Benny v. Pipes

• Decision Date: 05 September 1986
• Docket Number: No. 85-2347,85-2347
• Parties: Steve BENNY, Plaintiff-Appellee, v. Danny PIPES and Charles Payne, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 489

799 F.2d 489

6 Fed.R.Serv.3d 1359

Steve BENNY, Plaintiff-Appellee, v. Danny PIPES and Charles Payne, Defendants-Appellants.

No. 85-2347.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 12, 1986.

Decided Sept. 5, 1986.

James T. Bialac, Phoenix, Ariz., for plaintiff-appellee.

Ronald J. Greenhalgh, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellants.

Appeal from the United States District Court for the District of Arizona.

Before PREGERSON, POOLE and JOHN T. NOONAN, Circuit Judges.

PREGERSON, Circuit Judge:

This case requires us to decide the breadth of Fed.R.Civ.P. 4. Two prisoners filed suit against several prison guards. A fellow prisoner served the summonses and complaints. Because the guards failed to answer the complaint, the district court entered a default judgment against them, and later awarded damages to one prisoner. The guards argue that a summons and complaint served by a prisoner is invalid under Fed.R.Civ.P. 4. They also argue, in the alternative, that the district court should have set aside their default, or that the prisoners' complaint failed to state a claim. We affirm.

FACTS

Steve Benny and Bobby Tuzon, both then prisoners in Arizona State Penitentiary in Florence, Arizona, sued six Florence prison guards under 42 U.S.C. Sec. 1983. The complaint alleged various constitutional violations under five counts. Count one alleged that Corrections Service Officers Danny Pipes, Charles Payne, and Tony Gilbreath failed to protect Benny from physical and sexual assaults by other prisoners. This count also alleged that Pipes struck Benny. Counts two through five alleged that Sergeant Richard Towne and Lieutenant Willard Gotcher prevented Tuzon from assisting Benny in processing his administrative complaint against Pipes, Payne, and Gilbreath, and that these three officers retaliated in various ways against Tuzon for persisting in his efforts to assist Benny. ¹ Subsequently at Tuzon's request, the district court dismissed all Tuzon's claims, leaving Benny as the sole plaintiff.

Jerald E. Lee, a Florence prisoner and a convicted felon, personally served the summons and complaint on Gilbreath on March 23, 1984, and on Payne on March 29, 1984. Phillip E. Wolf, also a prisoner at Florence, and a convicted felon, served the summons and complaint on Pipes on March 27, 1984. Lee and Wolf attested to the fact of each of these services in sworn affidavits. Apparently, the guards reacted to the service by crumpling the papers and throwing them to one side as trash.

Because the guards had not answered, Benny sought a default judgment. Pipes, Payne, and Gilbreath ("the guards") moved on three separate occasions for enlargement of time to respond to the complaint. On June 27, 1984, the district court granted the guards an extension to July 12, and on July 13, in response to the third motion to enlarge, granted the guards additional time until August 24 to answer the complaint. ²

The guards filed no answer. Thus, on October 5, 1984, the district court ordered the entry of a default judgment against Payne and Pipes. ³ Six months later, the

guards unsuccessfully moved to set aside the defaults. Later, after an evidentiary hearing, the district court awarded Benny $2,000 damages against Pipes and Payne. The court exonerated Gilbreath of liability and dismissed Benny's action as to Gilbreath. Pipes and Payne timely appealed.

STANDARD OF REVIEW

A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4. Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982). A district court's determination that it may exercise personal jurisdiction over a defendant is a question of law which we review de novo when the underlying facts are not disputed. Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1326 (9th Cir.1985). "Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." United Food & Commercial Workers Union, Locals 197, 373, 428, 588, 775, 839, 870, 1119, 1179, and 1532 v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984). However, neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction without "substantial compliance with Rule 4." Jackson, 682 F.2d at 1347. A general appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive any defect in service or personal jurisdiction. Id.; Fed.R.Civ.P. 12(h)(1).

A failure to make a timely answer to a properly served complaint will justify the entry of a default judgment. Fed.R.Civ.P. 55. We may set aside a default judgment only for good cause. Fed.R.Civ.P. 60(b); see generally Wilson v. Moore and Associates, Inc., 564 F.2d 366, 368-69 (9th Cir.1977). We review a district court's denial of a motion to set aside a default judgment for an abuse of discretion. Pena v. Sequros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir.1985). We will reverse such a decision "only upon a clear showing of abuse of discretion." Id. (emphasis in original) (quoting Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 685 F.2d 1065, 1071 (9th Cir.1982), aff'd in relevant part, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984)).

ANALYSIS

A.

Benny asserts that the guards made a general appearance, and thereby waived any objection to service of process under Rule 4, by filing three motions to enlarge their time to respond to Benny's complaint. "An appearance ordinarily is an overt act by which the party comes into court and submits to the jurisdiction of the court. This is an affirmative act involving knowledge of the suit and an intention to appear." 28 Fed.Proc. (L.Ed.) Sec. 65.137 at 526 (1984); see also Wilson, 564 F.2d at 369 (informal contact between parties constitutes appearance when defendant shows "clear purpose to defend the suit"); Maricopa County v. American Petrofina, Inc., 322 F.Supp. 467, 469-70 (N.D.Cal.1971) (seeking three stipulations to extend time to respond to complaint, including one approved by court, estopped defendant from denying service of process).

Whether the guards' pre-answer motions constituted a general appearance is a close question. Indeed, the district court apparently thought the guard's motions constituted an appearance. The guards made no discernible objection to service of process in either of their first two applications for additional time to answer Benny's complaint. While, arguably, the first two motions to extend time show some intention to defend the suit, they do not manifest a "clear purpose" to defend. Compare Fed.R.Civ.P. 12(h)(1)(A) (failure to raise insufficiency of process in any Rule 12 motion waives defense); and H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 692 (D.C.Cir.1970) (75 days of settlement discussions constitute appearance); with Wilson, 564 F.2d at 369 (letter to plaintiff responding to allegations in complaint is not appearance); and Anderson v. Taylorcraft, Inc., 197 F.Supp. 872, 874 (W.D.Pa.1961) (letter to clerk notifying change of address is not appearance). However, the guards' third motion specifically reserves the option of asserting an affirmative defense based on insufficiency of service.

Generally, a motion to extend time to respond gives no hint that the answer will waive personal jurisdiction defects, and is probably best viewed as a holding maneuver while counsel consider how to proceed. The first two motions to enlarge sought additional time because of counsel's involvement in several other trials where Tuzon was the plaintiff. Certainly the guards would have been well advised to include statements in these two motions that they were not waiving any affirmative defenses, but it would be harsh indeed to label these pre-answer omissions as a general appearance. The third motion specifically reserved the defense, and, ultimately, the guards failed to answer and Benny took their defaults. The motions did not delay the action significantly nor prejudice Benny substantially--Benny obtained his defaults within six months of filing his complaint.

Thus, we conclude that the guards' actions here were insufficient to constitute a general appearance. We, therefore, turn to the guards' substantive argument that service was invalid because the process servers, Lee and Wolf, were then incarcerated felons.

B.

In 1983, Congress substantially amended Rule 4. See Federal Rules of Civil Procedure Amendments Act of 1982, Pub.L. 97-462 Sec. 2 reprinted in 1982 U.S.Code Cong. & Ad.News (96 Stat.) 2527, 2527-28. Fed.R.Civ.P. 4(c)(2)(A) now states: "A summons and complaint shall ... be served by any person who is not a party and is not less than 18 years of age." Rule 4(c)(2)(B) and (C) provide certain limited exceptions to this rule, none of which apply here. ⁴

At Benny's request, two fellow prisoners, Lee and Wolf, served the summons and complaint on each of the guards. Neither Lee nor Wolf is a party to the action, and, since they are in an adult prison, both must be over 18 years of age. The guards note that, under Arizona law, prisoners lose certain civil rights on conviction. See Ariz.Rev.Stat. Secs. 13-904(A)(2) (prisoner forfeits "right to hold public office of trust"), 13-904(A)(4) (prisoner forfeits "any other civil rights the suspension of which is reasonably necessary for the security of the institution."). The guards assert that the right to serve process is among those rights forfeited by Arizona state prisoners, and that, therefore, service was invalid.

Even accepting the guards' expansive reading of Arizona law, their argument is beside the point. In a diversity suit, the mandate of the federal rules will override any contrary state procedural law. See Hanna v. Plumer, 380 U.S. 460, 463-64, 85 S.Ct. 1136, 1139-40, 14 L.Ed.2d 8 (1965). In a federal question case such as Benny's suit,...