December 29, 1993 [NOT FOR PUBLICATION]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.
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-
Zayas, Assistant United States Attorney, on brief for appellee.
Per Curiam. Appellant Luz Aida Rodriguez appeals a
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
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
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
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
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
"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
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.
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)).
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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.
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.
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The denial of the motion to vacate the judgment is
affirmed.
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