953 F.

2d 21
21 Fed.R.Serv.3d 1259

PRECISION ETCHINGS & FINDINGS, INC., Plaintiff,

Appellee,
v.
LGP GEM, LTD., Defendant, Appellee,
Maurice C. Feiger, Defendant, Appellant.
PRECISION ETCHINGS & FINDINGS, INC., Plaintiff,
Appellee,
v.
LGP GEM, LTD., Defendant, Appellee,
Maurice C. Feiger, Defendant, Appellant.
Nos. 90-1798, 91-1277.

United States Court of Appeals,

First Circuit.
Heard Sept. 11, 1991.
Decided Jan. 9, 1992.

Harold E. Krause, for defendant, appellant, third-party defendant.

Richard D. Boriskin with whom Markoff & Boriskin was on brief, for
defendant, appellee, third-party plaintiff.
Before TORRUELLA, Circuit Judge, TIMBERS, Senior Circuit Judge,*
and CYR, Circuit Judge.
CYR, Circuit Judge.

This appeal concerns the validity of a default judgment entered by the district
court notwithstanding a defect in the service of process which allegedly
deprived the court of personal jurisdiction over the defendant-appellant.
Precision Etchings & Findings, Inc. brought the present action in the United
States District Court for the District of Rhode Island against LGP Gem, Ltd.
("LGP"). LGP filed a third party complaint against defendant-appellant Maurice

Feiger. The third party complaint and summons were addressed to Feiger by
certified mail, return receipt requested, at a Brooklyn, New York, street address,
rather than to the particular apartment in which Feiger resided. The return
receipt indicates that service was made upon an occupant of another apartment
in the same apartment building. Default was entered against Feiger in April
1990, after he failed to answer LGP's complaint.
2

On June 4, 1990, Feiger's New York counsel filed a motion to vacate the
default, alleging insufficient service of process. Although New York counsel
attempted to appear in behalf of Feiger before the United States Magistrate
Judge at the June 4 hearing on LGP's claim for damages, he was not permitted
to do so because Feiger had not retained local counsel as required by Rhode
Island Local Rule 5(b). Without addressing Feiger's motion to set aside the
default, the magistrate judge made proposed findings of fact and recommended
the entry of a default judgment against Feiger. The district court adopted the
proposed findings and the disposition recommended by the magistrate judge.
Neither the magistrate judge nor the district court addressed Feiger's June 4
motion to set aside the default on the ground of insufficient service of process.

On July 26, 1990, Feiger moved to vacate the default judgment, once again on
the ground that he had never been properly served with process. Following a
hearing, the motion to vacate was denied by the magistrate judge on the ground
that Feiger "had sufficient and timely knowledge of the Third Party Complaint
filed against him." Feiger promptly filed objections to the magistrate judge's
recommended findings and disposition submitted by the magistrate judge. See
28 U.S.C. 636(b)(1)(B).

The district court determined that Feiger had actual notice of the third party
complaint, notwithstanding the fact that the return receipt evidencing service of
the summons and third party complaint appeared to have been signed by an
occupant of another apartment in the three-apartment building where Feiger
resided. The district court accepted the magistrate judge's recommendation and
denied the motion to vacate the default judgment, apparently on the basis that
actual notice provided a sufficient basis for the exercise of personal jurisdiction
over Feiger.1 Finally, the district court denied Feiger's postjudgment motion to
set aside the default judgment and Feiger appealed.

A default judgment entered by a court which lacks jurisdiction over the person
of the defendant is void, General Contracting & Trading Co. v. Interpole, Inc.,
940 F.2d 20, 21 n. 1 (1st Cir.1991), and may be set aside at any time pursuant
to Fed.R.Civ.P. 60(b)(4). See generally 11 C. Wright & A. Miller, Federal
Practice & Procedure, 2862 (1973). Personal jurisdiction is established either

by proper service of process, see, e.g., Jardines Bacata, Ltd. v. Diaz-Marquez,

878 F.2d 1555, 1559 (1st Cir.1989) ("[i]n the ordinary course, the district court
acquires jurisdiction over a defendant only by service of process"), or by the
defendant's waiver of any defect in the service of process, see, e.g., General
Contracting & Trading Co., 940 F.2d at 22 (personal jurisdiction may be
acquired by consent or implied from conduct).
6

LGP elected to attempt service of process upon Feiger pursuant to Fed.R.Civ.P.

4(c)(2)(C), in accordance with "the law of the State in which the district court is
held." In this case, Rhode Island District Court Rule of Civil Procedure 4(d)(1),
which is based on Fed.R.Civ.P. 4(d)(1), see Plushner v. Mills, 429 A.2d 444,
445 (R.I.1981), required service:

7
[u]pon
an individual other than an incompetent person by delivering a copy of the
summons and complaint to him personally or by leaving copies thereof at his
dwelling house or usual place of abode with some person of suitable age and
discretion then residing therein ...
8

Dist.R.Civ.P. 4(d)(1) (emphasis added).

The Rhode Island service of process requirements were not met in the instant
case since the return receipt indicates that the summons and complaint were
neither delivered to Feiger "personally" nor "at his dwelling house or usual
place of abode." Id. Instead, as the district court noted, the return receipt
indicates, at best, that the summons and complaint were delivered to an
occupant of a different apartment at the same street address where Feiger's
apartment is located. LGP contends, nonetheless, that actual notice of the third
party action was sufficient under Rhode Island law to support the district court's
exercise of personal jurisdiction over Feiger. The precise issue presented
appears not to have been addressed by the Rhode Island courts.

10

The Supreme Court of Rhode Island has "emphasized the principle that
legislative enactments relating to service of process are to be followed and
construed strictly, since jurisdiction of the court over the person of the
defendant is dependent upon proper service having been made." Plushner, 429
A.2d at 445-446, quoting Barthlein v. Ellis, 112 R.I. 646, 314 A.2d 426, 427
(1974). "In construing [service of process] rules it has been [the Rhode Island]
practice to look for guidance in the precedents of the federal courts, upon
whose rules those of the [Rhode Island courts] are closely patterned." Id. at
446, quoting Nocera v. Lembo, 111 R.I. 17, 298 A.2d 800, 803 (1973). When
the defendant has received actual notice of the action, the Rhode Island courts,
in conformity with the federal practice, have determined that service of process

requirements are to be "broadly interpreted," id. (citing federal cases), provided

the interpretation is "a natural rather than an artificial one...." Id. quoting
Blackhawk Heating & Plumbing Co. v. Turner, 50 F.R.D. 144, 145
(D.Ariz.1970).
11

Neither federal precedent nor Rhode Island caselaw supports LGP's contention
that actual notice of the filing of the third party complaint was sufficient to
confer personal jurisdiction in these circumstances. The federal courts have
made it abundantly clear that actual notice itself, without more, is insufficient
to satisfy the requirements of Fed.R.Civ.P. 4(d)(1). See, e.g., EchevarriaGonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir.1988) ("[a]ctual notice
and simply naming the person in the caption of the complaint is insufficient to
subject a defendant to the jurisdiction of the district court"); see also MidContinent Wood Products, Inc. v. Harris, 936 F.2d 297, 301 (7th Cir.1991)
(citing cases). Although "minor" formal defects are excusable provided actual
notice has been accomplished, see, e.g., Sanderford v. Prudential Ins. Co., 902
F.2d 897, 899 (11th Cir.1990) (district court not deprived of in personam
jurisdiction by failure to include return date for responsive pleading in duly
served summons), the rule nevertheless must be accorded at least substantial
compliance, see, e.g., Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th
Cir.1987) (requiring "substantial compliance" with rule 4(d)(1)); Zuckerman v.
McCulley, 7 F.R.D. 739, 741 (E.D.Mo.1947) ("[a]s we read the cases,
substantial compliance with the Rules prescribing manner of service is
required") (emphasis added) (service on janitor of building in which defendant
resided not substantial compliance). It has been held directly that delivery of
process to a different apartment in the same building is not sufficient service. Di
Leo v. Shin Shu, 30 F.R.D. 56 (S.D.N.Y.1961) (service on daughter of
defendant who resided in separate apartment not sufficient).

12

Neither the cases cited by LGP, nor any we have discovered, indicate that
actual notice would suffice to cure the defect in the manner of service effected
on Feiger. In Plushner v. Mills, 429 A.2d at 446, the Rhode Island Supreme
Court found that "actual notice" constituted substantial compliance where
service of process was effected by delivery to defendant's daughter while she
was at the defendant's residence, even though the daughter maintained a
separate residence at the time. The court noted that the daughter possessed a
key to the defendant's residence and had been placed in charge of the dwelling
during her father's absence. Id. Since the court found that the daughter,
therefore, was a "trusted member of defendant's household and that a
substantial nexus existed between her and the defendant," it decided that she
"could be considered to be 'residing therein' under a broad interpretation of Rule
4(d)(1), and such an interpretation is allowed when defendant receives actual

notice." Id. (emphasis added). The undeveloped record in the instant case, on
the other hand, simply cannot support a similarly "broad interpretation," since
no evidence was presented that the person to whom process was delivered was
a member of Feiger's household, his landlord, or a person having any
"substantial connection" with him.2
13

Federal precedent and Rhode Island caselaw indicate only that the specific
rules governing the precise manner of effecting service of process are to be
given "broad interpretation" when the defendant has received "actual notice."
Neither source of authority suggests that "actual notice" itself suffices, absent
substantial compliance with the manner of service prescribed by rule. The
present record does not enable a determination that there was substantial
compliance with rule 4(d)(1). Therefore, unless Feiger waived any defect in the
service of process, the case must be remanded for further factfinding bearing on
the issue of substantial compliance.

14

Unlike the absence of subject matter jurisdiction, the defense of lack of

personal jurisdiction may be waived by express submission, conduct, or failure
to assert the defense. See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308
U.S. 165, 168, 60 S.Ct. 153, 154-55, 84 L.Ed. 167 (1939); General Contracting
& Trading Co., 940 F.2d at 22; Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994,
996 (1st Cir.1983). As Feiger assiduously attempted to assert the defense
before the district court, we find no waiver.

15

Feiger first raised the defense by motion on June 4, 1990, the day of the
scheduled hearing on LGP's claim for damages, thereby precluding waiver
under Fed.R.Civ.P. 12(h)(1). See Rogue v. United States, 857 F.2d 20, 21 (1st
Cir.1988); Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir.1983). At no
time did Feiger expressly submit to the exercise of jurisdiction by the district
court. Moreover, Feiger's conduct did not constitute participation in, or
encouragement of, the district court proceedings so as to amount to waiver by
conduct. See United States use of Combustion Systems Sales, Inc. v. Eastern
Metal Products & Fabricators, Inc., 112 F.R.D. 685, 687 (M.D.N.C.1986)
(collecting cases and concluding that though cases present "markedly different
situations, [they] have the common factors of dilatoriness and participation in,
or encouragement of, judicial proceedings"); see also General Contracting &
Trading Co., 940 F.2d at 22 (collecting cases). Feiger did not participate in any
hearing,3 see e.g., Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc., 376
F.2d 543, 547 (3d Cir.1967) (finding waiver where defendant attended
preliminary injunction hearing), seek affirmative relief, see, e.g., General
Contracting & Trading Co., 940 F.2d at 23-24 (bringing independent action
arising out of same transactional core constitutes implied submission), or lend

an appearance of submission through extended inaction, see, e.g., Marcial Ucin,

723 F.2d at 997 (waiver found after defendant filed appearance, attended
depositions, and waited four years before raising defense).
16

Feiger justly cannot be deemed to have submitted to the jurisdiction of the

district court by filing objections to the magistrate judge's proposed findings
and recommended disposition as was required by 28 U.S.C. 636(b)(1) and
Fed.R.Civ.P. 72(b) in order to preserve his right to de novo review of the
recommended disposition. The magistrate judge did not address Feiger's
specific challenge to the sufficiency of service of process, nor determine the
manner of service sufficient under Rhode Island law. Thus, Feiger surely would
have been found to have waived the right to de novo review by the district court
had he not objected to the recommended disposition as required by section
636(b)(1) and rule 72(b). See Park Motor Mart, Inc. v. Ford Motor Co., 616
F.2d 603 (1st Cir.1980). In these circumstances, Feiger's objections impliedly
reaffirmed his consistent opposition to the district court's exercise of personal
jurisdiction before the magistrate judge.4 It would represent a distortion of the
waiver doctrine to construe Feiger's objections to the proposed findings and
recommended disposition as a waiver of the right to contest personal
jurisdiction, especially since Feiger vigorously pursued the service of process
issue before the magistrate judge from the outset and the magistrate judge
made no specific finding that the manner of service effected on Feiger was
sufficient. Rather, by raising the service of process issue in the June 4 and July
26 motions filed with the magistrate judge and again in his post-judgment
motion to the district court under rule 60(b)(4), Feiger promptly, plainly and
consistently preserved his personal jurisdiction defense based on defective
service of process.

17

The default judgment is vacated and the case is remanded to the district court
for further proceedings consistent with this opinion; costs to appellant.

Of the Second Circuit, sitting by designation

Neither the magistrate judge nor the district court discussed the legal
requirements of service of process

Moreover, the Plushner court relied in part on a federal case, Nowell v. Nowell,
384 F.2d 951 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19
L.Ed.2d 1150 (1968), which held that the federal service of process rule was
satisfied by service upon the defendant's landlady, due to the "substantial
nexus" between landlord and tenant. In Plushner, the Rhode Island Supreme

Court explicitly called attention to the fact that Nowell had distinguished
between service upon the landlord and "service upon a neighboring tenant ...
[because] the substantial nexus that exists between tenant and landlord does not
exist between tenants themselves." Plushner, 429 A.2d at 446, quoting Nowell,
384 F.2d at 953
Similarly, Lavey v. Lavey, 551 A.2d 692 (R.I.1988), another case in which the
defendant was found to have had "actual notice" of the lawsuit, provides no
support for LGP's position. The Lavey court found that a residence, at which
the defendant had dinner daily and occasionally showered, watched television
and picked up mail, could be included within a broad interpretation of
"dwelling house or ... usual place of abode...." Id. at 694-695. The present
record is insufficiently developed to support such a finding.
3

Feiger's unsuccessful attempt to participate in the June 4 hearing on LGP's

claim for damages was not a waiver, since New York counsel stated explicitly
that he intended to challenge the sufficiency of service of process at the
hearing. See Marcial Ucin, 723 F.2d at 997 ("general appearance by a
defendant does not constitute a waiver of the defense of lack of jurisdiction
over the person")

When Feiger filed objections to the magistrate judge's proposed findings and
recommended disposition, he requested that the district court "conduct a new
hearing with all parties present and represented so that the facts in this very
complicated commercial transaction can be brought before the Court and an
appropriate decision made." In the circumstances of the present case, Feiger's
statement did not "unequivocally show an intention to submit to the district
court's jurisdiction." Jardines Bacata, Ltd., 878 F.2d at 1559 (waiver of right to
challenge personal jurisdiction may be found only if there is no other
reasonable explanation of the conduct). On June 4, Feiger had challenged the
sufficiency of service of process; he reasserted the same defense on July 26.
There was no unequivocal showing of an intention to submit to the jurisdiction
of the district court