govinfo:USCOURTS-ksd-2_25-cv-02355-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS 
 
PROGRESSIVE NORTHWESTERN 
INSURANCE COMPANY, 
 
 Plainti
ff, 
 
 
 vs. Case No. 25-cv-2355-EFM-JBW 
 
TAYLAR DEERE-NOVOTNY, et al., 
 
 De
fendants. 
 
 
 
 
 
MEMORANDUM AND ORDER 
 This matter comes before the Court on Defe ndant Horizon Transport, Inc.’s (“Horizon’s”) 
Motion to Quash Service of Process and Set Aside Entry of Default (Doc. 19). Horizon argues that 
Plaintiff Progressive Northwestern Insurance Comp any (“Progressive”) failed to effect service 
because the process server did not serve anyone associated with Horizon. It asks the Court to quash 
service and set aside the Clerk’s Entry of Defa ult entered against Horizon on December 1, 2025. 
For the reasons set forth below, the Court grants Horizon’s Motion. 
I. Factual Procedural Background 
 Progressive filed this lawsuit on July 2, 2025. This declaratory judgment action pertains to 
the existence of liability coverage arising from se parate insurance policies issued by Progressive 
to Defendants Jonathan Ditmars and Mark Ditmars. Progressive seeks a declaratory judgment that 
it does not owe any liability covera ge for claims arising out of an automobile accident between 
Defendants Mark Ditmars and Ta ylar Novotny in Nemaha Count y, Kansas, on November 30, 

 
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2024. Horizon’s relationship to the parties is not clear from the Complaint. But Horizon asserts in 
its Motion that Defendant Mark Ditmars was an i ndependent contractor for Horizon prior to the 
accident. 
 A process server claims he served Hori zon on July 18, 2025, by delivering papers to 
“Gabriel, Gutierriz, Vice President Risk Manageme nt” at Horizon’s Indiana office. The Proof of 
Service describes the person served as “a black-haired Hispanic ma le, 45-55 years of age, 6’0’-
6’2” tall and weighing 180-200 lbs.” 
 According to Horizon, the process server’s desc ription does not match anyone at its Indiana 
office. Gabriel Gutierrez, who is Horizon’s Vice President of Risk Manage ment, declares in his 
Affidavit that he was never served. According to Horizon, Gutierrez is 40 years old, 6’5” tall, and 
weighs 275 pounds. 
 On November 26, 2025, Progressive submitted a Request for Entry of Default to the Clerk 
of the Court. The Clerk’s Entry of Default was entered on December 1, 2025. That same day, 
Gutierrez received a certified copy of Progressive’s Request for Entry of Default. Within two days, 
Horizon retained counsel and filed this Motion as king the Court to quash service of process and 
set aside the Entry of Default. 
II. Legal Standards 
A. Motion to Quash Service of Process 
 Before a court can exercise personal jurisdic tion over a defendant, the plaintiff must have 
served process compliant with Federal Rule of Civil Procedure 4. Under Rule 4, a corporation may 
be served “by delivering a copy of the summons and of the complaint to an officer, a managing or 

 
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general agent, or any other agent authorized by appointment or by law to receive service of 
process.”1 
 Service is insufficient where a party serves the wrong person or serv es an individual not 
permitted to accept service.2 The burden is on the plaintiff to make a prima facie showing that the 
service satisfied the statutory and due process demands for the court to exercise jurisdiction. 3 
Where service is defective but curable, courts qu ash service and allow the plaintiff to reserve the 
defendant.4 
B. Motion to Set Aside Clerk’s Entry of Default 
 Under Rule 55 (c), the court may set aside an entry of default for good cause.
5 This is a 
lesser standard than the excusable neglect required to set aside a default judgment. 6 The court 
considers three factors when determining whether to set aside an entry of default: (1) whether 
default was willful; (2) whether the plaintiff woul d be prejudiced; and (3) whether the defendant 
has a meritorious defense.7 
 
 
1 Fed. R. Civ. P. 4(h)(1)(B). 
2 Pope v. Boy Scouts of Am., 2006 WL 3199423, at *1 (D. Kan. 2006) (citing 2 James Wm. Moore, Moore's 
Federal Practice ¶ 12.33 [4] at 12–54 (3d ed.1997)). 
3 Wanjiku v. Johnson Cnty., 173 F. Supp. 3d 1217, 1223 (D. Kan. 2016) (citing Oltremari by McDaniel v. 
Kan. Soc. & Rehab. Serv., 871 F. Supp. 1331, 1349 (D. Kan. 1994)). 
4 Gregory v. U.S./U.S. Bankr. Ct. for Dist. of Colo., 942 F.2d 1498, 1500 (10th Cir. 1991) (citing Pell v. Azar 
Nut Co., 711 F.2d 949, 950 n.2 (10th Cir.1983)). 
5 Fed. R. Civ. P. 55(c). 
6 Martinez v. CitiMortgage, Inc., 347 F. Supp. 3d 677, 690 (D.N.M. 2018) (citing Pinson v. Equifax Credit 
Info. Servs., Inc., 316 F. App’x 744, 750 (10th Cir. 2009)). 
7 Id. at 691 (citing United States v. $285,350.00 in U.S. Currency, 547 F. App’x 886, 887 (10th Cir. 2013)). 

 
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III. Analysis 
A. Plaintiff’s service on Horizon is not valid. 
 Horizon argues that service is not effective because the process server did not actually serve 
Gabriel Gutierrez, Horizon’s Vice President of Risk Management. The Proof of Service states that 
the process server served “Gabriel Gutierriz” and describes that person as 45 to 55 years old, 6’0’ 
to 6’2” tall, and weighing 180 to 200 pounds. Horiz on contends that its Vi ce President of Risk 
Management, who spells his na me Gabriel G-U-T-I-E-R-R-E-Z, was never served on July 18, 
2025, and that Gutierrez does not meet the physical description of the person described in the Proof 
of Service. 
 Progressive disputes that se rvice was improper and faults Ho rizon for failing to offer any 
evidentiary support as to how Gutierrez’s phys ical description differs from the individual 
described in the Proof of Service. According to Progressive, Gutierrez’s proffered affidavit only 
states that he was not served. It does not state that he was taller and heavier than the person 
described in the Proof of Service. 
 “A signed return of service c onstitutes prima facie evidence of valid service ‘which can be 
overcome only by strong and convincing evidence.’”
8 Courts have held that “[a] bare allegation 
by a defendant that he was improperly served ca nnot be allowed to bely [sic] the [return of 
service.]”9 Here, the Court finds that Horizon submits more than a bare allegation that it was 
improperly served. Although Gutierrez’s first affidavit does not set forth his physical description, 
he submits a supplemental affidavit that states he is 40 years old, 6’5” tall, and weighs 275 pounds. 
 
8 Oltremari, 871 F. Supp. at 1349 (quoting O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th 
Cir. 1993)). 
9 Id. at 1350 (quoting FROF, Inc. v. Harris, 695 F. Supp. 827, 829 (E.D. Pa. 1988)). 

 
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The supplemental affidavit also reiterates that Gutierrez was not served on July 18, 2025. The 
Court finds that the phy sical differences, especially the 75-pound weight difference, between 
Gutierrez and the person described in the Proof of Service to be substantial. Thus, Horizon offers 
strong and convincing evidence that service was defective. Because service is defective but 
curable, the Court quashes service and orders Progressive to serve Horizon within 30 days of the 
date of this Order. 
B. The Entry of Default is Set Aside. 
 The Court considers the following three factor s when determining whether to set aside an 
entry of default: (1) whether the default was th e result of the defendant’s culpable conduct, (2) 
whether the plaintiff would be prejudiced by setting aside the entry of default, and (3) whether the 
defendant presents a meritorious defense to the plaintiff’s claim.
10 These three factors all favor 
Horizon. 
 First, the Clerk’s Entry of Default was not the result of Horizon’s culpable conduct, as 
Horizon was not effectively served. Second, Progr essive will not be prejudiced by setting aside 
the entry of default. Horizon filed its Motion within two days of the Entry of Default. Furthermore, 
this case is still in the early stages of discovery. Progressive can properly serve Horizon, and the 
case will proceed normally. And third, Horizon presents defenses that are worthy of consideration 
on the merits. Thus, the Court concludes that Horizon has established good cause for setting aside 
the Clerk’s Entry of Default in this case. 
 
10 Freeze Dry Products, Inc. v. Metro Park Warehouse, Inc ., 160 F.R.D. 156, 158 (D. Kan. 1995) (citing 
Hunt v. Kling Motor Co., 841 F. Supp. 1098, 1105-07 (D.Kan.1993)). 

 
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 IT IS THEREFORE ORDERED that Defendant Horizon Transport Inc.’s Motion to 
Quash Service of Process and Set Aside Entry of Default (Doc. 19) is GRANTED. Progressive 
must properly serve Horizon within 30 days of the date of this Order. 
IT IS SO ORDERED. 
 Dated this 26th day of May, 2026. 
 
 
 E R I C F . M E L G R E N 
 U N I T E D S T A T E S D I S T R I C T J U D G E 

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