Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, No. 86-2577

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore THORNBERRY, GARWOOD, and HIGGINBOTHAM; PER CURIAM
Citation841 F.2d 646
PartiesBLUDWORTH BOND SHIPYARD, INC., Plaintiff-Appellee, v. M/V CARIBBEAN WIND, Her Engines, Tackle, Etc., In Rem, et al., Defendants, Rolf Westerstrom, Defendant-Appellant.
Docket NumberNo. 86-2577
Decision Date08 April 1988

Page 646

841 F.2d 646
10 Fed.R.Serv.3d 1147
BLUDWORTH BOND SHIPYARD, INC., Plaintiff-Appellee,
v.
M/V CARIBBEAN WIND, Her Engines, Tackle, Etc., In Rem, et
al., Defendants,
Rolf Westerstrom, Defendant-Appellant.
No. 86-2577.
United States Court of Appeals,
Fifth Circuit.
April 8, 1988.

Page 647

Malinda G. York, Houston, Tex., for defendant-appellant.

James A. Newsom, Dan H. Hinds, Hinds & Meyer, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Defendant-appellant Rolf Westerstrom (Westerstrom) appeals the district court's denial of his motion to set aside a default judgment entered in favor of plaintiff-appellee Bludworth Bond Shipyard, Inc. (Bludworth). Westerstrom contends that the default judgment is void for want of personal jurisdiction because (1) service of process did not comply with the Texas long-arm statute and (2) he did not have sufficient minimum contacts with Texas to be subject to long-arm jurisdiction and therefore amenable to service. We agree that Westerstrom was not properly served, and accordingly we reverse and remand.

I.

On September 12, 1983, Bludworth filed this action in the United States District Court for the Southern District of Texas against the M/V CARIBBEAN WIND, in rem, and Westerstrom and Contrast Shipping, Ltd., in personam, to recover an unpaid balance of $12,497.53 for repairs performed on the vessel during September 1982 at Bludworth's Houston, Texas shipyard. Bludworth alleged that it had performed the repairs pursuant to a contract with Westerstrom and Contrast Shipping, Ltd. Jurisdiction was predicated on 28 U.S.C. Sec. 1333(1) (admiralty). The complaint alleges that Westerstrom is a resident of Florida and does not have an office, place of business, or agent for service in Texas, but entered into a contract with plaintiff to be performed in Texas, and that the suit arises out of Westerstrom's breach of contract.

As allowed by Fed.R.Civ.P. 4(c)(2)(C)(i), Bludworth attempted to serve defendants in accordance with the now recodified Texas long-arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1984). 1 Bludworth served the Texas Secretary of State in September

Page 648

1983. The Secretary of State forwarded to each defendant a copy of the citation and petition. The copies were sent certified mail, return receipt requested, to the Miami, Florida address alleged in the complaint as being the office address of each defendant; these citations were each returned "Unclaimed" on October 13, 1983. In November, Bludworth again served the Secretary and provided a different, new address, the same for each defendant. The Secretary forwarded process for each defendant to this new address and, on December 1, 1983, the envelopes were each again returned. Westerstrom's envelope bore the notation "Moved, Left No Address." The district court entered a judgment of default against defendants in September 1984. 2

On April 29, 1986, after Bludworth noticed a deposition of Westerstrom in aid of execution of the judgment, Westerstrom filed an answer and a motion to set aside the default judgment. The answer denies that Westerstrom entered into a contract with plaintiff, and alleges that whatever Westerstrom did in that connection was only as an agent for a disclosed principal. In the motion to set aside, Westerstrom clearly asserted that Bludworth had not served him and that the court therefore lacked personal jurisdiction over him. We will treat these concurrently filed papers as properly raising the issue of personal jurisdiction. 3

In his affidavit accompanying the motion to set aside, Westerstrom claimed that:

(1) Contrast Maritime, Ltd., not Contrast Shipping, Ltd., owned the M/V CARIBBEAN WIND;

(2) he was a minority shareholder in Contrast Maritime, Ltd.;

(3) he ordered the repairs on behalf of Contrast Maritime, Ltd. 4 ;

(4) the first address at which Bludworth attempted to serve him was the office of Contrast Maritime, Ltd., which was closed in August 1983;

(5) he had not lived at the second address at which Bludworth attempted to serve him since 1981; and

(6) he had no notice of the judgment until July 1985 when he was served with a notice of the deposition in aid of execution.

Bludworth disputed Westerstrom's assertion that he first learned of the suit in July 1985 and filed an affidavit of its Florida attorney stating that the attorney first contacted Westerstrom in November 1984 and again in February 1985. Westerstrom's attorney then filed an affidavit stating that Westerstrom may have spoken with the Florida attorney prior to July 1985, but "was under the impression that the matter against him personally would no longer be pursued." Bludworth did not contest Westerstrom's claim that when suit was filed and service was attempted he did not live or office at any of the addresses that Bludworth gave the Texas Secretary of State and did not have notice of this suit until after the default judgment was entered.

On June 23, 1986, the district court held a conference and denied without explanation Westerstrom's motion to set aside the judgment. This appeal followed.

II.

The issue before us on appeal is whether the district court erred in denying Westerstrom's

Page 649

motion to set aside the default judgment for want of personal jurisdiction. Rule 60(b)(4), Fed.R.Civ.P., authorizes the relief that Westerstrom seeks. 5 Bludworth argues that we may reverse a district court's decision under Rule 60(b) only for an abuse of discretion. Bludworth contends that the district court had jurisdiction over Westerstrom and that Westerstrom's delay in seeking relief precludes our finding an abuse of discretion.

Generally, we will not disturb a district court's decision to deny relief under Rule 60(b) unless the denial is "so unwarranted as to constitute an abuse of discretion." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981) (emphasis in original). When, however, a district court lacks jurisdiction over the defendant because of lack of service of process, the judgment is void and, under Rule 60(b)(4), the district court must set it aside, Recreational Properties v. Southwest Mortg. Service, 804 F.2d 311, 314 (5th Cir.1986), regardless of whether the movant has a meritorious defense, Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 280 (5th Cir.1987); see also Peralta v. Heights Medical Center, Inc., --- U.S. ----, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); Miner v. Punch, 838 F.2d 1407, 1410 (5th Cir.1987). Furthermore, there is generally no timeliness requirement applicable to a Rule 60(b)(4) motion. See generally 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2862 at 197 (1973). 6

Thus, our inquiry in this case focuses on Bludworth's attempts to serve Westerstrom with process pursuant to the Texas long-arm statute. There are two separate prongs to this inquiry: (1) whether Westerstrom was amenable to service and (2) whether Westerstrom "was, in fact, served in the manner required by statute." Whitney v. L & L Realty Corp., 500 S.W.2d 94, 95-96 (Tex.1973); U.N.L., Inc. v. Oak Hill Photo Finishing, 733 S.W.2d 402, 404 (Tex.App.--San Antonio 1987, no writ). See also Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 777-78 (5th Cir.1986) (discussing due process limitation on long-arm jurisdiction), cert. denied, --- U.S. ----, 107 S.Ct. 1892, 95 L.Ed.2d 499 (1987). 7 We begin with the service requirements under article 2031b.

A. Service of Process

Article 2031b, section 5, requires a "statement of the name and address of the

Page 650

home or home office of the non-resident." Westerstrom's uncontradicted affidavit established that Bludworth twice provided...

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55 practice notes
  • Battle v. Liberty Nat. Life Ins. Co., Civ. A. No. 70-H-752-S.
    • United States
    • U.S. District Court — Northern District of Alabama
    • August 6, 1991
    ...brought at any time, at least absent "exceptional circumstances ... difficult to imagine." Bludworth Bond Shipyard v. M/V Caribbean Wind, 841 F.2d 646, 649 & n. 6 (5th Cir.1988). Accord In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.1985); Pacurar v. Hernly, 611 F.2d 179, 181 (7......
  • Alabama Dept. of Human Resources v. Lewis, No. CIV.A. 01-0812-CGM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 14, 2002
    ...953 F.2d 21, 23 (1st Cir.1992); Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir.1993); Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir.1988); Rodd v. Region Constr. Co., 783 F.2d 89, 91 (7th Cir.1986) ("The reasonable time criterion of Rule 60(b) as it relates ......
  • In re Chinese-Manufactured Drywall Prods. Liab. Litig., CIVIL ACTION NO. 09-02047 SECTION "L" (5)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • April 21, 2017
    ...writ, or order." McGuire v. Sigma Coatings, 48 F.3d 902, 907 (5th Cir. 1995) (citing Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir. 1988) (per curiam)). Other circuits have reasoned that "service of process is not legally defective simply because the compla......
  • State of Alabama Department of Human Resources v. Lewis, Civil Action No. 01-0812-CG-M (S.D. Ala. 5/14/2002), Civil Action No. 01-0812-CG-M.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 14, 2002
    ...F.2d 21, 23 (1st Cir. 1992); Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993); Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir. 1988); Rodd v. Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("[T]he reasonable time criterion of Rule 60(b) as it relate......
  • Request a trial to view additional results
55 cases
  • Battle v. Liberty Nat. Life Ins. Co., Civ. A. No. 70-H-752-S.
    • United States
    • U.S. District Court — Northern District of Alabama
    • August 6, 1991
    ...brought at any time, at least absent "exceptional circumstances ... difficult to imagine." Bludworth Bond Shipyard v. M/V Caribbean Wind, 841 F.2d 646, 649 & n. 6 (5th Cir.1988). Accord In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.1985); Pacurar v. Hernly, 611 F.2d 179, 181 (7......
  • Alabama Dept. of Human Resources v. Lewis, No. CIV.A. 01-0812-CGM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 14, 2002
    ...953 F.2d 21, 23 (1st Cir.1992); Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir.1993); Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir.1988); Rodd v. Region Constr. Co., 783 F.2d 89, 91 (7th Cir.1986) ("The reasonable time criterion of Rule 60(b) as it relates ......
  • In re Chinese-Manufactured Drywall Prods. Liab. Litig., CIVIL ACTION NO. 09-02047 SECTION "L" (5)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • April 21, 2017
    ...writ, or order." McGuire v. Sigma Coatings, 48 F.3d 902, 907 (5th Cir. 1995) (citing Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir. 1988) (per curiam)). Other circuits have reasoned that "service of process is not legally defective simply because the compla......
  • State of Alabama Department of Human Resources v. Lewis, Civil Action No. 01-0812-CG-M (S.D. Ala. 5/14/2002), Civil Action No. 01-0812-CG-M.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 14, 2002
    ...F.2d 21, 23 (1st Cir. 1992); Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993); Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir. 1988); Rodd v. Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("[T]he reasonable time criterion of Rule 60(b) as it relate......
  • Request a trial to view additional results

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