Espinoza v. Humphries

Case: 21-11202 Document: 00516426454 Page: 1 Date Filed: 08/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 10, 2022
No. 21-11202
Lyle W. Cayce
Clerk
Edmundo Espinoza, an individual,
Plaintiff—Appellee,
versus
Steven Eugene Humphries, an individual, also known as
Steve Humphries, also known as Steven H. Humphries,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:19-CV-1805
Before Smith, Clement, and Haynes, Circuit Judges.
Jerry E. Smith, Circuit Judge:
After a defendant fails to appear, the court enters a default. The
defendant then objects, citing the plaintiff’s failure to perfect service. Must
the court set aside the entry of default and vacate the default judgment?
Because the answer is yes, we vacate and remand.
Three years ago, Edmundo Espinoza sued Steven Humphries in a
Texas federal court to recover unpaid legal fees. Espinoza tried many times
to serve the summons and complaint on Humphries at his residence in
Escambia County, Florida, but Humphries evaded personal service for
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No. 21-11202
months. So Espinoza switched gears: The federal rules allow service under
the law of the state “where service is made,” Fed. R. Civ. P. 4(e)(1), so
Espinoza tried serving Humphries by publication under Florida law.
But that publication notice was defective. Had Espinoza sued Hum-
phries in a Florida state court, he would have had to follow Florida’s venue
statute, which would confine him to suing in Escambia County, where Hum-
phries resided. See Fla. Stat. § 47.011. And to serve someone by publica-
tion in Florida, a plaintiff must publish his notice of suit “in the county where
the court is located.” § 49.10(1)(a). Espinoza published his notice not in
Escambia County, but in Santa Rosa County. So it did not comply with the
statute. “[A]nd absent strict compliance with the statute, service is improper
and any resulting proceeding or judgment is void.” Castro v. Charter Club,
Inc., 114 So. 3d 1055, 1059 (Fla. Dist. Ct. App. 2013); see also Demir v.
Schollmeier, 273 So. 3d 59, 61 (Fla. Dist. Ct. App. 2018).
Noting that defect, Humphries moved to vacate his default. Fed. R.
Civ. P. 55(c). But the district court declined and soon entered a default
judgment. That was an abuse of discretion. Lacy v. Sitel Corp., 227 F.3d 290,
292 (5th Cir. 2000). A defendant cannot default if he had no duty to answer
the suit—and he need not answer until “service has been perfected.” Jenkens
& Gilchrist v. Groia & Co., 542 F.3d 114, 123 n.6 (5th Cir. 2008). Likewise, “a
district court must set aside a default judgment as void if it determines that it
lacked personal jurisdiction over the defendant because of defective service
of process.” Harper Macleod Solics. v. Keaty & Keaty, 260 F.3d 389, 393 (5th
Cir. 2001) (cleaned up). So too here.
Nonetheless, the district court declined to consider Humphries’s
objection to improper service. That was error. Because Humphries was
never properly served, he showed good cause to set aside his default and the
default judgment that followed. Fed. R. Civ. P. 55(c). So we vacate them
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No. 21-11202
both. On remand, the district court, in its discretion, may consider whether
to extend the time limit for service for good cause on account of Humphries’s
flagrant evasion of service. Fed. R. Civ. P. 4(m); Buescher v. First United
Bank & Tr. (In re Buescher), 783 F.3d 302, 307 (5th Cir. 2015).
The judgment is VACATED and REMANDED.
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