German American Financial Advisors & Trust Co. Ex Rel. Woodward v. Rigsby

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 22, 2015 *
Decided September 23, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-1612
GERMAN AMERICAN FINANCIAL Appeal from the
ADVISORS AND TRUST COMPANY United States District Court for the
as Trustee of the Robert G. Woodward, Southern District of Indiana,
Sr. Roth IRA, Evansville Division.
Plaintiff-Appellee,
No. 3:14-cv-00118-RLY-WGH
v.
Richard L. Young,
JERRY C. RIGSBY and Chief Judge.
MARY F. RIGSBY,
Defendants-Appellants.
ORDER
Jerry and Mary Rigsby appeal from a judgment for the plaintiff in this suit under
the diversity jurisdiction to enforce a promissory note. The plaintiff prevailed on an
unopposed motion for summary judgment, and like the district court, we conclude that
the Rigsbys’ default and liability on the note are undisputed.
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 15-1612 Page 2
The Rigsbys, a married couple domiciled in North Carolina, purchased a Florida
condominium in 2006 from the Robert G. Woodward, Sr. Roth IRA. The seller financed
the transaction, and in 2009, after the Rigsbys had stopped making payments, the parties
reached a settlement requiring that the Rigsbys convey the property to Wachovia Bank,
as trustee for the seller, and execute a note promising to pay Wachovia $200,000 in
June 2014 to account for the drop in market value. The promissory note provides that
any lawsuit arising from the note will be brought in Monroe County, Florida, or the
United States District Court for the Southern District of Indiana and be governed by
Florida law. Wachovia later was acquired by Wells Fargo, which then assigned the note
to the plaintiff, German American Financial Advisors & Trust Company. The plaintiff is
incorporated, and has its principal place of business, in Indiana. The Rigsbys did not pay
the note when it came due, and German American filed this action in the Southern
District of Indiana.
Only Jerry Rigsby answered the complaint. He objected to venue in Indiana,
arguing that the couple’s settlement with the seller requires that all disputes arising from
that agreement be heard by a court sitting in Monroe County, Florida. Jerry did not
mention the broader forum-selection clause in the promissory note.
German American moved for summary judgment against the Rigsbys and also
asked the clerk of the district court to enter default against Mary Rigsby. The plaintiff
submitted a trust officer’s affidavit attesting that the Rigsbys had not paid the note and
owed the principal plus late fees, interest, and attorney’s fees. German American’s
attorney also submitted an affidavit—not based on personal knowledge—asserting that
the company’s process server had left a copy of the complaint and summons on the door
of Mary’s residence.
A week later the clerk entered a default against Mary Rigsby. Not until a month
after the default, however, did the couple finally acknowledge the plaintiff’s motion for
summary judgment. They requested more time to oppose that motion and identified
several proposed defenses that they wanted the district court to consider if additional
time was not granted. Yet the Rigsbys never followed up with their response, even after
a magistrate judge had granted 30 more days and warned that their request for more
time could not substitute for a response because it does not comply with Federal Rule of
Civil Procedure 56 or the corresponding local rule. The Rigsbys’ proposed defenses
included a challenge to venue in Indiana and an assertion that North Carolina law does
not allow for deficiency judgments, though they did not develop either contention. The
No. 15-1612 Page 3
Rigsbys also asserted that the note could not be enforced because they executed it under
duress. But they did not dispute signing the note or defaulting when it came due.
German American never asked the district court to enter a default judgment
against Mary Rigsby, see FED. R. CIV. P. 55(b)(2), so the court evaluated the plaintiff’s
motion for summary judgment as against both spouses. Since neither had opposed the
validity of the note or offered evidence of duress, the district court concluded that the
Rigsbys’ nonpayment on a valid note was undisputed. The court entered judgment
against them for $214,403.
On appeal Mary Rigsby first argues that she was not served with process and thus
the district court never acquired personal jurisdiction over her. The process server hired
by German American filed with the district court a “proof of service” attesting that the
summons and complaint had been “taped to the door” of Mary’s home in North
Carolina. Federal Rule of Civil Procedure 4(e) allows for personal service or,
alternatively, leaving the complaint and summons with someone of “suitable age and
discretion” at the defendant’s residence or else “following state law for serving a
summons . . . in the state where the district court is located or where service is made.”
The plaintiff’s process server did none of these things; leaving the papers on the
defendant’s door is not enough to constitute valid service in either North Carolina or
Indiana. See IND. R. TRIAL P. 4.1; N.C. R. CIV. P., G.S. § 1A-1, R. 4(j)(1); Thomison v.
IK Indy, Inc., 858 N.E.2d 1052, 1055–56 (Ind. Ct. App. 2006); Gibby v. Lindsey, 560 S.E.2d
589, 591–92 (N.C. Ct. App. 2002). Indiana does allow for service by leaving the summons
and complaint at the defendant’s residence if copies also are mailed to that address.
See IND. R. TRIAL P. 4.1(B); Swiggett Lumber Const. Co. v. Quandt, 806 N.E.2d 334, 337–38
(Ind. Ct. App. 2004). But as far as the record shows, the process server did not even make
this minimal extra effort.
So Mary Rigsby is correct that she was not served with process. Yet a defendant
will waive objection to the absence of personal jurisdiction by giving the plaintiff a
“reasonable expectation” that she “will defend the suit on the merits.” Mobile
Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440,
443 (7th Cir. 2010); see Cont’l Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993); Gerber
v. Riordan, 649 F.3d 514, 519 (6th Cir. 2011). And Mary signaled that she would defend
the suit when she joined her husband in seeking more time to respond to German
American’s motion for summary judgment. Mary’s participation in that motion might
seem at first blush too insignificant to waive her defense to personal jurisdiction since
asking for additional time to respond to a motion is not the type of activity that typically
No. 15-1612 Page 4
will allow a plaintiff to reasonably expect a merits defense to follow. See Mobile
Anesthesiologists, 623 F.3d at 443. What the Rigsbys filed, though, was more than a
request for additional time; their submission proposes defenses for the district court to
evaluate if more time was not allotted for them to challenge the motion for summary
judgment. Mary’s participation in this filing waived any objection that she had to
personal jurisdiction.
On the merits the Rigsbys don’t challenge the validity of, or their failure to pay,
the promissory note. They simply rehash the defenses they proposed in requesting
additional time to respond to German American’s motion for summary judgment. But
their legal contentions remain undeveloped. And to the extent that the Rigsbys insist
that the note was signed under duress and is unenforceable, they didn’t offer any
evidence to support this asserted defense. The Rigsbys were warned first by German
American, see Timms v. Franks, 953 F.2d 281, 285 (7th Cir. 1992), and then by the
magistrate judge that a response to a motion for summary judgment must comply with
the rules, but they ignored those warnings, see FED. R. CIV. P. 56; S. DIST. IND. LOCAL
R. 56-1; Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359–60 (7th Cir. 2009) (explaining
that district courts are entitled to enforce Federal Rule of Civil Procedure 56 and parallel
local rules even against pro se litigants); Greer v. Bd. of Educ. of Chi., 267 F.3d 723, 727
(7th Cir. 2001) (same).
The undisputed evidence submitted by German American entitled the company
to summary judgment. The Rigsbys executed a promissory note but defaulted on that
note when it came due on June 22, 2014.
AFFIRMED.