Carimi v. Royal Carribean Cruise Line, Inc.
| Decision Date | 04 May 1992 |
| Docket Number | No. 91-3181,91-3181 |
| Citation | 959 F.2d 1344 |
| Parties | Rufus M. CARIMI, Plaintiff-Appellee, v. ROYAL CARRIBEAN CRUISE LINE, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John A. Bolles, Terriberry, Carroll & Yancey, New Orleans, La., for defendant-appellant.
Turner, Young & Hebbler, New Orleans, La., James C. Klick, Carimi Law Firm, Metairie Appeal from the United States District Court for the Eastern District of Louisiana.
La., Nesser, King & LeBlanc, New Orleans, La., for plaintiff-appellee.
Before POLITZ, Chief Judge, and REYNALDO G. GARZA and WIENER, Circuit Judges:
Defendant-Appellant Royal Carribean Cruise Line, Inc. (RCCL) appeals the denial of its motion to vacate a default judgment entered against it in favor of Plaintiff-Appellee Rufus M. Carimi (Carimi). Finding that service was not properly effected on RCCL, so that the district court did not have personal jurisdiction over RCCL at the time of the default judgment, we reverse.
In September of 1988, Carimi was a passenger on board the M/S Song of Norway, operated by RCCL. He complains that he suffered a fall on board the ship, alleging that the fall was proximately caused by RCCL's negligence.
Carimi filed suit in district court based on diversity of citizenship and mailed service to RCCL's agent by certified mail, return receipt requested. According to affidavits by Carimi's attorney and the secretary who actually compiled the mailing, the envelope contained a copy of the complaint, and the summons, and a Notice and Acknowledgement of Summons and Complaint (Acknowledgement). RCCL and its agent admit receiving the mailing but contend that it contained only the Acknowledgement and the summons, and did not include a copy of the complaint.
RCCL's agent signed the postal service return receipt, but neither he nor RCCL ever signed or returned the Acknowledgement. Carimi obtained a default judgment for approximately $57,000. Several months after the default judgment was entered, RCCL filed a motion under Fed.R.Civ.P. 60(b) to lift the default judgment and to dismiss Carimi's suit, alleging lack of jurisdiction due to insufficient service of process. The district court denied RCCL's motion and RCCL timely appealed.
When, however, the motion is based on a void judgment under rule 60(b)(4), the district court has no discretion--the judgment is either void or it is not. If a court lacks jurisdiction over the parties because of insufficient service of process, the judgment is void and the district court must set it aside. 2
If the service of process in this case was insufficient, we must reverse the district court's grant of default judgment in favor of Carimi.
One of the grounds on which RCCL disputes the sufficiency of service of process against it is that its agent received only the Acknowledgement and summons from Carimi. RCCL introduced the affidavit of the agent to substantiate this claim. Carimi countered with the affidavits of his attorney and the secretary who prepared the mailing to the effect that the mailing contained a copy of the complaint, the summons and the Acknowledgement.
Although the district court made no express findings in its denial of RCCL's motion to lift default judgment, the court must have concluded that the mailing contained a copy of the complaint as well as the Acknowledgement and summons. Otherwise Concluding that the district court necessarily made such an implicit factual determination, we apply a clearly erroneous standard to its finding on this issue. 4 Our review of the affidavits presented by the parties convinces us that the district court's conclusion was not clearly erroneous.
service would clearly have been insufficient irrespective of which rule of civil procedure governed service here. We recognize that once the validity of service of process has been contested, the plaintiff bears the burden of establishing its validity. 3 The district court must necessarily have viewed the evidence with the plaintiff's burden in mind; at least there is nothing to indicate it did not do so
In this court's summary calendar opinion, 5 the panel concluded that, even though the Plaintiff's service of the summons and complaint in this case was not properly effected under Fed.R.Civ.P. 4(c)(2)(C)(ii), it happened to satisfy the requirements of the Louisiana Long-arm statute, 6 so the service was effective under Rule 4(e). 7 Therefore, our summary calendar panel declined to reverse the default judgment entered against RCCL by the district court after RCCL failed to answer the Plaintiff's complaint.
Upon motion of RCCL, the summary panel opinion was withdrawn and a rehearing with oral argument was granted in order to re-examine the conclusions reached in the summary panel opinion. Finding that service was not properly effected under any rule of federal civil procedure, and that, therefore, the district court had no personal jurisdiction over RCCL, we reverse the district court's default judgment.
Since 1983, the Federal Rules of Civil Procedure have provided for service of a summons and complaint by first-class mail in lieu of more traditional forms of service. Rule 4(c)(2)(C)(ii) provides that the summons and complaint are to be accompanied by a notice and acknowledgement form. We find that if the conclusions of our summary panel's opinion were to appertain here, an injustice would result because the Acknowledgement mailed to RCCL would have misled the Defendant in several significant ways, inducing the inaction that led to the default judgment.
First, the Acknowledgement clearly states that the summons and complaint are being served pursuant to Rule 4(c)(2)(C)(ii). No mention is made of Rule 4(e) or of the Louisiana Long-arm statute, or of any other rule, or of service being attempted in any manner other than Rule 4(c)(2)(C)(ii).
Second, the only consequence described in the form for not returning it is:
If you do not complete and return the form to the sender within 20 days, you ... may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law.
This statement is important for two reasons: (a) In no way does it imply, much less express, that failure to take action will or could result in a default judgment (which is what happened here); and (b) the plain reading of the statement is that "serving a summons and complaint" refers to an event that will happen subsequently, if but only if the defendant fails to respond, and not to an event that has already occurred.
Third, the Acknowledgement carefully explains the one and only fact pattern that could lead to a default:
If you do complete and return this form [not "if you do not complete it], you ... must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you.... 8
Thus, there is no hint that default can occur if the defendant fails to return the Acknowledgement. In fact, the plain implication is precisely to the contrary.
Fourth, it is obvious from the wording of the rule itself, as from the acknowledgement form, that in the event the defendant elects not to complete and return the form, then an alternative mode of service will be made subsequently--not previously and not contemporaneously. Rule 4(c)(2)(C)(ii) states, in future tense,
If no acknowledgement 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). 9
One simply cannot serve a prospective defendant under Rule 4(c)(2)(C)(ii) and under another rule at the same time if there is a 20-day delay under the Rule. Mail service is clearly a two-step, not a two-pronged, process. If mail service is attempted and the acknowledgement form is not returned, there is no service. Then and only then must a plaintiff effect service by any authorized alternative; the plaintiff simply cannot unilaterally recharacterize the first step of service under Rule 4(c)(2)(C)(ii) as service pursuant to another rule or another statute. That the first step under the Rule might otherwise meet the requirements of some other method of service, such as service under Louisiana's Long-arm statute, is pure serendipity. Such coincidence cannot by hindsight be converted to a valid service--and a "gotcha" for the unsuspecting defendant.
Our prior cases, although not directly on point, lend support to the conclusion we reach today. In Delta S.S. Lines, Inc. v. Albano, 10 we considered a situation in which a plaintiff's attempted service by mail did not conform to the state mail-service provision, but which, he argued, was the "effective equivalent of federal service under Rule 4(c)(2)(C)(ii)." 11 We concluded
that Rule 4(c)(2)(C)(ii) is an integrated procedure for establishing and proving in personam jurisdiction as well as service of process and that the defendant's return and acknowledgment are an essential part of that procedure. It necessarily follows that the requirement of Rule 4(c)(2)(C)(ii) must be fully satisfied if the benefits of the Rule are claimed. Consistent therewith, a more general state mail-service procedure may not be considered the effective equivalent of this subsection. Only careful compliance with 4(c)(2)(C)(ii) will suffice. 12
The following year we decided Humana, Inc. v. Avram A. Jacobson, M.D., P.A. 13 In Humana, the plaintiff's attempt at mail service under Rule 4(c)(2)(C)(ii) was unsuccessful. The plaintiff then attempted service under Rule...
To continue reading
Request your trial
-
Wheeler v. Ceniza
...of service of process has been contested, the plaintiff bears the burden of establishing its validity." Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1996). D. Standard for Rule 12(b)(6) - Failure to State a Claim To defeat a motion to dismiss filed pursuant to ......
-
Dolen-Cartwright v. Alexander
... ... Northrop Grumman Shipbuilding, Inc. , 466 ... Fed.Appx. 341, 345 (5th Cir ... service. Id ... (citing Carmimi v. Royal Caribbean ... Cruise Line, Inc. , 959 F.2d ... ...
-
Coleman v. Bank of N.Y. Mellon
...the defendants are properly served with a summons and a copy of the complaint. Fed.R.Civ.P. 4(c)(1); Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir.1992). Here, Ozel is an individual, and Pite Duncan is a partnership. ( See doc. 24–1 at 5.) Plaintiff attempted to ......
-
Habyarimana v. Kagame
...over the parties, including valid service of process. Claus v. Mize, 317 F.3d 725, 727 (7th Cir.2003); Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir.1992); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1353 (2d ed.1990). The Court has......