In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1266
T HE Y ORK G ROUP, INC.,
Plaintiff-Appellee,
v.
W UXI T AIHU T RACTOR C OMPANY, L IMITED, et al.,
Defendants.
A PPEAL OF:
D ANIEL B ENEFIELD
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 2141—George W. Lindberg, Judge.
A RGUED S EPTEMBER 13, 2010—D ECIDED F EBRUARY 4, 2011
Before E ASTERBROOK, Chief Judge, and P OSNER and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. The York Group served
Daniel Benefield with a subpoena to give evidence in
its suit (pending in a federal district court in Texas)
against Wuxi Taihu Tractor Company. Benefield neither
2 No. 10-1266
complied nor moved to quash. After three months had
passed, a district judge in Illinois (the proper venue, see
Fed. R. Civ. P. 45(a)(2)(C)) enforced the subpoena. After
four more weeks passed without action by Benefield,
York moved to hold him in contempt. When he did not
appear at the hearing set for June 10, 2009, or at another
on June 23, the judge found him in civil contempt,
imposed a fine, and ordered him to reimburse York’s
legal expenses.
The monetary award against Benefield came to slightly
more than $22,000. When he did not pay, York obtained
an order garnishing Benefield’s checking account. That
finally got his attention. On October 2, 2009, more
than three months after the contempt adjudication (and
after the time for appeal had expired), Benefield filed
a motion under Fed. R. Civ. P. 60(b). He contended
among other things that he had not been served with a
copy of the subpoena and that he was therefore entitled
to disregard the proceedings. The district judge con-
cluded that this was the only preserved issue, for, if
Benefield had been served, he needed to comply or
move to quash rather than ignore the proceedings as
he had done. After an evidentiary hearing, the judge
found that Benefield had been properly served when a
copy of the subpoena was left at his residence while
he was at home and refusing to open the door. Next
Benefield filed a motion under Fed. R. Civ. P. 59(e), asking
the judge to reconsider. This motion presented some
arguments that had not been made in the Rule 60
motion or at the hearing. The district judge deemed them
No. 10-1266 3
forfeited and denied the motion. At last Benefield ap-
pealed.
Benefield wants us to review all of the district court’s
orders, including the orders of June 2009 finding him in
contempt and directing him to pay York more than
$22,000. He did not file a timely notice of appeal from
these orders, however. Indeed, it is unclear whether
he filed a timely notice of appeal from the order denying
his Rule 60(b) motion. Because a timely notice is a juris-
dictional requirement in civil litigation, see Bowles v.
Russell, 551 U.S. 205 (2007), we must start with this ques-
tion even though the parties have paid it scant attention.
A timely post-judgment motion in the district court
suspends the judgment’s finality and thus defers the
time for appeal until the district judge has acted on the
motion. Fed. R. App. P. 4(a)(4). But Rule 4(a) refers to
a single post-judgment motion. A second or successive
post-judgment motion does not affect the time for ap-
peal. See, e.g., Andrews v. E.I. du Pont de Nemours & Co., 447
F.3d 510, 515–16 (7th Cir. 2006); SEC v. Van Waeyenberghe,
284 F.3d 812, 814 (7th Cir. 2002); Charles v. Daley, 799
F.2d 343, 347 (7th Cir. 1986). Benefield filed two: first the
Rule 60(b) motion, then the Rule 59(e) motion. If they are
treated as successive, then the notice of appeal must be
dismissed as untimely, because Benefield did not appeal
within 30 days of either the contempt order or the deci-
sion denying the Rule 60(b) motion to vacate that order.
A motion under Rule 60(b) has a property that makes
it inappropriate to treat Benefield’s two motions as suc-
4 No. 10-1266
cessive. A Rule 60(b) motion does not suspend a judg-
ment’s finality unless filed within 28 days of its entry. Fed.
R. App. P. 4(a)(4)(A)(vi); Fed. R. Civ. P. 60(c)(2). A motion
filed later does not affect the time to appeal the judg-
ment but is treated as initiating a new proceeding
whose decision is independently final and appealable.
Browder v. Director, Department of Corrections, 434 U.S. 257,
263 n.7 (1978). A timely Rule 59 motion following this
new final judgment then operates as Rule 4(a)(4)
specifies and defers the time for appeal. See Martinez v.
Chicago, 499 F.3d 721, 727 (7th Cir. 2007); Inryco, Inc. v.
Metropolitan Engineering Co., 708 F.2d 1225, 1232 (7th Cir.
1983). Accord, Moody v. Pepsi-Cola Metropolitan Bottling
Co., 915 F.2d 201 (6th Cir. 1990); Stark v. Lambert, 750
F.2d 45 (8th Cir. 1984); Charles Alan Wright & Arthur R.
Miller, 16A Federal Practice & Procedure §3950.4 (2d ed.
2008).
This approach to appellate jurisdiction has a corollary:
The only reviewable decision is that on the Rule 60(b)
motion itself. Antecedent decisions cannot be reviewed,
because they were final and the time to appeal expired.
McKnight v. United States Steel Corp., 726 F.2d 333, 338
(7th Cir. 1984). This means that the only question
Benefield has preserved for appeal is whether he was
served with process (plus any additional question
properly raised by the Rule 59 motion, a subject to which
we return). Other issues, such as whether he was
properly found in contempt of court and how much he
has to pay as a consequence, are beyond appellate review.
In response to the Rule 60 motion, the district court
held a hearing. Benefield contended that he lives in
No. 10-1266 5
China, not Illinois, and that he is separated from his wife
and has nothing to do with her home, where the sub-
poena was delivered. The judge was not persuaded. He
received, and believed, two principal pieces of evidence:
a statement by the process server, and an affidavit by
Benefield’s next door neighbor. Here is what the process
server related:
On Friday night I was told by an Asian lady at
residence that Benefield lives in China and does
not live here. I did a skip/trace on him later at
my office and found that he indeed lives at 709
Columbine [Ave. in Lombard, Illinois] and may
have a business at 2635 W. Grand Ave Chicago IL.
She lied to me. Her name may be Donna Benefield.
I went again on 2/7/2009 at 8:00AM and no one
answered the door. White PT Cruiser in garage.
On 2/8/2009 I went out again and a neighbor
told me he just helped Benefield move a pool
table to the street in front of the house. I saw w/m
by window inside house look out when I knocked
on back window. I announced paper and put it
at side door inside enclosed pouch when I heard
someone inside the house. They are both clearly
trying to evade service. At the same time I was
there a high school friend of his drove up and
said he is at home. He said he came over to see
him.
York also proffered an affidavit by Donald R. Barratt,
who has lived at 701 Columbine Ave. since 2004. Barratt
stated that he knew that both Daniel and Donna
6 No. 10-1266
Benefield live at 709 Columbine, because he had spoken
with both of them many times. He also stated that he had
helped the Benefields move a pool table to the curb on
February 8 and later had talked with the process server
after the Benefields refused to open the door. Like the
process server, Barratt saw the window curtains move
and an occupant look out.
The district judge asked Benefield’s lawyer whether
he wanted a continuance so that he could interview
Barratt, ask him to give live testimony, or develop evi-
dence to undermine Barratt’s affidavit. Counsel declined
the opportunity and did not present any evidence to
counter that from Barratt and the process server. This
led the judge to find that Daniel Benefield lived at
709 Columbine Ave. and that service was effective
because both Benefields were in the house when the
process server delivered the subpoena to their door.
That finding is supported by the evidence to which the
district judge referred; we could not possibly deem it
clearly erroneous (the standard of appellate review of a
finding made in a hearing under Fed. R. Civ. P. 12(b)(2)).
See Frontera Resources Azerbaijan Corp. v. State Oil Co.
of Azerbaijan, 582 F.3d 393, 395 (2d Cir. 2009); Pennzoil
Products Co. v. Colelli & Associates, Inc., 149 F.3d 197,
200 (3d Cir. 1998); Foster-Miller, Inc. v. Babcock & Wilcox
Canada, 46 F.3d 138, 147 (1st Cir. 1995).
Benefield’s motion under Rule 59 advanced two argu-
ments. The first was that the subpoena was ineffective
because addressed to
One Stop China Ltd.
c/o Daniel H. Benefield, Jr.
No. 10-1266 7
rather than Daniel Benefield personally. The second was
that Barratt held a grudge against Benefield and that
his testimony therefore should not be believed. The
district judge concluded that both arguments had been
forfeited, because they not only were omitted from the
Rule 60 motion but also were not raised during the
hearing. The judge thought the argument about Barratt
especially feeble, because counsel had declined the prof-
fered opportunity at the hearing to present just the sort
of contention that the Rule 59 motion later made.
The district judge handled the Rule 59 motion
soundly. The arguments were indeed forfeited. If the
reference to One Stop China made service on Benefield
(as its representative) ineffective, that argument could
and should have been raised in the Rule 60 motion, and
the other argument was waived during the hearing.
Benefield contends that this cannot be so, because
jurisdictional arguments may be raised at any time, even
if never presented to the district court. He misunder-
stands that rule, which deals with subject-matter juris-
diction—that is, whether the tribunal is competent to
resolve the dispute. See, e.g., Morrison v. National Australia
Bank, Ltd., 130 S. Ct. 2869, 2877 (2010); Reed Elsevier, Inc. v.
Muchnik, 130 S. Ct. 1237, 1243–44 (2010). The effectiveness
of service concerns personal jurisdiction, not subject-
matter jurisdiction. Personal jurisdiction may be con-
ceded (as subject-matter jurisdiction cannot be) or
forfeited by delay in objecting. See Fed. R. Civ. P. 12(h)(1);
Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinée, 456 U.S. 694, 703–05 (1982).
8 No. 10-1266
For what little it may be worth, we add that Benefield’s
argument is wrong on the merits. He describes One Stop
China as his proprietorship. A proprietorship is just a
name that a real person uses when doing business; it
is not a juridical entity. Vernon v. Schuster, 179 Ill. 2d 338,
347, 688 N.E.2d 1172, 1176–77 (1977) (“a sole proprietor-
ship has no legal identity separate from that of the indi-
vidual who owns it”). The only entity is the propri-
etor—here, Daniel Benefield. “One Stop China” and
“Daniel Benefield” are two names for the same person.
Either will do; both are better. The subpoena used both,
to curtail the risk of evasion; this precaution made
the subpoena easier to enforce, not (as Benefield sup-
poses) impossible to enforce. Benefield misunderstands
Schiavone v. Fortune, 477 U.S. 21 (1986), the decision
on which he principally relied in the district court. In
Schiavone the plaintiff sued “Fortune", a trade name
used by Time, Inc., but did not identify Time as a party.
A proprietorship is not a trade name, a bit of intellectual
property employed by a larger enterprise. “One Stop
China” is the name of Daniel Benefield’s business, just
as “Time, Inc.” is the name of the corporation that pub-
lishes the magazine Fortune. It is no more helpful to
call “One Stop China” a trade name or a “misnomer”
(which Benefield also does) than it would be to call
“Daniel Benefield” a trade name for someone who really
ought to be identified by a fingerprint, retina pattern, or
DNA sequence. When filing a suit, or serving a sub-
poena, it is enough to specify the real party in interest.
Fed. R. Civ. P. 17. Either “One Stop China” or “Daniel
Benefield” does that, in a way that “Fortune” (without
any mention of Time, Inc.) did not.
No. 10-1266 9
It is long past time for Benefield to perform his legal
obligations. The judgment is
AFFIRMED .
2-4-11