Trustees of Cent. Laborers' Welfare Fund v. Lowery

• Decision Date: 15 February 1991
• Docket Number: No. 89-3710,89-3710
• Parties: 118 Lab.Cas. P 10,603, 19 Fed.R.Serv.3d 296 TRUSTEES OF CENTRAL LABORERS' WELFARE FUND, et al., Plaintiffs-Appellees, v. Keith and Dennis LOWERY, Individually and Doing Business as Lowery Brothers Construction Co., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 731

924 F.2d 731

118 Lab.Cas. P 10,603, 19 Fed.R.Serv.3d 296

TRUSTEES OF CENTRAL LABORERS' WELFARE FUND, et al Plaintiffs-Appellees, v. Keith and Dennis LOWERY, Individually and Doing Business as Lowery Brothers Construction Co., Defendants-Appellants.

No. 89-3710.

United States Court of Appeals Seventh Circuit.

Argued Dec. 18, 1990.

Decided Feb. 15, 1991.

Julie L. Galassi, David W. Stuckel, Harvey & Stuckel, Peoria, Ill., for plaintiffs-appellees.

John A. Betts, Marseilles, Ill., for defendants-appellants.

Before BAUER, Chief Judge, CUMMINGS, and FLAUM, Circuit Judges.

PER CURIAM.

Defendants-appellants Keith and Dennis Lowery, individually and doing business as Lowery Brothers Construction Company, appeal from the district court's order denying their motion to vacate a default judgment. ¹ The lower court denied the motion on grounds that the defendants had already waived their claim of defective service of process, the only argument advanced in support of the motion. We affirm.

I.

On November 3, 1982, the Trustees of three pension funds filed suit against the defendants seeking delinquent contributions and liquidated damages under Section 301 of the Labor-Management Relations Act and Section 502 of ERISA. Seven months later the plaintiffs filed a motion for entry of default judgment based on the defendants' failure to appear or file an answer to the complaint. The court granted that motion and entered a judgment of default on June 22, 1983, pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. On September 28, 1989, the defendants moved to vacate the judgment on grounds that the plaintiffs' failure to properly serve them at the beginning of the lawsuit in 1982 rendered the judgment void. It is undisputed that at no time prior to entry of judgment did the defendants appear or otherwise file documents with the court.

The district court judge denied the motion to set aside the judgment and specifically found "some indication in the record" of service, rejecting the defendants' argument to the contrary. ² The court went on to note, however, that an objection to service of process must be made in a timely fashion or be waived under Rule 12(h)(1). In this case, the defendants participated in post-judgment proceedings almost six years during which time they never raised a question as to the adequacy of the original service. The district court judge held that the defendants waived this argument by failing to assert it in a timely motion before filing the motion to vacate. Although the court did not identify at what point during the proceedings this objection should have been raised, the court specifically determined that by September, 1989, when the defendants filed the Rule 60(b) motion, the time had long since passed.

The defendants focus their attack on the lower court's finding of waiver, contending that a judgment void at its inception must be set aside regardless of subsequent events. The defendants further argue, assumably in the alternative, that if their conduct following judgment may be examined for evidence of waiver, the conduct here does not support such a finding. Although the defendants concede they "clearly participated in the post-judgment proceedings," they argue that this participation was neither voluntary nor did it ever involve a defensive move within the meaning of Rule 12(h)(1).

II.

A party may waive a defense of insufficiency of process by failing to assert it seasonably in a motion or their first responsive pleading. See Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 663 (7th Cir.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1303, 94 L.Ed.2d 158 (1987). That defense, like the other privileged defenses referred to in Rule 12(h)(1), may be waived by "formal submission in a cause, or by submission through conduct." Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 996-97 (1st Cir.1983) (citing Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 155, 84 L.Ed. 167 (1939)). A party need not actually file an answer or motion before waiver is found. Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278, 281 (5th Cir.1987) (conduct of counsel may rise to level of voluntary appearance resulting in waiver of defense of insufficiency of service). Where a defendant leads a plaintiff to believe that service is adequate and that no such defense will be interposed, for example, courts have not hesitated to conclude that the defense is waived. See, e.g., Broadcast Music, 811 F.2d at 281; Norlock v. City of Garland, 768 F.2d 654, 657 (5th Cir.1985); R. Clinton Constr. Co. v. Bryant & Reaves, Inc., 442 F.Supp. 838, 848-49 (N.D.Miss.1977).

The Lowerys rely primarily on Seman v. Pittsburgh Brewing Co., 25 F.R.D. 209 (N.D.Ohio 1960), for the proposition that waiver can never be based on post-judgment conduct. Their reliance on Seman is, however, misplaced. The conduct at issue in that case occurred before default was entered. Additionally, the motion to quash service of process was the first contact the defaulting defendant had with the court. The defendants here are in a fundamentally different position. As set forth below, the Lowerys did not attack the judgment within any reasonable time after having obtained actual notice of the default judgment from their numerous contacts with the court. Instead, they appeared, albeit grudgingly, and led both the court and the plaintiffs to believe that a valid judgment had been obtained against them.

This court has, in fact, found waiver where the conduct relied upon by the district court occurred after entry of default. In Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398 (7th Cir.1986), the plaintiff obtained a default judgment against two defendants based on their failure to appear or otherwise defend. Juliano, one of the defendants, originally attacked the default judgment as void for lack of personal jurisdiction. After the district court denied that motion Juliano filed a motion to reconsider alleging, as an additional ground for setting aside the judgment, that the original service was defective. The district court found, and this court agreed, that Juliano waived this ground based on its failure to raise it in the first Rule 60(b) motion. Id. at 405. See also J. Slotnik Co. v. Clemco Industries, 127 F.R.D. 435, 440-41 (D.Mass.1989) (failure to raise challenge to service in first defensive move after entry of default results in waiver of that defense under Rule 12(h)(1)). Just as a defendant may waive a defense of improper service under Rule 12(b)(5) before entry of judgment, so too can a defendant waive the defense at a later time given the appropriate circumstances. Having reached this conclusion, we must now decide whether the district court correctly determined that the defendants did so.

As stated previously, waiver may be found as a result of a party's conduct as well as by a failure to raise the defense in the defendant's first pleading. Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 281 (5th Cir.1987). Because it is undisputed that no formal pleading was filed before the motion to vacate was filed in 1989 we focus our attention on the nature and extent of the defendants' contact with the court.

The record amply supports the court's finding of waiver. On several occasions both Dennis and Keith Lowery submitted testimony or statements to the court regarding the default without raising a question as to service. For example, Dennis appeared and testified to his financial ability to satisfy the judgment at a January 5, 1984, hearing before Judge Mihm. Dennis again appeared and testified for two days before Magistrate Kauffman in February, 1987, in response to a citation to discover assets. Although Dennis' attorney was present for the duration of both hearings neither questioned the propriety of the default. In fact John Betts, the defendants' attorney, acknowledged at the hearing in 1984 that the defense he would interpose to the original charge, if permitted, would be a denial of the allegations contained in the complaint. Likewise, during the 1987 hearing Betts contacted opposing counsel to discuss the progress of the proceeding without referring to any potential problem regarding service.

Although Keith Lowery never testified, he did file with the court a response to a citation to discover assets on April 2, 1987. In that sworn statement, Keith averred that he had no knowledge of the whereabouts of the company's books or other records. Keith did not suggest in his filing...