Kelly, Sutter, Mount & Kendrick, P.C. v. Alpert

United States Court of Appeals
Fifth Circuit
F I L E D
July 9, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-20938
Summary Calendar
KELLY, SUTTER, MOUNT & KENDRICK, P.C., doing business as
Kelly, Sutter & Kendrick, P.C.; J DOUGLAS SUTTER,
Plaintiffs - Appellees,
v.
ROBERT ALPERT,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Texas, Houston Division
USDC No. 4:05-CV-2213
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
The United States District Court for the Southern District of
Texas entered default judgment against Appellant, Robert Alpert,
after he failed to respond to a complaint filed against him. Alpert
moved to set aside the default judgment solely under Rule 60(b)(4),
claiming that he had not been validly served with process because
the person who received the summons and complaint, his housekeeper,
did not live at his residence at the time of service. The district
court held an evidentiary hearing and determined that the testimony
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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of Alpert and his housekeeper were not credible and that the
housekeeper was residing at the house at the time of service. The
court concluded that service of process was adequate. Alpert
subsequently filed a motion for new trial and a second motion to
set aside the default judgment, this time alleging excusable
neglect, which were both denied by the district court. Alpert
appeals to this Court.
Whether there was sufficient service of process upon a
defendant is an issue of law that this court reviews de novo. Maiz
v. Virani, 311 F.3d 334, 338, 340 (5th Cir. 2002). “We review the
district court's findings of fact underlying its disposition of a
rule 60(b)(4) motion for clear error.” Goetz v. Synthesys
Technologies, Inc., 415 F.3d 481, 483 (5th Cir. 2005). The issue of
whether or not service was proper in this case turns on the factual
determination of whether Alpert’s housekeeper was residing at his
home at the time of service. After review of the record, we do not
find that the court clearly erred in determining that Alpert’s
housekeeper was a “person of suitable age and discretion then
residing” in Alpert’s home, thus satisfying the requirements for
service of process under Rule 4(e)(2). In addition, for the reasons
stated in the district court’s Memorandum and Opinion entered on
October 25, 2006, we agree that Alpert has failed to make the
requisite showing that the judgment should be set aside under
either Rule 59(e) or 60(b)(1).
AFFIRMED.
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