Armco, Inc. v. Penrod-Stauffer Bldg. Systems, Inc., PENROD-STAUFFER

Citation733 F.2d 1087
Decision Date10 May 1984
Docket NumberNo. 83-1874,PENROD-STAUFFER,83-1874
PartiesARMCO, INC., Appellee, v.BUILDING SYSTEMS, INC., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Francis J. Pelland, Washington, D.C. (Sadur & Pelland, Chartered, Washington, D.C., on brief), for appellant.

Phillips P. O'Shaughnessy, Baltimore, Md. (Smith, Somerville & Case, Baltimore, Md., on brief), for appellee.

Before PHILLIPS and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

HAYNSWORTH, Senior Circuit Judge:

A default judgment went against the defendant, Penrod-Stauffer Building Systems, Inc., after which the defendant filed a motion for relief under F.R.Civ.P. 60(b)(4). From the denial of that motion, the defendant brought this appeal.

We conclude that the judgment was void for lack of personal jurisdiction of the defendant, and reverse.

I.

On February 28, 1983, Armco, Inc. filed a complaint in the United States District Court for the District of Maryland seeking to recover approximately $80,000 from Penrod-Stauffer on a claim for material sold. The next day, Armco sought to procure service of the summons and complaint pursuant to F.R.Civ.P. 4(c)(2)(C)(ii). The summons and complaint and two copies of the notice and acknowledgment form were properly mailed by registered mail, restricted delivery, return receipt requested. Bruce Stauffer, the defendant's vice president and secretary, received the letter and signed the return receipt on March 3.

The notice and acknowledgment form read, in pertinent part, as follows:

The enclosed Summons and Complaint are served pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure.

You must complete the acknowledgment part of this form and return one copy of the completed form to the sender within 20 days.

....

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.

See Form 18-A, F.R.Civ.P.

The notice and acknowledgment form was not signed or returned to Armco's lawyer by Stauffer, or anyone else on behalf of Penrod-Stauffer. No other service of process was attempted. Nevertheless, on March 24 plaintiff's attorney filed an affidavit stating that the defendant had been served pursuant to Maryland Rule of Civil Procedure 104b2. On April 6, Armco's attorney wrote to the clerk of the district court seeking entry of a default judgment and enclosing an affidavit that no responsive pleading had been filed. A copy of the April 6 letter and its enclosures was mailed by ordinary mail to Penrod-Stauffer.

On April 19, 1983, the clerk entered a default judgment against Penrod-Stauffer. He did not notify Penrod-Stauffer of its entry. On May 31, 1983, however, Penrod-Stauffer filed a motion to vacate the default judgment pursuant to Federal Rule 60(b)(4) and 60(b)(1).

The district court denied the motion, holding that service of process had been validly accomplished under Maryland Rule 104b2 and that the defendant had shown no mistake, inadvertence or excusable neglect justifying a vacation of the default judgment.

II.

Federal Rule of Civil Procedure 4(c)(2)(C)(ii) provides a convenient means for effecting service of process without involvement of a personal process server. Its effectiveness, however, is dependent upon an appropriate response by the defendant on the Notice and Acknowledgment for Service by Mail form. The notice clearly informs the defendant that the penalty for failure to sign, date and return the form is that it may be required to pay the costs of procuring service in some other manner. There was no subsequent attempt to effect service of process by any other means.

In telephone contacts with Armco's lawyer, Penrod-Stauffer officials sought to negotiate a settlement. The lawyer told them that there was a risk of default and that they should consult a lawyer, and, by copies of the affidavits filed by Armco, they were informed that Armco then claimed that service had been effected under Maryland Rule 104. However, the only process they had received was the communication of March 1 informing them that the service was being made pursuant to Federal Rule 4(c)(2)(C)(ii).

III.

We are urged to hold that Maryland's Rule of Civil Procedure 104b2 does not authorize service of process by mail upon a corporation. This is plausible since there is no reference to corporate defendants in that rule, while Rule 106 specifically provides for service of process upon corporations. Rule 107 provides for service of process by mail upon corporate defendants outside the State of Maryland, but does not provide for such service within the state of Maryland. However plausible on its face this contention may be, however, we need not decide this case on the basis of Maryland law, for Federal Rule of Civil Procedure 4(c)(2)(C)(ii), itself, forecloses the plaintiff's claim that the attempted service under that rule, ineffectual because of defendant's failure to acknowledge it, was nevertheless effective service under Maryland law and Federal Rule 4(c)(2)(C)(i).

There is a specific restriction in Federal Rule 4(c)(2)(C)(ii). It provides:

"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 in the manner prescribed by subdivision (d)(1) or (d)(3)."

The attempted service in this case was unequivocally made pursuant to Federal Rule 4(c)(2)(C)(ii). When no acknowledgment was received within twenty days, that rule itself required that service be made upon this corporate defendant under subparagraph (A) or (B) in the manner prescribed by subdivision (d)(3), which provide for...

To continue reading

Request your trial
342 cases
  • Lee v. Carlson
    • United States
    • U.S. District Court — Southern District of New York
    • October 14, 1986
    ...F.2d 1134, 1139 (5th Cir.1980), cert. denied, 451 U.S. 1008, 101 S.Ct. 2345, 68 L.Ed.2d 861 (1981). 5 Cf. Armco v. Penrod-Stauffer Building Systems, Inc., 733 F.2d 1087 (4th Cir.1984); Perkin Elmer v. Trans Mediterranean Airways, S.A.L., 107 F.R.D. 55 6 Plaintiff's failure to comply with th......
  • Dalenko v. Stephens, 5:12–CV–122–F.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • January 8, 2013
    ...jurisdiction of the court. Id. (citing Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir.1963) and Armco, Inc. v. Penrod–Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.1984)). When there is actual notice, failure to strictly comply with Rule 4 may not invalidate the service of pro......
  • Select Creations, Inc. v. Paliafito America, Inc., 91-C-1240
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • August 19, 1993
    ...judgment against a defendant who has not been served is void. Bennett, 108 F.R.D. at 146 (relying on Armco, Inc. v. Penrod-Stauffer Bldg. Systems, 733 F.2d 1087, 1089 (4th Cir.1984); Varnes v. Local 91, 674 F.2d 1365 (11th Cir.1982)). Under Rule 4, Fed.R.Civ.P., the Court notes, service upo......
  • Grim v. Balt. Police Dep't
    • United States
    • U.S. District Court — District of Maryland
    • November 8, 2019
    ...waiver of personal service was made by [plaintiff's] lawyer in a letter to defense counsel"); accord Armco, Inc. v. Pernod-Staufer Bldg. Sys., Inc., 733 F.2d 1087, 1089 n.1 (4th Cir. 1984) (observing that while "every technical violation of [Rule 4] or failure of strict compliance may not i......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT