USCA1 Opinion
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No. 90-1798
No. 90-1798
PRECISION ETCHINGS & FINDINGS, INC.,
PRECISION ETCHINGS & FINDINGS, INC.,
Plaintiff, Appellee,
Plaintiff, Appellee,
v.
v.
LGP GEM, LTD.,
LGP GEM, LTD.,
Defendant, Appellee,
Defendant, Appellee,
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MAURICE C. FEIGER,
MAURICE C. FEIGER,
Defendant, Appellant.
Defendant, Appellant.
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No. 91-1277
No. 91-1277
PRECISION ETCHINGS & FINDINGS, INC.,
PRECISION ETCHINGS & FINDINGS, INC.,
Plaintiff, Appellee,
Plaintiff, Appellee,
v.
v.
LGP GEM, LTD.,
LGP GEM, LTD.,
Defendant, Appellee,
Defendant, Appellee,
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MAURICE C. FEIGER,
MAURICE C. FEIGER,
Defendant, Appellant.
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Before
Torruella, Circuit Judge,
Torruella, Circuit Judge,
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Timbers, Senior Circuit Judge,*
Timbers, Senior Circuit Judge,*
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and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
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Harold E. Krause for appellant, third-party defendant.
Harold E. Krause for appellant, third-party defendant.
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Richard D. Boriskin with whom Markoff & Boriskin was on brief for
Richard D. Boriskin with whom Markoff & Boriskin was on brief for
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appellee, third-party plaintiff.
appellee, third-party plaintiff.
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*Of the Second Circuit, sitting by designation.
*Of the Second Circuit, sitting by designation.
CYR, Circuit Judge. This appeal concerns the validity of a
CYR, Circuit Judge.
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default judgment entered by the district court notwithstanding a
defect in the service of process which allegedly deprived the court of
personal jurisdiction over the defendant-appellant. Precision Etch-
ings & Findings, Inc. brought the present action in the United States
District Court for the District of Rhode Island against LGP Gem, Ltd.
("LGP"). LGP filed a third party complaint against defendant-appel-
lant Maurice Feiger. The third party complaint and summons were
addressed to Feiger by certified mail, return receipt requested, at a
Brooklyn, New York, street address, rather than to the particular
apartment in which Feiger resided. The return receipt indicates that
service was made upon an occupant of another apartment in the same
apartment building. Default was entered against Feiger in April 1990,
after he failed to answer LGP's complaint.
On June 4, 1990, Feiger's New York counsel filed a motion to
vacate the default, alleging insufficient service of process. Al-
though New York counsel attempted to appear in behalf of Feiger before
the United States Magistrate Judge at the June 4 hearing on LGP's
claim for damages, he was not permitted to do so because Feiger had
not retained local counsel as required by Rhode Island Local Rule
5(b). Without addressing Feiger's motion to set aside the default,
the magistrate judge made proposed findings of fact and recommended
the entry of a default judgment against Feiger. The district court
adopted the proposed findings and the disposition recommended by the
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magistrate judge. Neither the magistrate judge nor the district court
addressed Feiger's June 4 motion to set aside the default on the
ground of insufficient service of process.
On July 26, 1990, Feiger moved to vacate the default judgment,
once again on the ground that he had never been properly served with
process. Following a hearing, the motion to vacate was denied by the
magistrate judge on the ground that Feiger "had sufficient and timely
knowledge of the Third Party Complaint filed against him." Feiger
promptly filed objections to the magistrate judge's recommended
findings and disposition submitted by the magistrate judge. See 28
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U.S.C. 636(b) (1)(B).
The district court determined that Feiger had actual notice of
the third party complaint, notwithstanding the fact that the return
receipt evidencing service of the summons and third party complaint
appeared to have been signed by an occupant of another apartment in
the three-apartment building where Feiger resided. The district court
accepted the magistrate judge's recommendation and denied the motion
to vacate the default judgment, apparently on the basis that actual
notice provided a sufficient basis for the exercise of personal
jurisdiction over Feiger.* Finally, the district court denied Feiger-
's postjudgment motion to set aside the default judgment and Feiger
appealed.
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*Neither the magistrate judge nor the district court discussed the
*Neither the magistrate judge nor the district court discussed the
legal requirements of service of process.
legal requirements of service of process.
4
A default judgment entered by a court which lacks jurisdiction
over the person of the defendant is void, General Contracting &
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Trading Co. v. Interpole, Inc., 940 F.2d 20, 21 n.1 (1st Cir. 1991),
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and may be set aside at any time pursuant to Fed. R. Civ. P. 60(b)(4).
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See generally 11 C. Wright & A. Miller, Federal Practice & Procedure,
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2862 (1973). Personal jurisdiction is established either by proper
service of process, see, e.g., Jardines Bacata, Ltd. v. Diaz-Marquez,
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878 F.2d 1555, 1559 (1st Cir. 1989) ("[i]n the ordinary course, the
district court acquires jurisdiction over a defendant only by service
of process"), or by the defendant's waiver of any defect in the
service of process, see, e.g., General Contracting & Trading Co., 940
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F.2d at 22 (personal jurisdiction may be acquired by consent or
implied from conduct).
LGP elected to attempt service of process upon Feiger pursuant to
Fed. R. Civ. P. 4(c)(2)(c), in accordance with "the law of the State
in which the district court is held." In this case, Rhode Island
District Court Rule of Civil Procedure 4(d)(1), which is based on Fed.
R. Civ. P. 4(d)(1), see Plushner v. Mills, 429 A.2d 444, 445 (R.I.
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1981), required service:
[u]pon an individual other than an incompetent person by
delivering a copy of the summons and complaint to him person-
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ally or by leaving copies thereof at his dwelling house or
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usual place of abode with some person of suitable age and
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discretion then residing therein . . .
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Dist. R. Civ. P. 4(d)(1) (emphasis added).
5
The Rhode Island service of process requirements were not met in
the instant case since the return receipt indicates that the summons
and complaint were neither delivered to Feiger "personally" nor "at
his dwelling house or usual place of abode." Id. Instead, as the
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district court noted, the return receipt indicates, at best, that the
summons and complaint were delivered to an occupant of a different
apartment at the same street address where Feiger's apartment is
located. LGP contends, nonetheless, that actual notice of the third
party action was sufficient under Rhode Island law to support the
district court's exercise of personal jurisdiction over Feiger. The
precise issue presented appears not to have been addressed by the
Rhode Island courts.
The Supreme Court of Rhode Island has "emphasized the principle
that legislative enactments relating to service of process are to be
followed and construed strictly, since jurisdiction of the court over
the person of the defendant is dependent upon proper service having
been made." Plushner, 429 A.2d at 445-446, quoting Barthlein v.
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Ellis, 314 A.2d 426, 427 (R.I. 1974). "In construing [service of
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process] rules it has been [the Rhode Island] practice to look for
guidance in the precedents of the federal courts, upon whose rules
those of the [Rhode Island courts] are closely patterned." Id. at
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446, quoting Nocera v. Lembo, 298 A.2d 800, 803 (R.I. 1973). When the
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defendant has received actual notice of the action, the Rhode Island
courts, in conformity with the federal practice, have determined that
service of process requirements are to be "broadly interpreted," id.
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6
(citing federal cases), provided the interpretation is "a natural
rather than an artificial one. . . ." Id. quoting Blackhawk Heating &
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Plumbing Co. v. Turner, 50 F.R.D. 144, 145 (D. Ariz. 1970).
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Neither federal precedent nor Rhode Island caselaw supports LGP's
contention that actual notice of the filing of the third party com-
plaint was sufficient to confer personal jurisdiction in these circum-
stances. The federal courts have made it abundantly clear that actual
notice itself, without more, is insufficient to satisfy the require-
ments of Fed. R. Civ. P. 4(d)(1). See, e.g., Echevarria-Gonzalez v.
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Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988) ("[a]ctual notice and
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simply naming the person in the caption of the complaint is insuffi-
cient to subject a defendant to the jurisdiction of the district
court"); see also Mid-Continent Wood Products, Inc. v. Harris, 936
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F.2d 297, 301 (7th Cir. 1991) (citing cases). Although "minor" formal
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defects are excusable provided actual notice has been accomplished,
see, e.g., Sanderford v. Prudential Ins. Co., 902 F.2d 897, 899 (11th
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Cir. 1990) (district court not deprived of in personam jurisdiction by
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failure to include return date for responsive pleading in duly served
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summons), the rule nevertheless must be accorded at least substantial
compliance, see, e.g., Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th
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Cir. 1987) (requiring "substantial compliance" with rule 4(d)(1));
Zuckerman v. McCulley, 7 F.R.D. 739, 741 (E. D. Mo. 1947) ("[a]s we
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read the cases, substantial compliance with the Rules prescribing
manner of service is required") (emphasis added) (service on janitor
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of building in which defendant resided not substantial compliance).
7
It has been held directly that delivery of process to a different
apartment in the same building is not sufficient service. Di Leo v.
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Shin Shu, 30 F.R.D. 56 (S.D.N.Y. 1961) (service on daughter of defen-
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dant who resided in separate apartment not sufficient).
Neither the cases cited by LGP, nor any we have discovered,
indicate that actual notice would suffice to cure the defect in the
manner of service effected on Feiger. In Plushner v. Mills, 429 A.2d
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at 446, the Rhode Island Supreme Court found that "actual notice"
constituted substantial compliance where service of process was
effected by delivery to defendant's daughter while she was at the
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defendant's residence, even though the daughter maintained a separate
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residence at the time. The court noted that the daughter possessed a
key to the defendant's residence and had been placed in charge of the
dwelling during her father's absence. Id. Since the court found that
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the daughter, therefore, was a "trusted member of defendant's house-
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hold and that a substantial nexus existed between her and the defen-
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dant," it decided that she "could be considered to be 'residing
therein' under a broad interpretation of Rule 4(d)(1), and such an
interpretation is allowed when defendant receives actual notice." Id.
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(emphasis added). The undeveloped record in the instant case, on the
other hand, simply cannot support a similarly "broad interpretation,"
since no evidence was presented that the person to whom process was
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delivered was a member of Feiger's household, his landlord, or a
person having any "substantial connection" with him.**
Federal precedent and Rhode Island caselaw indicate only that the
specific rules governing the precise manner of effecting service of
process are to be given "broad interpretation" when the defendant has
received "actual notice." Neither source of authority suggests that
"actual notice" itself suffices, absent substantial compliance with
the manner of service prescribed by rule. The present record does not
enable a determination that there was substantial compliance with rule
4(d)(1). Therefore, unless Feiger waived any defect in the service of
process, the case must be remanded for further factfinding bearing on
the issue of substantial compliance.
Unlike the absence of subject matter jurisdiction, the defense of
lack of personal jurisdiction may be waived by express submission,
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**Moreover, the Plushner court relied in part on a federal case,
**Moreover, the Plushner court relied in part on a federal case,
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Nowell v. Nowell, 384 F.2d 951 (5th Cir. 1967), cert. denied, 390 U.S.
Nowell v. Nowell, 384 F.2d 951 (5th Cir. 1967), cert. denied, 390 U.S.
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956 (1968), which held that the federal service of process rule was
956 (1968), which held that the federal service of process rule was
satisfied by service upon the defendant's landlady, due to the "sub-
satisfied by service upon the defendant's landlady, due to the "sub-
stantial nexus" between landlord and tenant. In Plushner, the Rhode
stantial nexus" between landlord and tenant. In Plushner, the Rhode
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Island Supreme Court explicitly called attention to the fact that
Island Supreme Court explicitly called attention to the fact that
Nowell had distinguished between service upon the landlord and "ser-
Nowell had distinguished between service upon the landlord and "ser-
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vice upon a neighboring tenant . . . [because] the substantial nexus
vice upon a neighboring tenant . . . [because] the substantial nexus
that exists between tenant and landlord does not exist between tenants
that exists between tenant and landlord does not exist between tenants
themselves." Plushner, 429 A.2d at 446, quoting Nowell, 384 F.2d at
themselves." Plushner, 429 A.2d at 446, quoting Nowell, 384 F.2d at
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953.
953.
Similarly, Lavey v. Lavey, 551 A.2d 692 (R.I. 1988), another case
Similarly, Lavey v. Lavey, 551 A.2d 692 (R.I. 1988), another case
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in which the defendant was found to have had "actual notice" of the
in which the defendant was found to have had "actual notice" of the
lawsuit, provides no support for LGP's position. The Lavey court
lawsuit, provides no support for LGP's position. The Lavey court
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found that a residence, at which the defendant had dinner daily and
found that a residence, at which the defendant had dinner daily and
occasionally showered, watched television and picked up mail, could be
occasionally showered, watched television and picked up mail, could be
included within a broad interpretation of "dwelling house or . . .
included within a broad interpretation of "dwelling house or . . .
usual place of abode. . . ." Id. at 694-695. The present record is
usual place of abode. . . ." Id. at 694-695. The present record is
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insufficiently developed to support such a finding.
insufficiently developed to support such a finding.
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conduct, or failure to assert the defense. See Neirbo Co. v. Bethle-
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hem Shipbuilding Corp., 308 U.S. 165, 168 (1939); General Contracting
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& Trading Co., 940 F.2d at 22; Marcial Ucin, S.A. v. SS Galicia, 723
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F.2d 994, 996 (1st Cir. 1983). As Feiger assiduously attempted to
assert the defense before the district court, we find no waiver.
Feiger first raised the defense by motion on June 4, 1990, the
day of the scheduled hearing on LGP's claim for damages, thereby
precluding waiver under Fed. R. Civ. P. 12(h)(1). See Roque v. United
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States, 857 F.2d 20, 21 (1st Cir. 1988); Glater v. Eli Lilly & Co.,
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712 F.2d 735, 738 (1st Cir. 1983). At no time did Feiger expressly
submit to the exercise of jurisdiction by the district court. More-
over, Feiger's conduct did not constitute participation in, or encour-
agement of, the district court proceedings so as to amount to waiver
by conduct. See United States use of Combustion Systems Sales, Inc.
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v. Eastern Metal Products & Fabricators, Inc., 112 F.R.D. 685, 687
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(M.D.N.C. 1986) (collecting cases and concluding that though cases
present "markedly different situations, [they] have the common factors
of dilatoriness and participation in, or encouragement of, judicial
proceedings"); see also General Contracting & Trading Co., 940 F.2d at
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22 (collecting cases). Feiger did not participate in any hear-
ing,*** see, e.g., Wyrough & Loser, Inc. v. Pelmor Laboratories,
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***Feiger's unsuccessful attempt to participate in the June 4 hearing
***Feiger's unsuccessful attempt to participate in the June 4 hearing
on LGP's claim for damages was not a waiver, since New York counsel
on LGP's claim for damages was not a waiver, since New York counsel
stated explicitly that he intended to challenge the sufficiency of
stated explicitly that he intended to challenge the sufficiency of
service of process at the hearing. See Marcial Ucin, 723 F.2d at 997
service of process at the hearing. See Marcial Ucin, 723 F.2d at 997
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("general appearance by a defendant does not constitute a waiver of
("general appearance by a defendant does not constitute a waiver of
the defense of lack of jurisdiction over the person").
the defense of lack of jurisdiction over the person").
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Inc., 376 F.2d 543, 547 (3d Cir. 1967) (finding waiver where defendant
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attended preliminary injunction hearing), seek affirmative relief,
see, e.g., General Contracting & Trading Co., 940 F.2d at 23-24
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(bringing independent action arising out of same transactional core
constitutes implied submission), or lend an appearance of submission
through extended inaction, see, e.g., Marcial Ucin, 723 F.2d at 997
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(waiver found after defendant filed appearance, attended depositions,
and waited four years before raising defense).
Feiger justly cannot be deemed to have submitted to the jurisdic-
tion of the district court by filing objections to the magistrate
judge's proposed findings and recommended disposition as was required
by 28 U.S.C. 636(b)(1) and Fed. R. Civ. P. 72(b) in order to pre-
serve his right to de novo review of the recommended disposition. The
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magistrate judge did not address Feiger's specific challenge to the
sufficiency of service of process, nor determine the manner of service
sufficient under Rhode Island law. Thus, Feiger surely would have
been found to have waived the right to de novo review by the district
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court had he not objected to the recommended disposition as required
by section 636(b)(1) and rule 72(b). See Park Motor Mart, Inc. v.
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Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). In these circumstances,
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Feiger's objections impliedly reaffirmed his consistent opposition to
the district court's exercise of personal jurisdiction before the
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magistrate judge.**** It would represent a distortion of the waiv-
er doctrine to construe Feiger's objections to the proposed findings
and recommended disposition as a waiver of the right to contest
personal jurisdiction, especially since Feiger vigorously pursued the
service of process issue before the magistrate judge from the outset
and the magistrate judge made no specific finding that the manner of
service effected on Feiger was sufficient. Rather, by raising the
service of process issue in the June 4 and July 26 motions filed with
the magistrate judge and again in his postjudgment motion to the
district court under rule 60(b)(4), Feiger promptly, plainly and
consistently preserved his personal jurisdiction defense based on
defective service of process.
The default judgment is vacated and the case is remanded to the
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district court for further proceedings consistent with this opinion;
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costs to appellant.
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****When Feiger filed objections to the magistrate judge's proposed
****When Feiger filed objections to the magistrate judge's proposed
findings and recommended disposition, he requested that the district
findings and recommended disposition, he requested that the district
court "conduct a new hearing with all parties present and represented
court "conduct a new hearing with all parties present and represented
so that the facts in this very complicated commercial transaction can
so that the facts in this very complicated commercial transaction can
be brought before the Court and an appropriate decision made." In the
be brought before the Court and an appropriate decision made." In the
circumstances of the present case, Feiger's statement did not "un-
circumstances of the present case, Feiger's statement did not "un-
equivocally show an intention to submit to the district court's
equivocally show an intention to submit to the district court's
jurisdiction." Jardines Bacata, Ltd., 878 F.2d at 1559 (waiver of
jurisdiction." Jardines Bacata, Ltd., 878 F.2d at 1559 (waiver of
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right to challenge personal jurisdiction may be found only if there is
right to challenge personal jurisdiction may be found only if there is
no other reasonable explanation of the conduct). On June 4, Feiger
no other reasonable explanation of the conduct). On June 4, Feiger
had challenged the sufficiency of service of process; he reasserted
had challenged the sufficiency of service of process; he reasserted
the same defense on July 26. There was no unequivocal showing of an
the same defense on July 26. There was no unequivocal showing of an
intention to submit to the jurisdiction of the district court.
intention to submit to the jurisdiction of the district court.
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