In re: Richard Domingo

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: December 26, 2017
• Docket: NV-17-1135-BHTa
• Status: Unpublished

Opinion

FILED DEC 26 2017 SUSAN M. SPRAUL, CLERK 1 NOT FOR PUBLICATION U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT 2 3 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT 4 5 In re: ) BAP No. NV-17-1135-BHTa ) 6 RICHARD DOMINGO, ) Bk. No. 15-14153-ABL ) 7 Debtor. ) Adv. No. 15-01178-ABL ) 8 ) RICHARD DOMINGO, ) 9 ) Appellant, ) 10 ) v. ) M E M O R A N D U M1 11 ) VICTOR O. PORTUGUES-SANTANA, ) 12 ) Appellee. ) 13 ______________________________) 14 Submitted Without Argument on December 1, 2017, 15 Filed - December 26, 2017 16 Appeal from the United States Bankruptcy Court for the District of Nevada 17 Honorable August B. Landis, Bankruptcy Judge, Presiding 18 19 Appearances: Joseph H. Reinhardt on brief for appellant, Richard Domingo.2 20 21 Before: BRAND, HOULE3 and TAYLOR, Bankruptcy Judges. 22 23 1 This disposition is not appropriate for publication. 24 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th 25 Cir. BAP Rule 8024-1. 2 26 Appellee Victor O. Portugues-Santana did not file a brief or otherwise appear in this appeal. 27 3 Hon. Mark D. Houle, Bankruptcy Judge for the Central 28 District of California, sitting by designation. 1 Chapter 74 debtor Richard Domingo appeals a judgment 2 determining that a prepetition debt owed to Victor O. Portugues- 3 Santana ("Portugues") was excepted from Domingo's discharge under 4 § 523(a)(2)(A) on the basis of issue preclusion after trial. In 5 addition, Domingo appeals: (1) the order granting his motion to 6 dismiss the original complaint under Civil Rule 12(b)(5) due to 7 Portugues's failure to comply with Civil Rule 4(m) but with leave 8 to amend, which allowed Portugues to file an amended complaint 9 after the statute of limitations under Rule 4007(c) had expired; 10 (2) the orders denying the motion to dismiss the amended complaint 11 and reconsideration of that order; and (3) the order denying an 12 additional motion to dismiss the amended complaint. 13 We conclude that the dischargeability judgment is void 14 because the bankruptcy court lacked personal jurisdiction over 15 Domingo. Accordingly, the judgment is VACATED. 16 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 17 A. Prepetition events 18 Domingo is a 76-year-old veteran who now lives on a military 19 pension, social security benefits, and wages from various part- 20 time jobs. Portugues resides in Puerto Rico, where he operates a 21 Heineken beer distributorship and Zen Spa, an upscale spa 22 business. 23 In 2006, Portugues decided to make a foray into the women's 24 clothing retail industry by opening a Victoria's Secret franchise 25 in Puerto Rico. To that end, he sought the assistance of Domingo, 26 4 Unless specified otherwise, all chapter, code and rule 27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The 28 Federal Rules of Civil Procedure are referred to as "Civil Rules."

-2- 1 who at that time was a business broker and conducted his business 2 operations through his entity, Rekomdiv International, Inc., in 3 Washington D.C. ("Rekomdiv"). Domingo also had a relationship 4 with former U.S. Senator, Birch Bayh, as a special assistant to 5 Bayh. At the time, Bayh was a partner at the Washington D.C. law 6 firm of Venable, LLC and a board member of a large, national 7 shopping mall owner. 8 Domingo recommended that Portugues work with Bayh to assist 9 him in establishing a business relationship with Victoria's 10 Secret. Domingo explained to Portugues that "Victoria's Secret 11 owed many favors to Bayh" so "this was, for all purposes, a done 12 deal." Domingo told Portugues that he had to retain both the 13 Venable firm and Rekomdiv to complete the deal. Portugues met 14 with Domingo and Bayh in Washington D.C. to discuss the 15 establishment of a Victoria's Secret franchise in Puerto Rico to 16 be operated by Portugues. 17 Portugues paid a $400,000 retainer fee to Venable and a 18 $100,000 business broker's fee to Rekomdiv. Portugues later paid 19 another $125,000 to Rekomdiv in pursuit of the business venture. 20 After entering into the retainer agreements and after the money 21 had flowed from Portugues to Rekomdiv, Portugues was advised that 22 no Victoria's Secret franchise could be established in Puerto Rico 23 because Victoria's Secret did not offer store franchises. 24 Nevertheless, Domingo assured Portugues that other business 25 opportunities were available aside from Victoria's Secret that 26 could be pursued on his behalf, including a women's clothing store 27 franchise called Mango or establishing franchises for Zen Spa. No 28 other business opportunities panned out for Portugues.

-3- 1 Portugues filed suit against Domingo and Rekomdiv in the 2 United States District Court for the District of Puerto Rico, 3 alleging that Domingo's false representations about the 4 availability of a Victoria's Secret franchise fraudulently induced 5 him to enter into the retainer agreements with Venable and 6 Rekomdiv. The alleged claim, known as "dolo" in Puerto Rico, is 7 essentially a claim for "fraud in the inducement."5 8 Following a seven-day trial, the jury returned its verdict 9 against Domingo and Rekomdiv for "dolo." The jury assessed 10 damages in favor of Portugues and against Domingo and Rekomdiv for 11 $625,000, the full amount of money Portugues had paid toward the 12 Victoria's Secret venture. 13 On April 28, 2010, the District Court entered a judgment in 14 accordance with the jury's verdict ("Puerto Rico Judgment"). 15 Domingo appealed the Puerto Rico Judgment to the First Circuit 16 Court of Appeals, which affirmed the dolo claim and Domingo's and 17 Rekomdiv's liability to Portugues. Portugues-Santana v. Rekomdiv 18 Int'l, Inc., 657 F.3d 56 (1st Cir. 2011). 19 B. Postpetition events 20 1. The original dischargeability complaint 21 After Domingo filed his chapter 7 bankruptcy case, Portugues 22 filed a timely dischargeability complaint on October 21, 2016, 23 alleging that the Puerto Rico Judgment was nondischargeable under 24 § 523(a)(2)(A). 25 26 5 "Dolo" can take two forms: (1) dolo in the formation of a contract; or (2) dolo in the performance of contractual 27 obligations. Domingo and Rekomdiv were found liable for dolo in the formation of contracts between Portugues and Rekomdiv and 28 Venable.

-4- 1 The bankruptcy court issued a summons on October 21, 2015. 2 Copies of the summons and complaint were served on Domingo's 3 bankruptcy counsel at his Las Vegas office by certified mail on 4 October 29, 2015. Domingo's bankruptcy attorney retired just two 5 days later on October 31, 2015. 6 Despite not being served with the summons and complaint, 7 Domingo, with the assistance of adversary counsel, filed a timely 8 answer to the complaint. In his affirmative defenses, Domingo 9 asserted insufficient service of process. He raised this same 10 affirmative defense in his later-filed amended answer. 11 The 120-day period for Portugues to serve Domingo with the 12 dischargeability complaint expired February 18, 2016. 13 2. Motion to dismiss the original complaint 14 On February 22, 2016, Domingo moved to dismiss Portugues's 15 complaint under Civil Rule 12(b)(5)6 for insufficient service of 16 process and Civil Rule 12(b)(6) for failure to state a claim upon 17 which relief could be granted (the "Motion to Dismiss"). Domingo 18 maintained that service failed because Portugues did not serve him 19 with the summons and complaint within the 120 days prescribed 20 under Civil Rule 4(m)7; mailing them to his former bankruptcy 21 6 22 Civil Rule 12(b)(5), applicable here by Rule 7012, provides: 23 (b) Every defense to a claim for relief in any pleading must 24 be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: 25 (5) insufficient service of process[.] 26 7 Civil Rule 4(m) in effect at the time and applicable here 27 by Rule 7004(a) stated: 28 (continued...)

-5- 1 counsel was insufficient, especially since no evidence established 2 that Domingo consented to such service. Domingo further contended 3 that no good cause existed to extend the service deadline. 4 Domingo maintained that the dischargeability complaint had to be 5 dismissed "with prejudice" because the 60-day statute of 6 limitations under Rule 4007(c) had run on October 26, 2015. 7 Alternatively, Domingo contended that dismissal was proper because 8 the complaint failed to plead a claim under § 523(a)(2)(A). 9 In opposition, Portugues argued that service of the summons 10 and complaint was effective because it was made on Domingo's 11 former bankruptcy counsel within the 120 days. 12 In its oral ruling, the bankruptcy court granted Domingo's 13 Motion to Dismiss under Civil Rule 12(b)(5) for insufficient 14 service of process, because Domingo had not been served with the 15 summons and complaint within the 120-day period as required under 16 Civil Rule 4(m). The court also granted Domingo's Motion to 17 Dismiss under Civil Rule 12(b)(6), because the dischargeability 18 complaint failed to state sufficient facts to support a claim 19 under § 523(a)(2)(A). However, the court dismissed the complaint 20 21 7 (...continued) Time Limit for Service. If a defendant is not served within 22 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss 23 the action without prejudice against that defendant or order that service be made within a specified time. But if the 24 plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This 25 subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1). 26 The 120-day service rule has since been reduced to 90 days, 27 effective December 1, 2015. However, the bankruptcy court applied the former rule because the adversary proceeding was commenced on 28 October 21, 2015. We agree that the former rule applied here.

-6- 1 "with leave to amend" and to allow completion of service of the 2 amended complaint within a reasonable time. The court did not 3 address the fact that the 60-day period within which to file 4 Portugues's complaint under Rule 4007(c) had expired. 5 The order for the Motion to Dismiss (the "May 31 Order") 6 provided that the motion was granted, without prejudice, under 7 Civil Rules 12(b)(5) & (6) and that Portugues could file an 8 amended complaint within 14 days from the date of entry of the 9 order. In addition, the amended complaint had to be "personally 10 served" on Domingo within 28 days from the date of entry of the 11 order.8 12 3. The amended dischargeability complaint and related motions to reconsider and to dismiss 13 14 Portugues timely filed an amended dischargeability complaint, 15 again alleging that the Puerto Rico Judgment was nondischargeable 16 under § 523(a)(2)(A). The bankruptcy court issued a summons for 17 the amended complaint on June 14, 2016, which expired on June 21, 18 2016. Rule 7004(e). 19 The process server for Portugues filed a return of service 20 and affidavit indicating that she had attempted to serve Domingo 21 personally at his last known address at least five times between 22 June 7 and June 16 to no avail.9 Ultimately, a copy of the 23 24 8 The May 31 Order was later amended on June 22, 2016, to 25 correct the error stating that Domingo's counsel had appeared for Portugues at the hearing on the Motion to Dismiss. All other 26 terms of the order remained unchanged. 27 9 Curiously, the process server attempted to serve Domingo three times before the court even issued the summons, on June 7, 9 28 and 11.

-7- 1 summons and amended complaint was mailed to Domingo on June 27, 2 2016, six days after the summons had expired. 3 In his answer to the amended complaint, Domingo challenged 4 the service of process, arguing that service of the amended 5 complaint with an expired summons was ineffective. 6 Prior to filing his answer to the amended complaint, Domingo 7 moved to dismiss the amended complaint on the basis that he was 8 not "personally served" with the summons and complaint by the 9 deadline of June 28, 2016, as instructed in the May 31 Order 10 ("Motion to Dismiss the FAC"). 11 Portugues opposed the Motion to Dismiss the FAC, arguing that 12 timely service on Domingo by mail on June 27, 2016, was acceptable 13 despite the May 31 Order's directive to serve him "personally." 14 In reply, Domingo argued that service by mail was contrary to 15 the May 31 Order and was ineffective because he was served with an 16 invalid summons; the summons expired on June 21, 2016, but he was 17 not served with it until June 28, 2016. 18 The bankruptcy court denied the Motion to Dismiss the FAC, 19 ruling that, by diligently attempting to serve Domingo personally 20 with the summons and amended complaint and eventually completing 21 service on Domingo by mail on June 27, 2016, before the deadline 22 of June 28, 2016, Portugues had complied with the May 31 Order's 23 directive and Rule 7004(b)(2). The court did not address the 24 expired summons issue. 25 Domingo timely moved for reconsideration of the court's order 26 denying the Motion to Dismiss the FAC. He argued that service of 27 the amended complaint was invalid, contrary to what the court had 28 found, because the summons was expired when it was served and no

-8- 1 alias summons had been requested or issued. 2 The bankruptcy court denied the motion to reconsider, stating 3 only that Domingo presented no grounds for reconsideration. 4 Meanwhile, on July 28, 2016, Domingo filed another motion to 5 dismiss the amended dischargeability complaint ("Second Motion to 6 Dismiss the FAC"). This motion was filed as a back-up in case the 7 court was to deny the Motion to Dismiss the FAC, which it later 8 did on September 7. Domingo was now seeking dismissal of the 9 amended complaint on the basis of untimely filing. Domingo argued 10 that the bankruptcy court had abused its discretion by dismissing 11 the original complaint without prejudice and allowing Portugues to 12 file and serve an amended complaint after the 60-day statute of 13 limitations under Rule 4007(c) had run. Domingo argued that such 14 ruling was an impermissible, sua sponte retroactive extension of 15 the 60-day deadline for filing a § 523(c) complaint. 16 The bankruptcy court denied the Second Motion to Dismiss the 17 FAC, noting that it had already considered the issues raised in 18 the motion. 19 4. Trial on the amended complaint and judgment 20 After a one-day trial, the bankruptcy court issued its oral 21 ruling on Portugues's § 523(a)(2)(A) claim. Overall, the court 22 did not find Domingo's testimony credible. Ultimately, the court 23 determined that issue preclusion applied to the Puerto Rico 24 Judgment and found that the dolo claim met each of the elements 25 for a claim under § 523(a)(2)(A). The court entered an order and 26 judgment consistent with its oral ruling. The Puerto Rico 27 Judgment of $625,000 was excepted from Domingo's discharge under 28 § 523(a)(2)(A). Domingo timely appealed.

-9- 1 II. JURISDICTION 2 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 3 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. 4 III. ISSUES 5 1. Did the bankruptcy court's ruling granting the Motion 6 to Dismiss with leave to amend create an impermissible, 7 retroactive extension of the deadline for filing dischargeability 8 complaints under Rules 4007(c) and 9006(b)(3)? 9 2. Did the bankruptcy court err by implicitly ruling that 10 service of the amended complaint on Domingo was sufficient despite 11 the expired summons? 12 3. Did the bankruptcy court err in applying issue preclusion to 13 the Puerto Rico Judgment to determine that the debt was 14 nondischargeable under § 523(a)(2)(A)? 15 IV. STANDARDS OF REVIEW 16 The bankruptcy court's interpretations of the Federal Rules 17 of Civil Procedure and the Bankruptcy Rules are a question of law 18 reviewed de novo. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th 19 Cir. 2003) (Civil Rules); Unioil v. Elledge (In re Unioil, Inc.), 20 962 F.2d 988, 990 (10th Cir. 1992) (Bankruptcy Rules). 21 We review de novo the bankruptcy court’s determination that 22 issue preclusion was available. Plyam v. Precision Dev., LLC 23 (In re Plyam), 530 B.R. 456, 461 (9th Cir. BAP 2015). If issue 24 preclusion was available, we review the bankruptcy court’s 25 application of it for an abuse of discretion. Id. 26 We review for an abuse of discretion the bankruptcy court's 27 decision to deny a reconsideration motion under Civil Rule 59. 28 Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011); Cruz v.

-10- 1 Stein Strauss Tr. # 1361, PDQ Invs., LLC (In re Cruz), 516 B.R. 2 594, 601 (9th Cir. BAP 2014). 3 A bankruptcy court abuses its discretion if it applies the 4 wrong legal standard, misapplies the correct legal standard, or if 5 its factual findings are illogical, implausible, or without 6 support in inferences that may be drawn from the facts in the 7 record. TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 8 832 (9th Cir. 2011). 9 V. DISCUSSION 10 A. The bankruptcy court's ruling granting Portugues leave to amend the original complaint despite dismissal under Civil 11 Rule 12(b)(5) for failure to comply with Civil Rule 4(m) created an impermissible, retroactive extension of the 12 deadline for Portugues to file his dischargeability complaint. 13 14 Portugues's original complaint was timely filed on 15 October 21, 2015, before the October 26, 2015 deadline, but 16 Domingo was not served with the summons and original complaint 17 within the 120-day period prescribed in Civil Rule 4(m). Although 18 Domingo's bankruptcy counsel was timely served by certified mail, 19 the bankruptcy court determined, and we agree, that service solely 20 on Domingo's bankruptcy counsel was insufficient given Rule 21 7004(b)(9).10 Portugues made no further efforts to serve Domingo 22 within the 120 days, even in light of Domingo's timely-filed 23 answer raising the affirmative defense of insufficient service of 24 25 10 Rule 7004(b)(9) provides for service in the instance of an adversary proceeding against the debtor. It provides: 26 (9) Upon the debtor, after a petition has been filed, . . . 27 by mailing a copy of the summons and complaint to the debtor at the address shown in the petition or to such other address 28 as the debtor may designate in a filed writing.

-11- 1 process. 2 Thus, it is undisputed that service of the summons and 3 original complaint was not in compliance with Civil Rule 4(m). 4 That is why the bankruptcy court granted Domingo's Motion to 5 Dismiss under Civil Rule 12(b)(5) and dismissed the complaint, 6 which it was free to do. 7 It is also undisputed that, prior to the expiration of the 8 60-day deadline set forth in Rule 4007(c),11 Portugues never sought 9 an extension of that deadline. Moreover, the bankruptcy court 10 could not extend the deadline sua sponte and certainly could not 11 extend the deadline after it had expired. See Willms v. 12 Sanderson, 723 F.3d 1094, 1100 (9th Cir. 2013). 13 Domingo argues that it was reversible error for the 14 bankruptcy court to dismiss the original complaint "without 15 prejudice." He argues that, because the 60-day statute of 16 limitations under Rule 4007(c) had run prior to the dismissal of 17 the original complaint for failure to comply with Civil Rule 4(m), 18 Portugues was barred from bringing any dischargeability claims 19 against him. Thus, the original complaint should have been 20 dismissed "with prejudice." Domingo argues that when the court 21 entered the May 31 Order with the caveat "without prejudice" and 22 11 Rule 4007(c) provides for an extension of the deadline 23 within which to file a complaint to determine dischargeability of a debt under § 523(c). It provides, in relevant part: 24 On motion of a party in interest, after hearing on notice, 25 the court may for cause extend the time fixed under this subdivision. The motion shall be filed before the time has 26 expired. 27 See also Rule 9006(b)(3), which provides that the court may enlarge the time for taking action under Rule 4007(c), but only to 28 the extent and under the conditions stated in that rule.

-12- 1 granted Portugues leave to amend the complaint, it constituted a 2 sua sponte retroactive extension of the 60-day deadline in 3 violation of Rule 4007(c) and Ninth Circuit law. 4 Domingo's argument that the May 31 Order dismissing the 5 original complaint "without prejudice" was erroneous is not well 6 taken. Civil Rule 4(m) mandates that, if the court dismisses the 7 action for failure to comply with the rule, it must be dismissed 8 "without prejudice." In fact, it would have been error for the 9 bankruptcy court to have dismissed the original complaint "with 10 prejudice" for insufficient service of process. Thomas v. Furness 11 (Pac.) Ltd., 171 F.2d 434, 435 (9th Cir. 1948). This is 12 consistent with the general rule that a dismissal for insufficient 13 service of process under Civil Rule 12(b)(5) is not a dismissal on 14 the merits. 5B Charles A. Wright & Arthur R. Miller, Federal 15 Practice and Procedure § 1353, at 345-46 (3d. ed. 2004). 16 However, we agree with the rest of Domingo's argument. 17 Granting Portugues leave to amend in this case was reversible 18 error. While a Civil Rule 4(m) dismissal is a dismissal without 19 prejudice, a dismissal "without prejudice" does not mean "without 20 consequence." Powell v. Starwalt, 866 F.2d 964, 966 (7th Cir. 21 1989). "The 'without prejudice' condition permits a plaintiff to 22 refile the complaint as if it had never been filed." Vasquez v. 23 N. Cty. Transit Dist., 292 F.3d 1049, 1061 (9th Cir. 2002), as 24 amended (Aug. 7, 2002) (quoting Mendez v. Elliot, 45 F.3d 75, 78 25 (4th Cir. 1995)). A Civil Rule 4(m) dismissal does not, however, 26 give the plaintiff the right to refile without the consequence of 27 time defenses, such as the statute of limitations. Mendez, 28 45 F.3d at 78; Powell, 866 F.2d at 966 (applying former Civil

-13- 1 Rule 4(j)). 2 A plaintiff is precluded from refiling a case that was 3 dismissed without prejudice for failure to perfect service of 4 process where the statute of limitations has run, even if the 5 dismissal was without prejudice. Petrucelli v. Bohringer & 6 Ratzinger, 46 F.3d 1298, 1304 n.6 (3d. Cir. 1995) (applying former 7 Civil Rule 4(j)); Lambert v. United States, 44 F.3d 296, 298 (5th 8 Cir. 1995) (district court's order dismissing plaintiff's suit 9 without prejudice for failure to comply with Civil Rule 4(m) left 10 plaintiff in same position as if the first suit had never been 11 filed, and the second suit filed beyond the statute of limitations 12 was time barred); Powell, 866 F.2d at 966 (applying former Civil 13 Rule 4(j)); Gartin v. Par Pharm. Cos., 561 F. Supp. 2d 670, 682 14 (E.D. Tex. 2007). See also Mann, 324 F.3d at 1091 (failure to 15 serve process within Civil Rule 4(m)'s 120-day period does not 16 affect the tolling of the statute of limitations unless the 17 failure to serve process caused the court to dismiss the action). 18 The 60-day statute of limitations under Rule 4007(c) was 19 tolled when Portugues filed his original complaint on October 21, 20 2015. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th 21 Cir. 2003) (statute of limitations for a suit based on federal law 22 is tolled when complaint is filed per Civil Rule 3, applicable 23 here by Rule 7003). However, once his complaint was dismissed 24 under Civil Rule 12(b)(5) for failure to comply with the service 25 requirements of Civil Rule 4(m), it was as though the original 26 complaint had never been filed and the statute of limitations ran 27 on October 26, 2015. Thus, even though the dismissal was 28 nominally "without prejudice," it was effectively "with prejudice"

-14- 1 because a new action was barred by the statute of limitations. 2 United States v. Kenner Gen. Contractors, Inc., 764 F.2d 707, 709 3 (9th Cir. 1985), superceded by rule as stated in Oyama v. Sheehan 4 (In re Sheehan), 253 F.3d 507, 512 (9th Cir. 2001). 5 Unfortunately, because the bankruptcy court dismissed the 6 original complaint under Civil Rule 12(b)(5) for failure to comply 7 with Civil Rule 4(m), it could not grant Portugues leave to amend 8 the complaint, and its doing so impermissibly extended the statute 9 of limitations deadline in Rule 4007(c). Hence, the amended 10 complaint filed several months after the deadline was time 11 barred.12 12 The service of process issue was brought by Domingo together 13 with a motion to dismiss under Civil Rule 12(b)(6), which is odd 14 procedurally, and confused the issue. If service of the original 15 complaint had been perfected and the matter before the court was 16 only a motion to dismiss that complaint under Civil Rule 12(b)(6), 17 the court could have granted leave to amend and the amended 18 complaint would have related back and avoided the statute of 19 limitations problem. See Civil Rule 15(c)(1)(B), made applicable 20 here by Rule 7015; Morrissey Constr. Co. v. Gantes (In re Gantes), 21 12 The U.S. Supreme Court recently held that appeals-filing 22 deadlines established by statute are jurisdictional and may not be waived or forfeited, whereas a "court-made" rule setting an 23 appeals-filing deadline is a claim-processing rule that can be waived or forfeited and does not determine a federal appeals 24 court's jurisdiction. Hamer v. Neighborhood Hous. Servs. of Chi., ___ U.S. ___, 2017 WL 5160782 (Nov. 8, 2017). This case turns on 25 whether Domingo was served with the original complaint in compliance with Civil Rule 4(m) and the expiration of the time 26 period for filing a dischargeability action as a result thereof. But, to the extent Hamer applies, Domingo did not waive or forfeit 27 his right to assert the expiration of the limitations period or the lack of timely service, as he asserted these defenses in his 28 answers and in motions to dismiss.

-15- 1 2016 WL 1169124, at *5-6 (9th Cir. BAP Mar. 23, 2016); In re Chaus 2 Sec. Litig., 801 F. Supp. 1257, 1263 (S.D.N.Y. 1992). 3 A federal court is without personal jurisdiction over a 4 defendant unless the defendant has been served in accordance with 5 Civil Rule 4. Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 6 1982). "Neither actual notice, nor simply naming the person in 7 the caption of the complaint, will subject defendants to personal 8 jurisdiction if service was not made in substantial compliance 9 with Rule 4." Id. Because Domingo was not served with the 10 summons and original complaint in accordance with Civil Rule 4, 11 the bankruptcy court lacked personal jurisdiction over him. As a 12 result, the nondischargeability judgment is void. Tuli v. 13 Republic of Iraq (In re Tuli), 172 F.3d 707, 712 (9th Cir. 1999) 14 (judgment entered without personal jurisdiction over the parties 15 is void). 16 Because the § 523(a)(2)(A) judgment is void, we need not 17 address the other issues raised by Domingo or the pretrial orders 18 denying Domingo relief, including the bankruptcy court's decision 19 to deny reconsideration of the order denying the Motion to Dismiss 20 the FAC. 21 VI. CONCLUSION 22 For the foregoing reasons, we VACATE the judgment determining 23 that the Puerto Rico Judgment was excepted from Domingo's 24 discharge under § 523(a)(2)(A). 25 26 27 28

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