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Court hears fight over service and whether defaults should be set aside in Stake Escape case
Summary
Counsel debated whether an LLC and its manager were properly served and whether the circuit court abused its discretion by refusing to set aside default judgments. Petitioners argued certified-mail service failed and an LLC manager did not accept service for the company; respondents said defendants were on notice and acted intransigently.
Andrew Mons, counsel for Stake Escape of Canal City 2 LLC and petitioner Josh McCleary, asked the court to reverse the trial court's denial of motions to set aside default judgment and to allow the case to proceed on the merits. Mons argued the summons for the LLC was never left with the manager and that certified-mail service via the West Virginia Secretary of State showed non-delivery; he said the record lacks proof that the LLC was served.
Rod Smith, counsel for respondent Jason Hudson, argued service was effectuated and that the defendants failed to respond for months and then sought tactical maneuvers to avoid the litigation. "This is a case about whether companies and individuals can be properly served with a complaint and a summons and sit on those documents for nearly 6 months before filing an answer and not be held responsible," Smith said.
Judges pressed both sides on the specifics: whether the process server proffered the summons for the LLC and whether a manager accepting an individual summons is sufficient to bind the LLC under West Virginia LLC law; they asked about secretary-of-state service, the precedent on accepted/refused certified mail, and the Parsons factors that govern setting aside default judgments. Counsel disputed whether the record established intransigence; the case was submitted following closing argument.
