825 F.2d 437 (D.C. Cir. 1987), 84-5601, Combs v. Nick Garin Trucking

Docket Nº:84-5601, 84-5677.
Citation:825 F.2d 437
Party Name:Fed.R.Serv.3d 627 Harrison COMBS, Trustee, United Mine Workers 1974 Pension Trust, et al. v. NICK GARIN TRUCKING, Appellant. Harrison COMBS, Trustee, United Mine Workers 1974 Pension Trust, et al. v. NICK GARIN TRUCKING, Appellant.
Case Date:August 04, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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825 F.2d 437 (D.C. Cir. 1987)

Fed.R.Serv.3d 627

Harrison COMBS, Trustee, United Mine Workers 1974 Pension Trust, et al.



Harrison COMBS, Trustee, United Mine Workers 1974 Pension Trust, et al.



Nos. 84-5601, 84-5677.

United States Court of Appeals, District of Columbia Circuit

August 4, 1987

Argued Sept. 27, 1985.

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Frank D. Magone, with whom Frank A. Conte was on the brief, for appellant.

William F. Hanrahan, with whom Catherine H. Mitchell was on the brief, for appellees.

Before ROBINSON and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.


Appellant, Nick Garin Trucking (Garin Trucking), a sole proprietorship owned by Nick Garin, challenges the District Court's entry of, and subsequent refusal to vacate, a default judgment against it. We conclude that appellees' attempted utilization of the new federal mail service rule failed for lack of an acknowledgment of service, and foreclosed reliance on state-law methods of service of process. We accordingly hold the default judgment void and reverse.


Appellees, trustees of the United Mine Workers of America 1974 Pension Trust, 1 instituted an action in the District Court in 1983, alleging that Garin Trucking had defaulted in the discharge of its withdrawal liability obligations 2 to the trust. 3 The

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trustees endeavored to effect service of process on Garin Trucking by mailing the summons and a copy of the complaint, via certified mail with return receipt requested, to Nick Garin at the company's address. 4 Enclosed with these papers were two copies of the "Notice and Acknowledgment for Service by Mail" 5 published as form 18-A in the Appendix of Forms to the Federal Civil Rules. 6 The notice informed Garin Trucking that the summons and complaint were "served pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure," 7 and referring to an enclosed form captioned "Acknowledgment of Receipt of Summons and Complaint," 8 the notice warned:

If you do not complete and return the form to the sender within 20 days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law.

If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. 9

The trustees later received a return receipt, bearing the purported signature of Nick Garin in the space for signature of the addressee, which indicated that the summons and complaint had been delivered. 10 Neither Nick Garin nor Garin Trucking, however, ever returned the acknowledgment of service of those papers. 11

Shortly thereafter, the trustees asked the clerk of the District Court to enter Garin Trucking's default. 12 In a supporting affidavit, counsel for the trust avowed that "the complaint and summons in this action were served upon the defendant via registered or certified mail...." 13 The clerk entered a default on the day the request was made. 14

The trustees then moved for entry of a judgment by default. 15 At that point, Garin

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Trucking made its first appearance in the case 16 by filing a memorandum in opposition to entry of a default judgment. 17 Garin Trucking also submitted a motion of its own, apparently seeking to set aside the default. 18 Both filings rested on the contention that the trustees had not obtained valid service of process. Garin Trucking argued that by enclosing copies of form 18-A with the summons and complaint, the trustees had elected to attempt service pursuant to Rule 4(c)(2)(C)(ii), and that the requirements of that provision had not been satisfied because service had never been acknowledged. 19 The trustees conceded that initially they had relied on Rule 4(c)(2)(C)(ii), 20 but contended that regardless of any failure to effect proper service thereunder, the mailing satisfied alternatively 21 the requirements of Rule 4(c)(2)(C)(i), which authorizes service in accordance with state law. 22 The District Court granted the trustees' motion for a default judgment and referred the case to a magistrate for an evidentiary hearing on damages. 23

Garin Trucking then moved, pursuant to Rule 60(b), 24 to vacate the default judgment, 25

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] again contending that the judgment was improper for failure to effect service. 26 The District Court denied this motion in an order rejecting as "without merit" the proposition that an acknowledgment was "a requisite to service under Rule 4." 27 Shortly thereafter, the court entered judgment for the trustees in the amount of $48,620.39 in accordance with the recommendation of the magistrate. 28 Garin Trucking now appeals from both orders.


A motion to vacate a default judgment is governed by Federal Civil Rule 60(b). 29 In pertinent part, that rule provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... [or] (4) the judgment is void.... 30

Garin Trucking referred the District Court to Rule 60(b) as ample support for its request that the default judgment be nullified, 31 and reasserts that position here.

We begin our analysis of Garin Trucking's argument by noting potentially crucial differences between subdivisions (1) and (4) of Rule 60(b). A motion to set aside a default judgment pursuant to Rule 60(b)(1) "is committed to the discretion of the trial court" 32 and any ruling thereon will be reversed on appeal only if that discretion is abused. 33 In contrast, "[t]here is no question of discretion on the part of the court when a motion is under Rule 60(b)(4);" 34 if the judgment is void, relief is mandatory. 35 Moreover, different elements must be considered in evaluating applications under the two provisions. In reviewing motions pursuant to Rule 60(b)(1), we have directed the District Court to take three factors into account: " 'whether (1) the default was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense [to the action is] meritorious.' " 36 On the other hand, "[a] party attacking a judgment as void need show no meritorious claim or defense or other equities on his behalf; he is entitled to have the

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judgment treated for what it is, a legal nullity." 37 With these dissimilarities in mind, we turn to first consider whether the judgment at issue was void.


Relief under Rule 60(b)(4) is not available merely because a disposition is erroneous. 38 Rather, before a judgment may be deemed void within the meaning of the rule, "it must be determined that the rendering court was powerless to enter it." 39 Of course, an in personam judgment entered without personal jurisdiction over a defendant is void as to that defendant. 40 And, since service of process is the means by which a court asserts jurisdiction to adjudicate the rights of a party, 41 it is uniformly held that a judgment is void where the requirements for effective service have not been satisfied. 42 Thus, if Garin Trucking's service-of-process objection is meritorious, we must reverse the default judgment herein as void.

In the federal courts, the adequacy of efforts to effect service in civil actions is controlled by Rule 4. 43 As recently amended, 44 that rule authorizes three principal

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methods of serving process in civil actions: (1) personal service by anyone not a party to the suit who is at least eighteen years of age, 45 (2) service pursuant to state law, 46 and (3) mail service in accordance with the requirements of subdivision (ii) of subparagraph (c)(2)(C). 47

It is undisputed that the trustees relied initially on the federal mail service rule in attempting service 48 and, because they admit that no acknowledgment of service was ever received, 49 they do not argue that the requirements for federal mail service were satisfied. 50 Instead, the trustees maintain that, as it turned out, the complaint was properly served in accordance with state law and validated by Rule 4(c)(2)(C)(i). 51 The question thus confronting us is whether an unsuccessful attempt at federal mail service is nonetheless effective if it conforms with state-law methodology.

Rule 4(c)(2)(C)(ii) sets forth specifically the options available to a plaintiff whose effort to achieve federal mail service is frustrated by a defendant who declines to acknowledge:

If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph.... 52

Subparagraphs (A) and (B) authorize personal service by a nonparty 53 and by a United States marshal, 54 respectively. The unmistakable meaning of this provision is that if a defendant does not return the notice of acknowledgment, the plaintiff must make a second attempt to secure service on that defendant if he is to be further pursued in the litigation. 55

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This reading is bolstered by two factors. First, Rule 4 itself specifies the sanction that may be imposed upon the defendant for failure to return an acknowledgment--payment of "the costs of personal service" 56--without any suggestion whatsoever that the failure might also result in entry of default or default judgment. 57 Second, only this...

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