Homer v. Jones-Bey, No. 04-4205.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtCudahy
Citation415 F.3d 748
Decision Date22 July 2005
Docket NumberNo. 04-4205.
PartiesLisa HOMER, Defendant-Appellant, v. Nathaniel JONES-BEY, Plaintiff-Appellee.
415 F.3d 748
Lisa HOMER, Defendant-Appellant,
v.
Nathaniel JONES-BEY, Plaintiff-Appellee.
No. 04-4205.
United States Court of Appeals, Seventh Circuit.
Argued May 13, 2005.
Decided July 22, 2005.

Page 749

Michael L. Parkinson (argued), Lafayette, IN, for Plaintiff-Appellee.

Page 750

Thomas D. Quigley (argued), Office of Attorney General, Indianapolis, IN, for Defendant-Appellant.

Before CUDAHY, EASTERBROOK and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.


Defendant Lisa Homer, who was named (as "Lisa Hommer") as a defendant in Plaintiff Jones-Bey's prisoner suit alleging deliberate disregard of his medical needs, appeals the entry of a default judgment against her and the denial of her subsequent Rule 60(b) motion to set aside that judgment. Homer claims that she was never served with process in the suit. For the reasons that follow, we vacate the judgment and remand for further proceedings.

I. FACTUAL BACKGROUND AND DISPOSITION BELOW

Most of the basic facts underlying this appeal are straightforward. On June 30, 1999, plaintiff Nathaniel Jones-Bey, a state prisoner, filed a lawsuit alleging that Indiana Maximum Control Facility (MCF) nurse "Lisa Hommer" and two other defendants had been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. "Lisa Hommer" entered no appearance in the case, which went to a jury trial on February 25, 2002. The district court docket records a "RETURN OF SERVICE executed upon defendant Lisa Hommer on 10/30/99." At trial the district court granted both of Homer's co-defendants judgment as a matter of law, but also granted Jones-Bey's motion for a default judgment against "Hommer." The jury awarded $40,000 in damages against "Hommer" on March 7, 2002.

After some procedural wrangling about Jones-Bey's attempt to pursue proceedings supplemental against "Lisa Hommer," the matter was finally set for a hearing in September of 2003. Lisa Homer was served with a summons on September 16, 2003, and the return of service was filed with the court on the next day. The summons identified Homer as the "Judgment Debtor" and instructed her to appear in federal court "to answer concerning the judgment debtor's property, income, and profits."

After multiple continuances, the court granted Jones-Bey's motion to initiate a garnishment hearing against "Hommer" on June 1, 2004. On June 7, 2004, Lisa Homer appeared by counsel and moved the district court, pursuant to Federal Rule of Procedure 60(b), to set aside the default judgment against her for lack of personal jurisdiction and to dismiss the action against her. Specifically, Homer argued that she was never properly served with process in connection with the 1999 lawsuit, and thus that the default judgment entered against her was void. Homer submitted her own declaration averring that her name was not "Lisa Hommer," that she had not worked at the MCF in Westville, Indiana since July 1998 and that she had not been served in 1999 with a copy of the complaint or summons that ultimately led to the default judgment against her. She stated that she had no knowledge whatsoever of the existence of that action until she was served with process identifying her as the "Judgment Debtor" in September 2003.

Jones responded on August 13, 2004. Attached to the response was a Declaration by Paul Joseph of the U.S. Marshals Service, who stated that he had handled the summons to "Lisa Hommer" in October of 1999. He stated that he had learned from the MCF that "Lisa Homer" no longer worked there, and he sent the summons to Homer's last known residential

Page 751

address as provided by the MCF. Consistent with the practice of the Marshals Service (for security reasons). Joseph stated that he had not noted the address on the summons. He recited that he had received the signed return receipt for the summons from the posted address on October 30, 1999, and that it had been signed by someone named "Homer." Joseph also declared that he was familiar with Homer's address because he had sent her several certified postings during 1999, and that he sent the 2003 summons (which Homer did receive) to the same address he had used in 1999.

Attached to Joseph's declaration was a copy of the "PROCESS RECEIPT AND RETURN" form ordering service of process on "Lisa Hommer" at the MCF facility, signed by an "L. Jozaite" and dated October 29, 1999. Apparently believing that Homer still worked at the MCF facility, Jones-Bey had initially attempted, via the Marshals Service, to serve her there. When this attempt failed, service was re-routed to a different address — presumably the one on file with the MCF as Homer's home address. However, consistent with the policy of the Marshals Service, the Return of Service form does not list this new address; it merely gives a certified mail number and states "Sent to last known address." Most crucially, the original certified postal receipt from October 30, 1999 — the only document bearing the address to which the original 1999 summons was actually sent and the signature of the individual who received the mailing — was missing. Joseph testified that, pursuant to Marshals Service standard record-keeping protocols, postal receipts are routinely destroyed three years after they are received. The original postal receipt from the 1999 summons thus apparently had been destroyed pursuant to this policy.

On August 27, 2004, Homer replied to Jones-Bey's response. Homer also submitted a declaration from Joseph, and this one expressly recanted many of his earlier statements in the Jones-Bey declaration. Joseph now stated that he could not recall the address to which the summons and complaint were sent in 1999, and he did not know whether the MCF had given him the correct address when he sent them. He also stated that he did not remember whether the name signed on the postal receipt was "Homer." Further, he declared that he was now unsure whether the same address was used in mailing the 1999 summons and in mailing the 2003 order to appear (other than that the city was the same). Joseph also reiterated that the original postal return receipt from the October 1999 mailing had been destroyed consistent with standard record-keeping procedures. Joseph finally expressly withdrew any statement in his earlier declaration that conflicted with these later recitations.

Faced with this dearth of definitive information, the district court initially proposed that an evidentiary hearing be held to probe the details of the Marshals Service's attempts to serve Homer in 1999. This proposal was rejected, and the court proceeded to rule on the merits of Homer's Rule 60(b) motion. On November 12, 2004, the district court denied Homer's Rule 60(b) motion to set aside the default judgment. The district court ruled that (1) the Marshals Service's return of service document showing that process had been served on "Lisa Hommer" on October 29, 1999, though it specified no particular address and identified no specific individual as having received the service, constituted a prima facie showing that Homer had been served with process, and (2) Homer had not rebutted this showing with "strong and convincing" evidence. (Nov. 12, 2004 Order). Homer now appeals.

Page 752

II. JURISDICTION

Our jurisdiction over the present appeal is not disputed. The district court had jurisdiction over Jones-Bey's Eighth Amendment claims pursuant to 28 U.S.C. §§ 1331 and 1334, and it entered a default judgment against "Lisa Hommer" in the amount of $40,000 on March 7, 2002. On June 7, 2004, Homer appeared and made her Rule 60(b) motion asking that the judgment be set aside as void for lack of personal jurisdiction. The district court denied that motion on November 12, 2004 and entered its final order to that effect on November 16, 2004. Homer timely filed the instant appeal on December 13, 2004. Accordingly, our jurisdiction now rests on 28 U.S.C. § 1291.

III. DISCUSSION

Homer challenges the denial of her Rule 60(b) motion to set aside the earlier default judgment against her for lack of personal jurisdiction. Under Federal Rule of Civil Procedure 60(b)(4), a movant "`may attack the judgment for lack of jurisdiction over the person at any time since a judgment rendered without jurisdiction over the person [is] void.'" Robinson Engineering Co. Pension Plan and Trust v. George, 223 F.3d 445, 453 (7th Cir.2000) (quoting Taft v. Donellan Jerome, Inc., 407 F.2d 807, 808 (7th Cir.1969)). In denying Homer's motion, the district court relied on the general principle that, under Federal Rule of Civil Procedure 4, "[a] signed return of service constitutes prima facie evidence of valid service `which can be overcome only by strong and convincing evidence.'" O'Brien v. R.J. O'Brien & Associates, Inc., 998 F.2d 1394, 1398 (7th Cir.1993) (quoting Hicklin v. Edwards, 226 F.2d 410, 414 (8th Cir.1955)). See also Taft v. Donellan Jerome, Inc., 407 F.2d 807, 808-09 (7th Cir.1969) (same rule). Once such a prima facie showing is made, the burden shifts to the defendant to demonstrate that service was not received. Jones v. Jones, 217 F.2d 239, 242 (7th Cir.1954).

The district court observed that a signed return of service was produced by the plaintiff in this case1 and asserted that the defendant presented no "strong and convincing" evidence to rebut this prima facie showing of service — no evidence of a mistake or confusion regarding her address, of her having moved, or of delivery to a different individual at her correct address. (Nov. 12, 2004 Order, App. at 46.) In light of these determinations, the district court concluded that Homer had not overcome Jones-Bey's prima facie showing of service, and it denied her Rule 60(b) motion to set aside the default judgment.

Homer challenges the district court's ruling on several grounds: she argues that (1) the record does not support the district court's factual findings,2 (2) a return of

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82 practice notes
  • Aranda v. Foamex Int'l, No. CIV 12–0405 JB/ACT.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 11, 2012
    ...of Appeals for the Eighth Circuit, have noted that states will often forgive such “technical” defects in service. Homer v. Jones–Bey, 415 F.3d 748, 757 (7th Cir.2005) (noting that Indiana courts excuse “technical shortcomings in service”); Norsyn, Inc. v. Desai, 351 F.3d 825, 830 (8th Cir.2......
  • Dumas v. Tenacity Constr. Inc., No. 18-P-293
    • United States
    • Appeals Court of Massachusetts
    • April 3, 2019
    ...jurisdiction). In general, the plaintiff bears the burden of establishing the validity of service of process. See Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005) ; Rivera-Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992) ("once challenged, plaintiffs have the burden o......
  • Trujillo v. Harsarb, Inc., 1:21-cv-00342-NONE-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 26, 2021
    ...set aside default judgment] has little or no basis on which to challenge the alleged service of process.' ”) (quoting Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005)) (bracketed alteration in original); TMX Logistics, Inc. v. FF Trucking, Inc., No. CV1400873PSGASX, 2014 WL 12691618, a......
  • Aranda v. Foamex Int'l, No. CIV 12-0405 JB/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 10, 2012
    ...of Appeals for the Eighth Circuit, have noted that states will often forgive such "technical" defects in service. Homer v. Jones-Bey, 415 F.3d 748, 757 (7th Cir. 2005)(noting that Indiana courts excuse "technical shortcomings in service"); Norsyn, Inc. v. Desai, 351 F.3d 825, 830 (noting th......
  • Request a trial to view additional results
82 cases
  • Aranda v. Foamex Int'l, No. CIV 12–0405 JB/ACT.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 11, 2012
    ...of Appeals for the Eighth Circuit, have noted that states will often forgive such “technical” defects in service. Homer v. Jones–Bey, 415 F.3d 748, 757 (7th Cir.2005) (noting that Indiana courts excuse “technical shortcomings in service”); Norsyn, Inc. v. Desai, 351 F.3d 825, 830 (8th Cir.2......
  • Dumas v. Tenacity Constr. Inc., No. 18-P-293
    • United States
    • Appeals Court of Massachusetts
    • April 3, 2019
    ...jurisdiction). In general, the plaintiff bears the burden of establishing the validity of service of process. See Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005) ; Rivera-Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992) ("once challenged, plaintiffs have the burden o......
  • Trujillo v. Harsarb, Inc., 1:21-cv-00342-NONE-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 26, 2021
    ...set aside default judgment] has little or no basis on which to challenge the alleged service of process.' ”) (quoting Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005)) (bracketed alteration in original); TMX Logistics, Inc. v. FF Trucking, Inc., No. CV1400873PSGASX, 2014 WL 12691618, a......
  • Aranda v. Foamex Int'l, No. CIV 12-0405 JB/ACT
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 10, 2012
    ...of Appeals for the Eighth Circuit, have noted that states will often forgive such "technical" defects in service. Homer v. Jones-Bey, 415 F.3d 748, 757 (7th Cir. 2005)(noting that Indiana courts excuse "technical shortcomings in service"); Norsyn, Inc. v. Desai, 351 F.3d 825, 830 (noting th......
  • Request a trial to view additional results

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