United States v. Rodriguez ( 1993 )


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  • USCA1 Opinion









    December 29, 1993 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
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    No. 93-1303




    UNITED STATES,

    Appellee,

    v.

    LUZ AIDA RODRIGUEZ, a/k/a LUZ AIDA RODRIGUEZ RIVERA,

    Defendant, Appellant.


    __________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO


    [Hon. Jose Antonio Fuste, U.S. District Judge]
    ___________________

    ___________________

    Before

    Torruella, Boudin and Stahl,
    Circuit Judges.
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    ___________________

    Susana Cortina de Cardenas, on brief for appellant.
    __________________________
    Guillermo Gil, United States Attorney, and Jose M. Pizarro-
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    Zayas, Assistant United States Attorney, on brief for appellee.
    _____



    __________________

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    Per Curiam. Appellant Luz Aida Rodriguez appeals a
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    memorandum order by the United States District Court for the

    District of Puerto Rico denying her motion for relief from

    judgment pursuant to Fed. R. Civ. P. 60(b)(4) & (6). The

    gravamen of appellant's argument is that the judgment was

    void because the court lacked jurisdiction due to inadequate

    service of process. We affirm.

    Background
    Background

    In 1971, the Farmers Home Administration [FHA] granted

    appellant and her then husband a mortgage loan secured by a

    lien over appellant's property in Can vanas, Puerto Rico.

    Appellant assumed the entire obligation after being divorced

    from her husband in 1972. In September 1991, after appellant

    had fallen behind in the installment payments, the United

    States, on behalf of the FHA, filed a judicial action in

    federal district court for collection of money and

    foreclosure of the mortgage. On September 24, 1991, a United

    States Deputy Marshall personally delivered to appellant's

    residence a copy of the summons and the complaint in this

    case. The Deputy Marshall testified that the papers were

    accepted by appellant's son.

    Appellant failed to appear and a default judgment was

    entered on November 15, 1991. An order for execution of

    judgment was entered on February 13, 1992, and a writ of

    execution on February 24. A notice of sale was published on



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    April 10, 1992, and a public sale was held on June 10. The

    property was awarded to the highest bidder and the sale was

    confirmed by the district court on September 9, 1992.

    On September 20, 1992, appellant moved in the district

    court for the case to be dismissed for lack of proper

    service. According to affidavits filed with the motion,

    appellant attested that she had not been served with a copy

    of the complaint and that she had lived alone for the past

    four years. Her son further attested that he had never been

    served with a copy of the summons or complaint. Hearings

    were held in December 1992 and January 1993 at which oral and

    documentary evidence was presented. Based on this evidence,

    the court found that the Deputy Marshall had served the

    appellant, through her son, at the appellant's dwelling place

    in accord with Fed. R. Civ. P. 4(d)(1). The court found the

    contrary attestations of appellant and her son to be not

    credible. As a consequence, the court denied the motion for

    relief from judgment.

    Discussion
    Discussion

    Appellant asserts that the district court erred in

    finding that process had been properly served upon her in

    this case. We review the court's factual findings for clear

    error. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972
    _______________ ___________________________

    F.2d 453, 457 (1st Cir. 1992). "[W]hen factual findings are

    based on determinations regarding the credibility of



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    witnesses [Fed. R. Civ. P.] 52 demands that the appeal court

    accord even greater deference to the trial court's findings."

    Rodriguez-Morales v. Veterans Admin., 931 F.2d 980, 982 (1st
    _________________ ______________

    Cir. 1991) (citing cases). We usually review a court's

    denial of a Rule 60(b) motion only for an abuse of

    discretion. Cotto v. United States, 993 F.2d 274, 277 (1st
    _____ _____________

    Cir. 1993). However, "[a] default judgment entered by a

    court which lacks jurisdiction over the person of the

    defendant is void," Precision Etchings & Findings, Inc. v.
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    LGP Gem, Ltd., 953 F.2d 21, 23 (1st Cir. 1992), and "[i]f the
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    judgment is void, the district court has no discretion but to

    set aside the entry of the default judgment," Echevarria-
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    Gonzales v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988).
    ________ _______________

    Pursuant to Fed. R. Civ. P. 4(d)(1) service of process

    may be made

    by leaving copies [of the summons and complaint] at

    the individual's dwelling house or usual place of

    abode with some person of suitable age and

    discretion then residing therein

    At the hearing on the Rule 60 motion, the Deputy Marshall

    testified that he had served a copy of the summons and the

    complaint upon appellant's son at her dwelling. Appellant's

    son denied having been served. Furthermore, the Deputy

    Marshall indicated that the person whom he served seemed to

    be about fifteen or sixteen years old. Appellant's son was



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    at the time twenty four. The district found appellant's

    son's denial of having been served not credible. It also

    found that the discrepancy in ages was explicable by the fact

    that appellant's son looked younger than his age. In light

    of the deference owed to the district court in making

    credibility determinations, we find no clear error in the

    court's finding that process was served on the son at

    appellant's house.

    Appellant also contends that the son upon whom process

    was allegedly served did not reside in appellant's house and

    thus was not a proper recipient of process under Rule

    4(d)(1). The only evidence of appellant's son residing at

    her house was the testimony of the Deputy Marshall. His

    testimony shows that the person whom he served at appellant's

    dwelling identified himself as appellant's son and that from

    this the Deputy Marshall assumed that he resided therein.1


    ____________________

    1. The following evidence was presented at the hearing:

    Counsel: How do you know [the person served] was her
    son?

    Marshall: He told me he was Mrs. Lu[z] Ida Rodriguez's
    son.

    Counsel: He told you. Did he tell you he lived there?

    Marshall: Yes, he did.

    Counsel: How did he say that?

    Marshall: Well, I was looking for Mrs. Luz Ida Rodriguez
    at that address and the boy happened to be there, and he
    said, "Yes, it is my mother." That is the way I served the

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    Appellant's son, on the other hand, denied having resided at

    his mother's house when process was allegedly served. He

    testified that at the time in question he was living with his

    wife and chidren at the home of his wife's parents. While

    the district court made no specific finding that the son

    resided in appellant's dwelling, such a finding was implicit

    in his decision. See Home-Stake Production Co, C.A. v. Talon
    ___ _____________________________ _____

    Petroleum, 907 F.2d 1012, 1017 (10th Cir. 1990).
    _________

    Where, as the court supportably found in the instant

    case, a defendant has received actual notice of an action,

    service of process requirements are to be "broadly

    interpreted," see, e.g., Nowell v. Nowell, 384 F.2d 951 (5th
    ___ ___ ______ ______

    Cir. 1967), cert. denied, 390 U.S. 956 (1968); Adams v.
    ____ ______ _____

    School Board, 53 F.R.D. 267, 268 (D.Pa. 1971), and
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    "substantial compliance" with the requirements suffices, see
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    Precision Etchings, 953 F.2d at 24 (citing cases). In cases
    __________________

    where actual notice has been received, service on a person

    linked by a "substantial nexus" to the defendant has been



    ____________________

    paper, through him.

    Counsel: I don't understand[. T]he boy happened to be
    there? What does that mean?

    Marshall: The boy was there. In the house.

    Counsel: And how do you know the . . . boy lived in the
    house?

    Marshall: Because he told me that [he] was Mrs.
    Rodriguez' son. And that was at that address.

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    held to meet the requirements of Rule 4(d)(1). See Nowell,
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    384 F.2d at 953 (service on defendant's landlady who resided

    in separate apartment building from defendant found adequate

    where "substantial nexus" existed between landlady and

    defendant); see also M. Lowenstein & Sons, Inc. v. Austin,
    ___ ____ __________________________ ______

    430 F.Supp. 844, 845 (S.D.N.Y. 1977) (daughter who was

    visiting home from school and stayed overnight was "then

    residing" at residence for purposes of Rule 4(d)(1)). In the

    instant case, the record supportably shows that appellant's

    son answered the door at her house when she was not at home

    and was therefore a trusted member of the household. In

    light of the "substantial nexus" between appellant and her

    son, we find no clear error in the court's implicit finding

    that appellant's son was "residing" in her house for the

    purposes of Rule 4(d)(1).2 The court did not err in its

    denial of the Rule 60(b)(4) motion.




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    2. A similar result was reached by the Supreme Court of
    Rhode Island in Plushner v. Mills, 429 A.2d 444 (R.I. 1981).
    ________ _____
    In Plushner defendant's daughter was found to have "resided"
    ________
    in defendant's household for purposes of receiving service of
    process even though she maintained a separate residence. The
    court found that she was a "trusted member of defendant's
    household and that a substantial nexus existed between her
    and defendant." Id. at 446. Although the court in Plushner
    __ ________
    was interpreting the Rhode Island rule for service of
    process, that rule, in relevant part, is almost identical to
    Fed. R. Civ. P. 4(d)(1) and, in interpreting it, the Rhode
    Island courts "look for guidance in the precedents of the
    federal courts, upon whose rules those of [Rhode Island] are
    closely patterned." Id. at 445 (quoting Nocera v. Lembo, 298
    __ ______ _____
    A.2d 800, 803 (R.I. 1973)).

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    Appellant also contends that the court erred in

    receiving and considering evidence on issues other than the

    adequacy of the service of process at the hearing. She

    further contends that her right to due process was violated

    by the consideration of such evidence since she had been

    unable to conduct adequate discovery before the hearing.

    In advance of the hearing, the court had ordered the

    government to produce evidence of the "amounts due and owing

    to the government in this case" and had instructed the

    defendant to bring in evidence setting forth her

    understanding of the amounts due. The record indicates that

    the court was aware that the issue of the amount owed was not

    before the court but considered the information as

    "background" to the Rule 60(b)(4) motion. Moreover, this

    background evidence was relevant to the court's finding that

    appellant had actual notice of the foreclosure action.3 We

    find no abuse of discretion in the court's consideration of

    this "background" evidence. Furthermore, even though

    appellant had a limited time in which to prepare her response

    to the government's evidence of the amount due, we do not

    find that she suffered sufficient prejudice to implicate the

    federal due process clause.


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    3. For example, the government presented evidence that
    appellant attempted to make a partial payment to the FHA
    eight days after the summons was served and that, when this
    payment was returned, appellant was personally informed of
    the existence of the proceedings against her.

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    The denial of the motion to vacate the judgment is

    affirmed.
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