Nos. 84-5601, 84-5677.United States Court of Appeals, District of Columbia Circuit.Argued September 27, 1985.
Decided August 4, 1987.
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Frank D. Magone, with whom Frank A. Conte was on the brief, for appellant.
William F. Hanrahan, with whom Catherine H. Mitchell was on the brief, for appellees.
Appeals from the United States District Court for the District of Columbia (Civil Action No. 83-03651).
Before ROBINSON and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
[1] Appellant, Nick Garin Trucking (Garin Trucking), a sole proprietorship owned by Nick Garin, challenges the District Court’s entry of, and subsequent refusal to vacate, a default judgment against it. We conclude that appellees’ attempted utilization of the new federal mail service rule failed for lack of an acknowledgment of service, and foreclosed reliance on state-law methods of service of process. We accordingly hold the default judgment void and reverse. I
[2] Appellees, trustees of the United Mine Workers of America 1974 Pension Trust,[1] instituted an action in the District Court in 1983, alleging that Garin Trucking had defaulted in the discharge of its withdrawal liability obligations[2] to the trust.[3]
The
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trustees endeavored to effect service of process on Garin Trucking by mailing the summons and a copy of the complaint, via certified mail with return receipt requested, to Nick Garin at the company’s address.[4] Enclosed with these papers were two copies of the “Notice and Acknowledgment for Service by Mail”[5] published as form 18-A in the Appendix of Forms to the Federal Civil Rules.[6] The notice informed Garin Trucking that the summons and complaint were “served pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure,”[7] and referring to an enclosed form captioned “Acknowledgment of Receipt of Summons and Complaint,”[8]
the notice warned:
[3] The trustees later received a return receipt, bearing the purported signature of Nick Garin in the space for signature of the addressee, which indicated that the summons and complaint had been delivered.[10] Neither Nick Garin nor Garin Trucking, however, ever returned the acknowledgment of service of those papers.[11] [4] Shortly thereafter, the trustees asked the clerk of the District Court to enter Garin Trucking’s default.[12] In a supporting affidavit, counsel for the trust avowed that “the complaint and summons in this action were served upon the defendant via registered or certified mail. . . .”[13] The clerk entered a default on the day the request was made.[14] [5] The trustees then moved for entry of a judgment by default.[15] At that point, GarinIf you do not complete and return the form to the sender within 20 days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law.
If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.[9]
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Trucking made its first appearance in the case[16] by filing a memorandum in opposition to entry of a default judgment.[17] Garin Trucking also submitted a motion of its own, apparently seeking to set aside the default.[18] Both filings rested on the contention that the trustees had not obtained valid service of process. Garin Trucking argued that by enclosing copies of form 18-A with the summons and complaint, the trustees had elected to attempt service pursuant to Rule 4(c)(2)(C)(ii), and that the requirements of that provision had not been satisfied because service had never been acknowledged.[19] The trustees conceded that initially they had relied on Rule 4(c)(2)(C)(ii),[20] but contended that regardless of any failure to effect proper service thereunder, the mailing satisfied alternatively[21] the requirements of Rule 4(c)(2)(C)(i), which authorizes service in accordance with state law.[22] The District Court granted the trustees’ motion for a default judgment and referred the case to a magistrate for an evidentiary hearing on damages.[23]
[6] Garin Trucking then moved, pursuant to Rule 60(b),[24] to vacate the default judgment,[25]Page 441
again contending that the judgment was improper for failure to effect service.[26] The District Court denied this motion in an order rejecting as “without merit” the proposition that an acknowledgment was “a requisite to service under Rule 4.”[27] Shortly thereafter, the court entered judgment for the trustees in the amount of $48,620.39 in accordance with the recommendation of the magistrate.[28] Garin Trucking now appeals from both orders.
II
[7] A motion to vacate a default judgment is governed by Federal Civil Rule 60(b).[29] In pertinent part, that rule provides:
[8] Garin Trucking referred the District Court to Rule 60(b) as ample support for its request that the default judgment be nullified,[31] and reasserts that position here. [9] We begin our analysis of Garin Trucking’s argument by noting potentially crucial differences between subdivisions (1) and (4) of Rule 60(b). A motion to set aside a default judgment pursuant to Rule 60(b)(1) “is committed to the discretion of the trial court”[32] and any ruling thereon will be reversed on appeal only if that discretion is abused.[33] In contrast, “[t]here is no question of discretion on the part of the court when a motion is under Rule 60(b)(4);”[34] if the judgment is void, relief is mandatory.[35] Moreover, different elements must be considered in evaluating applications under the two provisions. In reviewing motions pursuant to Rule 60(b)(1), we have directed the District Court to take three factors into account: “`whether (1) the default was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense [to the action is] meritorious.'”[36] On the other hand, “[a] party attacking a judgment as void need show no meritorious claim or defense or other equities on his behalf; he is entitled to have theOn motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . [or] (4) the judgment is void. . . .[30]
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judgment treated for what it is, a legal nullity.”[37] With these dissimilarities in mind, we turn to first consider whether the judgment at issue was void.
III
[10] Relief under Rule 60(b)(4) is not available merely because a disposition is erroneous.[38] Rather, before a judgment may be deemed void within the meaning of the rule, “it must be determined that the rendering court was powerless to enter it.”[39] Of course, an in personam judgment entered without personal jurisdiction over a defendant is void as to that defendant.[40] And, since service of process is the means by which a court asserts jurisdiction to adjudicate the rights of a party,[41] it is uniformly held that a judgment is void where the requirements for effective service have not been satisfied.[42] Thus, if Garin Trucking’s service-of-process objection is meritorious, we must reverse the default judgment herein as void.
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methods of serving process in civil actions: (1) personal service by anyone not a party to the suit who is at least eighteen years of age,[45] (2) service pursuant to state law,[46]
and (3) mail service in accordance with the requirements of subdivision (ii) of subparagraph (c)(2)(C).[47]
[14] Subparagraphs (A) and (B) authorize personal service by a nonparty[53] and by a United States marshal,[54]If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph. . . .[52]
respectively. The unmistakable meaning of this provision is that if a defendant does not return the notice of acknowledgment, the plaintiff must make a second attempt to secure service on that defendant if he is to be further pursued in the litigation.[55]
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[15] This reading is bolstered by two factors. First, Rule 4 itself specifies the sanction that may be imposed upon the defendant for failure to return an acknowledgment — payment of “the costs of personal service”[56] — without any suggestion whatsoever that the failure might also result in entry of default or default judgment.[57] Second, only this reading of subdivision (ii) is consistent with the text of the form that must be sent to defendants when federal mail service is undertaken.[58] The form warns defendants that failure to return an acknowledgment may result in liability for the cost of alternative service, again without so much as a hint that such failure could expose the defendant to default or default judgment.[59] Indeed, the form indicates plainly enough that the only course of conduct which might give rise to judgment by default is the failure to file an answer within twenty days after returning the form.[60] IV
[16] Our understanding of Rule 4(c)(2)(C)(ii) comports with a recent Fourth Circuit decision arising from facts identical to those in the case at bar. In Armco, Inc. v. Penrod-Stauffer Building Systems, Inc.,[61] a default judgment was entered after federal mail service had been attempted and the defendant failed to return an acknowledgment.[62] As in the case sub judice,
there was no subsequent effort to effect service.[63] The plaintiff argued that even if the lack of acknowledgment foreclosed reliance on Rule 4(c)(2)(C)(ii), the mailing “was nevertheless effective service under [state] law and Federal Rule 4(c)(2)(C)(i).”[64] Noting the inclusion with the suit papers of form 18-A,[65] the court emphatically rejected this contention:
[17] The Third Circuit has subsequently adopted the Armco court’s analysis to hold service initiated pursuant to the federal mail service rule completely ineffective without return of an acknowledgment.[67] [18] The trustees appear to concede that Armco’s reasoning, if applied here, would entitle Garin Trucking to reversal.[68]The attempted service in this case was unequivocally made pursuant to Federal Rule 4(c)(2)(C)(ii). When no acknowledgment was received within twenty days, that rule itself required that service be
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made upon this . . . defendant under subparagraph (A) or (B) . . . which provide for personal service. . . . Once service is attempted under Rule 4(c)(2)(C)(ii), service of process in accordance with state law, as otherwise authorized by 4(c)(2)(C)(i), is not permissible.[66]
They urge us to reject the Fourth Circuit’s analysis in favor of that utilized by the Second Circuit in Morse v. Elmira Country Club.[69] Unlike Armco, the issue in Morse was whether the plaintiff had satisfied the applicable statute of limitations, which required service of process within three years of accrual of the cause of action.[70] The plaintiff had mailed the suit papers together with two copies of form 18-A pursuant to Rule 4(c)(2)(C)(ii) within the three-year period, but the defendant refused to return an acknowledgment.[71] Service on the defendant was subsequently effectuated by personal delivery, but only after the three-year period had expired.[72] [19] Confronted by this situation, the court held that Rule 4(c)(2)(C)(ii) should not be “read to void a received-but-unacknowledged mail service. . . .”[73] The rule’s requirement of a “second service,” the court declared, was intended merely to provide additional “proof of service,”[74]
and did not render the first attempt ineffective absent acknowledgment.[75] A contrary rule, in the Morse court’s view, “would allow proper and known mail service [to] become ineffective simply because the defendant, without reason, acted like the dog in the manger.”[76] [20] One could argue that Armco and Morse are reconcilable by virtue of the latter case’s focus on statute-of-limitations issues. Because, however, the timeliness of the action in Morse
was grounded on the court’s determination that mail service had been achieved under Rule 4,[77] we doubt that the cases can be harmonized in this fashion.[78] The Morse court itself described Armco as “inapposite,”[79] seemingly viewing
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Armco as a ruling that a plaintiff must use personal service to obtain proof of a prior mail service in the absence of a returned acknowledgment, but not as holding that the acknowledgment was a prerequisite to effective mail service.[80] This supposed distinction, however, rests on a faulty understanding of the facts in Armco; as the Fourth Circuit noted, “[n]o other service of process was attempted” aside from the unacknowledged mailing.[81] Thus these decisions cannot be squared; they reflect antithetical readings of Rule 4(c)(2)(C)(ii), and we must consider each carefully before making any choice between them.
[21] The Second Circuit’s understanding of the preconditions to federal mail service appears to derive from the well-established principle that Federal Civil Rule 4 should be liberally construed in the interest of justice.[82] Accordingly, the court emphasized that “[a]bove all, strong factors of justice and equity”[83] compelled its decision. It is equally well-settled, however, that there are limits to the malleability of the rule.[84] Liberal construction “cannot be utilized as a substitute for the plain legal requirement as to the manner in which service of process can be had.”[85] The Fifth Circuit has held that Rule 4 cannot be construed to uphold use of a certified mailing defended as the “effective equivalent of federal service under Rule 4(c)(2)(C)(ii)”[86] where the requirements of that provision have not been satisfied.[87] Relying on the legislative history of the 1983 Amendments,[88] that court concluded “that the defendant’s return and acknowledgment are an essential part of the procedure” for establishing in personam jurisdiction.[89] [22] The Second Circuit also noted the congressional role in shaping the rule[90] but reasoned that “Congress would have no ground” for wanting an unacknowledged mailing to be considered ineffective service where the record clearly established delivery of the suit papers.[91] Our review of the legislative history, however, indicates Congress evinced just such a desire. Acting pursuant to the Rules Enabling Act,[92] the Supreme Court initially proposed a federal mail service rule that would have authorized a default judgment without receipt of any acknowledgment of service from the defendant if “the record contain[ed] a return receipt showing acceptance [of thePage 447
mailing] by the defendant or a return envelope showing refusal of the process by the defendant.”[93] A defendant would have been required to show that the receipt was signed or delivery was refused by an unauthorized person in order to vacate a default judgment.[94] Congress explicitly rejected this approach[95] and instead specified that service would be “complete” only if the acknowledgment was returned.[96]
Congress realized that defendants might not cooperate in this fashion, but nevertheless chose to limit the penalty imposed in such cases to imposition of the cost of personal service.[97] The principal analysis of the legislation made available prior to its consideration contains numerous indications that Congress understood that a plaintiff who unsuccessfully attempted federal mail service would be required to make a subsequent endeavor at service.[98]
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that if a plaintiff elects to utilize the federal mail service rule and the defendant does not return the acknowledgment within the designated period, the mailing cannot stand as effective service of process simply by treating it as made in accordance with a state-law method that otherwise might have been available. Finding no effective service as yet accomplished in this case, we reverse the default judgment as void[104] and remand the case for further activities and proceedings not inconsistent with this opinion.
[24] So ordered.by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph. . . .
Fed.R.Civ.P. 4(c)(2)(C)(ii). Subparagraphs (A) and (B) set forth the methods of personal service proper. Fed.R.Civ.P. 4(c)(2)(A), (B); see text infra at notes 54-55.
and accompanying text.
93 U.S.App.D.C. 369, 373, 214 F.2d 207, 210, cert. denied, 348 U.S. 821, 75 S.Ct. 33, 99 L.Ed.2d 647 (1954); Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir. 1982).
note 32, 93 U.S.App.D.C. at 372, 214 F.2d at 210. In light of “the strong policies favoring the resolution of genuine disputes on their merits,” Jackson v. Beech, supra note 32, 205 U.S.App.D.C. at 84, 636 F.2d at 835, however, we have recognized that an abuse of discretion in denying such a motion “`need not be glaring to justify reversal,'” id. (quoting Keegel v. Key West Carribbean Trading Co., 200 U.S.App.D.C. 319, 321, 627 F.2d 372, 374 (1980)) (additional citation omitted).
95 U.S.App.D.C. 365, 369, 222 F.2d 305, 309 (1955) (“`[n]o showing of merits is necessary in support of a motion to vacate a void judgment'”) (quoting Wise v. Herzog, 72 U.S.App.D.C. 335, 341, 114 F.2d 486, 494 (1940)); Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985); Hicklin v. Edwards, supra
note 29, 226 F.2d at 413.
205 U.S.App.D.C. 172, 191, 636 F.2d 1300, 1319 (1980); Attwell v. LaSalle Nat’l Bank, 607 F.2d 1157, 1159 (5th Cir. 1979), cert. denied, 445 U.S. 954, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980); Amen v. City of Dearborn, 532 F.2d 554, 557 (6th Cir. 1976).
(6th Cir. 1986); Veeck v. Commodity Enter., Inc., 487 F.2d 423, 425-426 (9th Cir. 1973). A waiver occurs when a defendant files either an answer or a preanswer motion to dismiss without challenging the sufficiency of the service. Fed.R.Civ.P. 12(b), (h)(1); see, e.g., Pila v. G.R. Leasing Rental Corp., 551 F.2d 941, 943 (1st Cir. 1977); Golden v. Cox Furniture Mfg. Co., 683 F.2d 115, 118 (5th Cir. 1982); Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1298 (5th Cir. 1985). We do not discern any contention by the trustees that Garin Trucking waived its objection to the service.
In addition to the specific requirements imposed by Rule 4, the Due Process Clause of the Fifth Amendment more generally demands “notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950); see also FTC v. Compagnie de Saint-Gobain-Pont-A-Mousson, supra note 41, 205 U.S.App.D.C. at 191, 636 F.2d at 1319; Leab v. Streit, 584 F.Supp. 748, 758-759
n. 11 (S.D.N.Y. 1984). Garin Trucking does not claim that the trustees’ attempt at service fell short of this constitutional standard.
(1982), but rather by Congress. See Federal Rules of Civil Procedure Amendments Act of 1982, Pub.L. No. 97-462, 96 Stat. 2527. See generally Walker, The 1983 Amendments to Federal Rule of Civil Procedure 4 — Process, Jurisdiction, and Eri Principles Revisited, 19 Wake Forest L.Rev. 957, 959-961 (1983). These changes became effective on February 26, 1983, and thus are referred to as the 1983 amendments. See 2 J. Moore, J. Lucas, H. Fink C. Thompson, supra, ¶ 408[1], at 4-95 to 4-96.
(9th Cir. 1985) (Arizona law); Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 147 (10th Cir. 1985) (Oklahoma law); Fairchild Co. v. C.T. Main Constr., Inc., 624 F.Supp. 903 (E.D.Pa. 1985) (Pennsylvania law). State-law methods, like the federal mail service rule, may be utilized only with respect to a defendant who is “an individual other than an infant or an incompetent person,” a domestic or foreign corporation, or a partnership or other unincorporated association “which is subject to suit under a common name.” Fed.R.Civ.P. 4(c)(2)(C), 4(d)(1), (3).
In addition to the three primary methods, Rule 4 authorizes service by a United States marshal or deputy marshal in certain limited instances and service by a person specially appointed by the court, see Fed.R.Civ.P. 4(c)(1), (2)(B). These methods are seldom used today. See 2 J. Moore, J. Lucas, H. Fink C. Thompson, supra note 44, ¶ 4.08[2], [5].
note 55, 101 F.R.D. at 96 (award of costs called “only means for enforcing” federal mail service rule); Reid v. Accutome, Inc.,
Civ. No. 85-3592 (E.D.Pa. Oct. 30, 1985) (LEXIS, Genfed Library, Dist file) (“[f]ailure to return an acknowledgment of service received by mail pursuant to Rule 4(c)(2)(C)(ii), without good cause, may result in the assessment of the cost of the alternate means of service against the defendant, but such failure is not grounds for entry of a default judgment”) (citation omitted).
at 1089 (footnote omitted).
is clearly distinguishable from our ruling herein.
to deny a motion to dismiss for insufficient service of process where the defendant did not acknowledge an attempt at federal mail service in a case presenting no statute-of-limitations issue. See Deshmukh v. Cook, 630 F.Supp. 956, 958-959 (S.D.N.Y. 1986); see also Humana, Inc. v. Jacobson, supra note 55, 804 F.2d at 1393 (applying Morse court’s analysis to conclude that a subsequent mail service in accordance with state law was valid despite plaintiff’s initial reliance on federal mail service).
note 55, 733 F.2d at 1088; see also id. (“[t]here was no subsequent attempt to effect service of process by any other means”).
While the rule, by its terms, clearly calls for personal service following a failed attempt to utilize federal mail service, see note 55 supra, we confess to some uncertainty as to why Congress desired to foreclose otherwise permissible methods of service merely because the plaintiff initially elected to use the federal rule. See Humana, Inc. v. Jacobson, supra
note 55, 804 F.2d at 1393 (Congress did not intend to “create unfairness for plaintiffs by eliminating an otherwise permissible method of service”). We need not address this question, since the trustees did not subsequently attempt another service after their inefficacious invocation of the federal mail service rule.
note 55, 733 F.2d at 1089. Although we have questioned the suggestion that the Second Circuit’s decision in Morse v. Elmira Country Club, supra note 69, can be reconciled with Armco on the ground that the service issue in Morse arose in the context of an otherwise expired limitation period, see text supra at notes 77-78, the case at bar as framed by the parties presents no issue under a statute of limitations. We thus need not decide whether we would accept the Morse reasoning if confronted by a plaintiff whose suit would otherwise be permanently barred.