Hukill v. Ok. Native American Domestic Violence

• Decision Date: 17 September 2008
• Docket Number: No. 07-5168.,07-5168.
• Citation: 542 F.3d 794
• Parties: Sheree L. HUKILL, Plaintiff-Appellee, v. OKLAHOMA NATIVE AMERICAN DOMESTIC VIOLENCE COALITION, d/b/a/ Spirits Of Hope; Pauline Musgrove, Defendants-Appellants, and Nick Dooley, Charlotte Johns, Jeanie Jones, Angela Knifechief, Jaime Leverett, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

542 F.3d 794

Sheree L. HUKILL, Plaintiff-Appellee, v.OKLAHOMA NATIVE AMERICAN DOMESTIC VIOLENCE COALITION, d/b/a/ Spirits Of Hope; Pauline Musgrove, Defendants-Appellants, and Nick Dooley, Charlotte Johns, Jeanie Jones, Angela Knifechief, Jaime Leverett, Defendants.

No. 07-5168.

United States Court of Appeals, Tenth Circuit.

September 17, 2008.

Submitted on the briefs:^*

Debra W. McCormick, Rubenstein, Bryan, McCormick & Pitts, Edmond, OK; Patricia Kirch, Rainey Martin LLP, Oklahoma City, OK, for Defendants-Appellants.

Matthew B. Free, Best & Sharp, Tulsa, OK, for Plaintiff-Appellee.

Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.

PORFILIO, Circuit Judge.

DefendantsPauline Musgrove and Oklahoma Native American Domestic Violence Coalition (d/b/a "Spirits of Hope") appeal the district court's denial of their motion to set aside a default judgment in favor of plaintiffSheree L. Hukill.Because Ms. Hukill did not properly serve Ms. Musgrove and Spirits of Hope, the district court did not have jurisdiction over them, and we conclude that it was required to set aside the default judgment.We therefore reverse and remand to the district court with directions to vacate the default judgment against these defendants.

Background

The relevant facts are not in dispute.Ms. Hukill worked for Spirits of Hope as a grant writer and staff attorney until her employment was terminated in December 2004.Following her termination, she filed a lawsuit in Oklahoma state court against Spirits of Hope, Ms. Musgrove, and other defendants.Ms. Hukill voluntarily dismissed her state-law action in October 2006 and filed this federal-court action against the same defendants two months later.Before attempting to serve Spirits of Hope and Ms. Musgrove with the federal summons and complaint, Ms. Hukill's counsel contacted the lawyer who represented them in the state-court action to inquire whether he would accept service on behalf of his clients.Their lawyer responded that his clients would not authorize him to do so.

Ms. Hukill elected to serve Spirits of Hope and Ms. Musgrove by following state law, seeFed.R.Civ.P. 4(e)(1) and 4(h)(1)(A), pursuant to an Oklahoma statute which provides that "[s]ervice by mail shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee."Okla. Stat. tit. 12, § 2004(C)(2)(b).Ms. Hukill mailed both summonses to the Spirits of Hope business address.One summons was addressed to "Pauline Musgrove c/o Spirits of Hope Coalition" and was marked for restricted delivery.Aplt.App.at 76.The other summons was addressed to "Spirits of Hope Coalition c/o Pauline Musgrove" and was not marked for restricted delivery.Id. at 74.At the time of these mailings, Ms. Musgrove was the executive director of Spirits of Hope and its registered agent for service of process, but she did not sign for either delivery.The same person, "L. Vollintine," signed both return receipts.Seeid. at 74, 76.At that time, L. Vollintine was not an employee, officer, board member, or director of, or an agent authorized to receive service of process on behalf of, Spirits of Hope.None of the other defendants who were served by plaintiff were employees, officers, or directors of, or agents authorized to accept service of process for, Spirits of Hope at the time Ms. Hukill filed her complaint or effected service upon them.Seeid. at 71.

After the defendants failed to respond to the complaint, Ms. Hukill moved for default judgment, indicating that Spirits of Hope and Ms. Musgrove had each been served by certified mail.The district court granted the motion and entered judgment against Spirits of Hope, Ms. Musgrove, and the other defaulting defendants,¹ jointly and severally, for more than $100,000.Less than a month later, Spirits of Hope and Ms. Musgrove filed a motion to set aside the default judgment against them under Fed.R.Civ.P. 55(c) and 60(b), contending that the judgment was void because they were never properly served.²They did not allege in their motion that they had not ultimately received the summons and complaint or that they were unaware of the lawsuit.They argued that, under Oklahoma law, statutes prescribing the manner of service must be strictly complied with.Ms. Hukill opposed the motion, asserting that only substantial compliance with the Oklahoma statute was required.

The district court denied defendants' motion to vacate the default judgment, holding that substantial compliance is the proper standard under Oklahoma law.The court focused on the mailing addressed to Ms. Musgrove, which was marked for restricted delivery, as required by the statute.Acknowledging that the post office did not enforce the delivery restriction when it permitted L. Vollintine to accept the mailing and sign the return receipt, the court reasoned that Ms. Hukill substantially complied with the statute.It emphasized defendants' failure to assert that they did not receive the summons and complaint, as well as the evidence that they were aware of the pendency of the lawsuit based on their refusal to allow their counsel to accept service.The district court concluded that service upon Ms. Musgrove individually, and as an officer and service agent for Spirits of Hope, was valid under Oklahoma law because "[m]ore than a reasonable probability exists that defendants had actual notice of the civil action."³Aplt.App.at 104.Ms. Musgrove and Spirits of Hope filed a timely appeal of the district court's ruling.

Standards of Review

We generally review a district court's denial of a motion to set aside a default judgment under Rules 55(c)⁴and60(b) for an abuse of discretion.United States v. Timbers Preserve, Routt County, Colo.,999 F.2d 452, 454(10th Cir.1993).But we apply a different standard of review to rulings under Rule 60(b)(4), which permits a court to relieve a party from a final judgment that is void.Where Rule 60(b)(4) is properly invoked, "relief is not a discretionary matter; it is mandatory,"Orner v. Shalala,30 F.3d 1307, 1310(10th Cir.1994)(quotation omitted), and, accordingly, our review is de novo, seeWilmer v. Bd. of County Comm'rs,69 F.3d 406, 409(10th Cir.1995).

In this case our decision turns on the application of Oklahoma law, which we also construe de novo.SeeCooper v. Cent. & Sw. Servs.,271 F.3d 1247, 1251(10th Cir.2001);see alsoBurnham v. Humphrey Hospitality Reit Trust, Inc.,403 F.3d 709, 715-16(10th Cir.2005)(applying Kansas law to determine whether service of corporation under Rule 4(h)(1)(A) substantially complied with state law);Tex. W. Fin. Corp. v. Edwards,797 F.2d 902, 905-06(10th Cir.1986)(applying Texas law to determine whether service of individual strictly complied with state long-arm statute).We must "ascertain and apply Oklahoma law with the objective that the result obtained in federal court should be the result that would be reached in an Oklahoma court.In so doing, we must apply the most recent statement of state law by the state's highest court."Cooper,271 F.3d at 1251(citation and quotations omitted).

Discussion

"[A] default judgment in a civil case is void if there is no personal jurisdiction over the defendant."United States v. Bigford,365 F.3d 859, 865(10th Cir.2004)(emphasis and quotation omitted).And "service of process [under Fed.R.Civ.P. 4] provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the party served."Okla. Radio Assocs. v. F.D.I.C.,969 F.2d 940, 943(10th Cir.1992).Rule 4 permits service of a summons and complaint upon an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made."Fed.R.Civ.P. 4(e)(1).The same method may be used to serve a corporation.Id.at 4(h)(1)(A).

Here, Ms. Hukill chose to serve Spirits of Hope and Ms. Musgrove by certified mail pursuant to Okla. Stat. tit. 12, § 2004(C)(2).As we have noted, § 2004(C)(2)(b) requires such service to be sent "by certified mail, return receipt requested and delivery restricted to the addressee."Section 2004(C)(2)(c) provides further that, with respect to an individual, "[a]cceptance or refusal of service by mail by a person who is fifteen (15) years of age or older who resides at the defendant's dwelling house or usual place of abode shall constitute acceptance or refusal by the party addressed."Id.For service upon a corporation, "acceptance or refusal by any officer or by any employee of the registered office or principal place of business who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed."Id.⁵

Defendants contend that Ms. Hukill's attempted service upon them failed to comply with the Oklahoma statutory requirements in several respects.As to service on Ms. Musgrove, they argue that (1)plaintiff failed to mail the summons and complaint to her house or usual place of abode and (2) although the mailing was sent with delivery restricted to the addressee, it was not received by Ms. Musgrove herself, but was accepted by another person not residing at her dwelling house or abode.As to service on Spirits of Hope, they assert that (1) the mailing was not sent with delivery restricted to the addressee and (2) it was not accepted by an officer or an employee authorized to or who regularly receives certified mail.Defendants contend further that Ms. Hukill knew or should have known that L. Vollintine was not authorized to accept service for Ms. Musgrove or Spirits of Hope, yet plaintiff represented to the court that service upon them was proper.

We agree with defendants' contentions regarding noncompliance with the statutory requirements, with one exception.We reject defendants' assertion...