801 F.2d 834 (6th Cir. 1986), 85-1687, United States v. Gluklick

Docket Nº:85-1687.
Citation:801 F.2d 834
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward GLUKLICK, et al., Defendants-Appellants.
Case Date:September 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 834

801 F.2d 834 (6th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward GLUKLICK, et al., Defendants-Appellants.

No. 85-1687.

United States Court of Appeals, Sixth Circuit

September 18, 1986

Argued Aug. 7, 1986.

Stuart A. Gold (argued), Greenbaum, Greenbaum & Gold, Southfield, Mich., for defendants-appellants.

Ellen Christensen, Detroit, Mich., Peter A. Caplan (argued), for plaintiff-appellee.

Page 835

Before KEITH and NELSON, Circuit Judges, and CONTIE, Senior Circuit judge.

CONTIE, Senior Circuit Judge.

Defendants Edward Gluklick 1 and Gluck Construction company appeal from an order of the district court granting judgment in favor of plaintiff, the United States, on its complaint brought pursuant to the False Claims Act. On appeal, defendants challenge service as defective. For the reasons that follow, we affirm.

I.

On December 16, 1983, the United States filed a complaint against defendants Edward Gluklick and Gluck Construction Company under the False Claims Act, 31 U.S.C. Secs. 231-235 and 28 U.S.C. Sec. 1345. The complaint alleged that defendants were awarded a $101,362 contract by the Veterans Administration (VA) and submitted an invoice for $68,000 for the first progress payment. The complaint also alleged that the VA disbursed a $68,000 check which defendants reported that they never received. The VA disbursed a second check, and then defendants allegedly cashed both checks although they had been paid the full amount of the contract. The United States alleged claims for violation of the False Claims Act (Count I), fraud (Count II), unjust enrichment (Count III), and breach of contract (Count IV). 2

On June 4, 1984, the United States requested an entry of default judgment and such was entered on that date. On June 15, 1984, counsel for the plaintiff wrote to counsel for defendants:

Pursuant to our conversation, I have checked my file which indicates that your client did not sign the Rule 4 acknowledgment of service, despite the fact that he signed the certified mail receipt. If your client will not acknowledge, I will arrange for personal service by the Marshal before taking a default. However, I do think the judge would be angered by your client's recalcitrance when we ultimately bring the matter of costs before him.

On June 25, 1984, counsel for defendants replied that defendants would receive service contingent upon the setting aside of the default previously entered.

On July 18, 1984, the district court set aside the default judgment in light of a stipulation by the parties that the default be set aside and, "upon entry of the above order, defendant shall accept service of process in this matter and file a responsive pleading within 20 days." On August 7, 1984, defendants moved to dismiss the case on the ground that service was invalid because defendants were not served within 120 days as required by Fed.R.Civ.P. 4(j). It is uncontested that the United States attempted to serve defendants by certified mail pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii) on December 16, 1983 and January 17, 1984, and that service was received by Shirley...

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