United States v. Rodriguez

Opinion

USCA1 Opinion

December 29, 1993     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-1303

UNITED STATES,

                                      Appellee,

                                          v.

                 LUZ AIDA RODRIGUEZ, a/k/a LUZ AIDA RODRIGUEZ RIVERA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                             Torruella, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Susana Cortina de Cardenas, on brief for appellant.
               __________________________
               Guillermo  Gil, United States Attorney, and Jose M. Pizarro-
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          Zayas, Assistant United States Attorney, on brief for appellee.
          _____

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                                  __________________

Per  Curiam.   Appellant Luz  Aida  Rodriguez appeals  a
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            memorandum order by the United  States District Court for the

            District of Puerto  Rico denying her  motion for relief  from

            judgment pursuant  to Fed. R.  Civ. P. 60(b)(4)  & (6).   The

            gravamen of  appellant's argument  is that  the judgment  was

            void  because the court lacked jurisdiction due to inadequate

            service of process.  We affirm.

                                      Background
                                      Background

                 In 1971, the  Farmers Home Administration [FHA]  granted

            appellant and her  then husband a mortgage loan  secured by a

            lien  over appellant's  property  in Can vanas,  Puerto Rico.

            Appellant  assumed the entire obligation after being divorced

            from her husband in 1972.  In September 1991, after appellant

            had fallen  behind in  the installment  payments, the  United

            States,  on behalf  of the  FHA, filed  a judicial  action in

            federal   district   court  for   collection  of   money  and

            foreclosure of the mortgage.  On September 24, 1991, a United

            States Deputy  Marshall personally  delivered to  appellant's

            residence a  copy of  the summons and  the complaint  in this

            case.   The Deputy  Marshall testified  that the  papers were

            accepted by appellant's son.  

                 Appellant  failed to appear  and a default  judgment was

            entered  on November  15, 1991.   An  order for  execution of

            judgment  was entered  on February  13, 1992,  and a  writ of

            execution on February 24.  A notice of  sale was published on

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April 10, 1992, and a public sale  was held on June 10.   The

            property was awarded  to the highest bidder and  the sale was

            confirmed by the district court on September 9, 1992.

                 On September 20,  1992, appellant moved in  the district

            court  for  the case  to  be  dismissed  for lack  of  proper

            service.   According  to affidavits  filed  with the  motion,

            appellant attested that  she had not been served  with a copy

            of the  complaint and that she  had lived alone for  the past

            four years.  Her son further attested that he had  never been

            served with  a copy  of the summons  or complaint.   Hearings

            were held in December 1992 and January 1993 at which oral and

            documentary  evidence was presented.  Based on this evidence,

            the  court found  that  the Deputy  Marshall  had served  the

            appellant, through her son, at the appellant's dwelling place

            in accord with Fed. R. Civ. P.  4(d)(1).  The court found the

            contrary attestations  of  appellant and  her son  to be  not

            credible.  As a consequence,  the court denied the motion for

            relief from judgment.

                                      Discussion
                                      Discussion

                 Appellant  asserts that  the  district  court  erred  in

            finding  that process  had been properly  served upon  her in

            this case.  We review  the court's factual findings for clear

            error.  Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972
                    _______________     ___________________________

            F.2d 453, 457 (1st Cir.  1992).  "[W]hen factual findings are

            based   on  determinations   regarding  the   credibility  of

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witnesses [Fed. R. Civ. P.]  52 demands that the appeal court

            accord even greater deference to the trial court's findings."

             Rodriguez-Morales v. Veterans Admin., 931 F.2d 980, 982 (1st
             _________________    ______________

            Cir.  1991) (citing  cases).   We  usually  review a  court's

            denial  of  a  Rule  60(b)   motion  only  for  an  abuse  of

            discretion.  Cotto  v. United States, 993 F.2d  274, 277 (1st
                         _____     _____________

            Cir. 1993).    However, "[a]  default judgment  entered by  a

            court  which  lacks  jurisdiction  over  the  person  of  the

            defendant is void,"   Precision Etchings & Findings,  Inc. v.
                                  ___________________________________

            LGP Gem, Ltd., 953 F.2d 21, 23 (1st Cir. 1992), and "[i]f the
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            judgment is void, the district court has no discretion but to

            set aside the  entry of the  default judgment,"   Echevarria-
                                                              ___________

            Gonzales v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988).
            ________    _______________

                 Pursuant  to Fed. R. Civ. P.  4(d)(1) service of process

            may be made 

                 by leaving copies [of the summons and complaint] at

                 the  individual's dwelling house  or usual place of

                 abode  with   some  person  of   suitable  age  and

                 discretion then residing therein

            At the  hearing on  the Rule 60  motion, the  Deputy Marshall

            testified that he  had served a copy  of the summons  and the

            complaint  upon appellant's son at her dwelling.  Appellant's

            son  denied  having  been served.    Furthermore,  the Deputy

            Marshall  indicated that the person  whom he served seemed to

            be about fifteen  or sixteen years old.   Appellant's son was

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at  the time  twenty four.    The district  found appellant's

            son's denial  of having  been served not  credible.   It also

            found that the discrepancy in ages was explicable by the fact

            that appellant's son  looked younger than his age.   In light

            of  the  deference  owed  to  the  district  court in  making

            credibility determinations,  we find  no clear  error in  the

            court's  finding  that  process  was  served  on the  son  at

            appellant's house.

                 Appellant also contends  that the son upon  whom process

            was  allegedly served did not reside in appellant's house and

            thus  was  not  a  proper recipient  of  process  under  Rule

            4(d)(1).  The  only evidence of  appellant's son residing  at

            her  house was  the testimony  of the  Deputy Marshall.   His

            testimony shows that the person whom he served at appellant's

            dwelling  identified himself as appellant's son and that from

            this  the Deputy Marshall  assumed that he  resided therein.1

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            1.  The following evidence was presented at the hearing:

                 Counsel:  How  do you know  [the person served]  was her
            son?

                 Marshall:  He told me he  was Mrs. Lu[z] Ida Rodriguez's
            son.

                 Counsel:  He told you.  Did he tell you he lived there?

                 Marshall: Yes, he did.

                 Counsel:  How did he say that?

                 Marshall: Well, I was looking for Mrs. Luz Ida Rodriguez
            at  that address  and the  boy happened  to be there,  and he
            said, "Yes,  it is my mother."  That is  the way I served the

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Appellant's  son, on the other hand, denied having resided at

            his mother's  house when  process was  allegedly served.   He

            testified that at the time in question he was living with his

            wife  and chidren at the  home of his  wife's parents.  While

            the  district court  made  no specific  finding that  the son

            resided  in appellant's dwelling, such a finding was implicit

            in his decision.  See Home-Stake Production Co, C.A. v. Talon
                              ___ _____________________________     _____

            Petroleum, 907 F.2d 1012, 1017 (10th Cir. 1990).  
            _________

                 Where, as  the court  supportably found  in the  instant

            case,  a defendant has  received actual notice  of an action,

            service   of  process   requirements   are  to   be  "broadly

            interpreted," see, e.g., Nowell v. Nowell, 384 F.2d 951  (5th
                          ___  ___   ______    ______

            Cir.  1967), cert.  denied,  390 U.S.  956  (1968); Adams  v.
                         ____   ______                          _____

            School   Board,  53  F.R.D.   267,  268  (D.Pa.   1971),  and
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            "substantial compliance" with the  requirements suffices, see
                                                                      ___

            Precision Etchings, 953 F.2d at  24 (citing cases).  In cases
            __________________

            where actual  notice has been  received, service on  a person

            linked by a  "substantial nexus"  to the  defendant has  been

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            paper, through him.

                 Counsel:  I  don't understand[.  T]he boy happened to be
            there?  What does that mean?

                 Marshall: The boy was there.  In the house.

                 Counsel:  And how do you know the . . . boy lived in the
            house?

                 Marshall: Because   he  told  me   that  [he]  was  Mrs.
            Rodriguez' son.  And that was at that address.

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held to meet  the requirements of Rule 4(d)(1).   See Nowell,
                                                              ___ ______

            384 F.2d at 953 (service  on defendant's landlady who resided

            in separate apartment building from defendant  found adequate

            where  "substantial  nexus"   existed  between  landlady  and

            defendant); see  also M. Lowenstein  & Sons, Inc.  v. Austin,
                        ___  ____ __________________________      ______

            430  F.Supp. 844,  845  (S.D.N.Y.  1977)  (daughter  who  was

            visiting  home from  school and  stayed  overnight was  "then

            residing" at residence for purposes of Rule 4(d)(1)).  In the

            instant case, the  record supportably shows that  appellant's

            son answered  the door at her house when  she was not at home

            and  was therefore  a trusted  member of  the household.   In

            light  of the "substantial  nexus" between appellant  and her

            son, we find  no clear error in the  court's implicit finding

            that  appellant's son  was  "residing" in  her house  for the

            purposes  of Rule  4(d)(1).2   The court did  not err  in its

            denial of the Rule 60(b)(4) motion.

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            2.  A  similar  result was  reached by  the Supreme  Court of
            Rhode Island in Plushner v.  Mills, 429 A.2d 444 (R.I. 1981).
                            ________     _____
            In  Plushner defendant's daughter was found to have "resided"
                ________
            in defendant's household for purposes of receiving service of
            process even though she maintained a separate residence.  The
            court  found that she  was a  "trusted member  of defendant's
            household  and that a  substantial nexus existed  between her
            and defendant."   Id. at 446.  Although the court in Plushner
                              __                                 ________
            was  interpreting  the  Rhode  Island  rule  for  service  of
            process, that rule, in relevant part,  is almost identical to
            Fed. R.  Civ. P. 4(d)(1)  and, in interpreting it,  the Rhode
            Island courts  "look for  guidance in the  precedents of  the
            federal courts, upon  whose rules those of [Rhode Island] are
            closely patterned."  Id. at 445 (quoting Nocera v. Lembo, 298
                                 __                  ______    _____
            A.2d 800, 803 (R.I. 1973)).

                                         -7-

Appellant  also   contends  that  the  court   erred  in

            receiving and considering  evidence on issues other  than the

            adequacy  of the  service of  process  at the  hearing.   She

            further contends that  her right to due  process was violated

            by  the consideration  of  such evidence  since she  had been

            unable to conduct adequate discovery before the hearing.  

                 In  advance of the  hearing, the  court had  ordered the

            government to  produce evidence of the "amounts due and owing

            to  the  government  in this  case"  and  had instructed  the

            defendant   to   bring   in   evidence   setting  forth   her

            understanding of the amounts due.   The record indicates that

            the court was aware that the issue of the amount owed was not

            before   the  court   but  considered   the   information  as

            "background" to  the Rule  60(b)(4) motion.   Moreover,  this

            background  evidence was relevant to the court's finding that

            appellant had actual notice of  the foreclosure action.3   We

            find no abuse of  discretion in the court's consideration  of

            this  "background"  evidence.     Furthermore,  even   though

            appellant had a limited time in which to prepare her response

            to the  government's evidence  of the amount  due, we  do not

            find  that she suffered sufficient prejudice to implicate the

            federal due process clause.

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            3.  For  example,  the  government  presented  evidence  that
            appellant  attempted to  make a  partial  payment to  the FHA
            eight days after  the summons was served and  that, when this
            payment  was returned, appellant  was personally  informed of
            the existence of the proceedings against her.

                                         -8-

The denial  of  the motion  to  vacate the  judgment  is

            affirmed.
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