified a belief that the defendant ․ would be notified of the suit. Where the person served was not a general or managing agent, service has still been held valid where the person served is in a position of sufficient responsibility so that it is reasonable to assume that he will transmit notice of the action to his organizational superiors.”
431 So. 2d at 1317 (internal citations omitted). This court further noted that
“federal courts have upheld service upon a sales manager, or other person in charge of a sales agency; a local or ‘district manager’; a ‘division manager’; a ‘fiscal agent’ who also was a treasurer and a director; a hotel manager acting as an agent for the foreign corporation that owned the hotel; an agent of a mortgagee who collected rents, kept books and supervised buildings; a factory representative; and a ‘technical representative.’ ”
431 So. 2d at 1317 (quoting Wright & Miller, supra, at § 1103). Considering the foregoing federal law, this court held in Green that service on an “ assistant administrator[, who] turned the legal papers over to the administrator, who promptly filed an answer,” was proper because the assistant administrator “was a person of sufficient responsibility to know what he should do with the legal papers.” 431 So. 2d at 1317-18.
Although it appears that the phrase “managing or general agent” has been liberally construed, we note that, in this case, Whisenant presented no evidence in support of its assertion that the “shift supervisor” that it had served with process should be deemed to qualify as such an agent. It merely relied on the fact that the summons and complaint eventually had been transmitted to the human-resources manager and, then, to a customer-care supervisor, the latter of whom had unsuccessfully attempted to transfer the summons and complaint to the assistant general counsel of Westlake Chemical Corporation, of which Royal is a subsidiary. On the other hand, as discussed previously, Royal presented multiple evidentiary submissions in support of its assertion that the Woodbridge facility shift supervisor was not a managing or general agent of Royal.
As noted previously, it is the plaintiffs burden to prove proper service when the defendant asserts that service was improper. Slocumb, 332 So. 3d at 909. “ ‘ “[D]efault judgments are not favored by the courts, and [the] discretion to grant [a default judgment] should be resolved in favor of the defaulting party when there is doubt as to the propriety thereof.” ’ ” Id. (quoting Johnson v. Hall, 10 So. 3d 1031, 1037 (Ala. Civ. App. 2008), quoting in turn Colvin v. Colvin, 628 So. 2d 802, 803 (Ala. Civ. App. 1993)). In LVNV Funding, LLC v. Boyles, 70 So. 3d 1221, 1232 (Ala. Civ. App. 2009), this court explained that, because the plaintiff in that case had failed to introduce any evidence indicating that it had served “an officer, a partner, or a managing or general agent ․ or ․ an agent authorized by appointment or by law to receive service of process,” the plaintiff had failed to prove that it had properly served the defendant in accordance with Rule 4(c)(6). Similarly, in this case, Whisenant failed to produce any evidence in support of its assertion that it had served a general agent of Royal. The evidence indicating that the summons and complaint were transferred from employee to employee but never actually reached the person tasked with responding to the complaint was insufficient to prove that the summons and complaint were served on “a person of sufficient responsibility to know what he should do with the legal papers.” Green, 431 So. 2d at 1318. Therefore, we conclude that Whisenant failed to meet its burden of proving that it properly served Royal.
Based on the foregoing, we hold that the trial court erred by denying Royals motion to set aside the default judgment. We therefore reverse the trial courts judgment and remand the case for the trial court to enter an order setting aside the default judgment entered against Royal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
FOOTNOTES
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. Kroger did not specify who had delivered the summons and complaint to the human-resources manager.
2
. “Pursuant to statute, every corporation doing business in Alabama must maintain with the Alabama secretary of state a registered agent and a registered address. See § 10-2B-5.01, Ala. Code 1975. This ‘registered agent’ is, as a matter of Alabama law, the corporations agent ‘for service of process, notice, or demand required or permitted by law to be served on the corporation.’ § 10-2B-5.04(a), Ala. Code 1975.”Johnson v. Hall, 10 So. 3d 1031, 1034 (Ala. Civ. App. 2008).
MOORE, Judge.
Thompson, P.J., and Edwards, Hanson, and Fridy, JJ., concur.