[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 21, 2010
No. 09-12770 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________
D. C. Docket No. 05-01267-CV-WSD-1
DOMINIC F. BARAGONA,
as the Personal Representative of
Lieutenant Colonel Dominic R. Baragona,
DOMINIC F. BARAGONA,
in his personal Capacity,
VILMA D. BARAGONA,
Plaintiffs-Appellants,
versus
KUWAIT GULF LINK TRANSPORT COMPANY,
MAHMOUD MUHAMMED HESSAIN SEROUR,
c/o Kuwait Gulf Link Transport Company,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 21, 2010)
Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Plaintiffs, the father and mother of Dominic R. Baragona, appeal the district
court’s order vacating a default judgment against the defendants, Kuwait & Gulf
Link Transport Company (KGL). We affirm the district court’s order.
I. Background
On May 19, 2003, Lieutenant-Colonel Dominic R. Baragona died in a tragic
traffic collision with a truck operated by KGL in Iraq. KGL is incorporated under
Kuwaiti law and has its principal place of business in Kuwait.
Baragona’s father and mother filed suit under Georgia tort law in the United
States District Court for the Northern District of Georgia. The Baragonas served
KGL by international courier and through the Kuwaiti Ministry of Justice.1 KGL
refused delivery of the complaint and summons but retained counsel in the United
States to monitor the proceedings.2 Upon the Baragonas’ motion for entry of
default, KGL did not appear and the clerk of the court entered a default judgment
against KGL for its failure to appear or otherwise answer after service. The district
1
Service on the Kuwaiti Ministry of Justice was performed under the requirements of the
Hague Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, which the United States ratified on June 15, 1965, and to which
Kuwait acceded on May 2, 2002.
2
KGL also hired counsel in the United States to represent it in litigation with the United
States Army arising out of Baragona’s death.
2
court then scheduled an evidentiary hearing on personal jurisdiction and directed
the Baragonas to serve their memorandum of law on this issue on both KGL and its
counsel in the United States. The district court found that the Baragonas had
established a prima facie case that the court had personal jurisdiction and awarded
the Baragonas a default judgment of $4,907,048.
KGL then elected to make an appearance in this action by filing a motion to
set aside the judgment under Federal Rule of Civil Procedure 60(b)(4). After a
hearing, the district court determined that KGL lacked minimum contacts with
Georgia sufficient to support the exercise of personal jurisdiction under Georgia’s
long-arm statute and granted KGL’s motion to vacate the default judgment. The
Baragonas appeal.
II. Discussion
“We review de novo . . . a district court’s ruling upon a Rule 60(b)(4)
motion to set aside a judgment as void, because the question of the validity of a
judgment is a legal one.” Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001)
(citations and quotation marks omitted). We review the district court’s findings of
fact for clear error. United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002).
The Baragonas first argue that KGL waived its personal jurisdiction defense
through its “lawyerly gamesmanship” in ignoring valid service, retaining counsel
3
in the United States, monitoring court proceedings, and then filing a motion to
vacate the judgment after a default judgment was rendered against it. A defendant
normally only waives a personal jurisdiction defense if he or she has entered an
appearance or was involved in overt wrongdoing to deceive the court and avoid
service of process. Sanderford v. Prudential Ins. Co., 902 F.2d 897, 899 (11th Cir.
1990). In this case, however, none of these circumstances are present and “[a]
defendant is always free to ignore the judicial proceedings, risk a default judgment,
and then challenge that judgment on jurisdictional grounds in a collateral
proceeding.” Ins. Corp. of Ir. v. Compagnie Des Bauxites de Guinee, 456 U.S.
694, 706 (1982). This is particularly true in this case where the court must
determine whether the constitutional requirements of minimum contacts are
satisfied. See Foster v. Arletty 3 Sarl, 278 F.3d 409, 413 (4th Cir. 2002) (holding
that the defendant, a French company, did not waive its personal jurisdiction
defense merely because it was served with process and had notice of the district
court proceedings).
The Baragonas point to cases they characterize as holding that a defendant’s
willful ignorance of district court proceedings waives a later challenge to personal
jurisdiction. Sanderford, 902 F.2d at 899; Wells v. Rockefeller, 728 F.2d 209, 214
(3d Cir. 1984). These cases, however, all involve the improper service of process.
4
As we explained in Prewitt Enterprises, Inc. v. Organization of Petroleum
Exporting Countries:
The concept of personal jurisdiction comprises two distinct
components: amenability to jurisdiction and service of process.
Amenability to jurisdiction means that a defendant is within the
substantive reach of a forum’s jurisdiction under applicable law.
Service of process is simply the physical means by which that
jurisdiction is asserted.
353 F.3d 916, 925 n.15 (11th Cir. 2003). These cases, therefore, state that a
defendant that ignores faulty service of process might be found to have waived one
component of personal jurisdiction: the defense of improper service of process.
They do not, however, hold that a defendant waives the personal jurisdiction
defense when it receives notice but does not meet the constitutional test of
minimum contacts making it amenable to jurisdiction.3
The Baragonas also argue that KGL waived its personal jurisdiction defense
by entering into contracts with the United States government that contain Section
52-228-8 of the Federal Acquisition Regulation. 48 C.F.R. § 52.228-8. They
contend that this section, requiring contractors to maintain liability insurance “to
indemnify and hold harmless the Government against” third-party personal injury
and property loss claims, waives KGL’s defense of personal jurisdiction. 48
3
The court in Sanderford stated: “This is not simply a case of personal jurisdiction, as
argued by appellant, rather we believe that this case turns on waiver of the defense of
insufficiency of process.” 902 F.2d at 900.
5
C.F.R. § 52.228-8(b). This section, however, makes no mention of a waiver of
personal jurisdiction and does not alter the required constitutional analysis that the
court must consider in lawfully exerting personal jurisdiction over KGL.
Finally, the Baragonas argue that the district court committed clear error
when it found that Baragona was killed by a KGL truck under contract with the
United Nations World Food Programme. This finding, however, is irrelevant to
the Baragonas’ argument that the district court had general jurisdiction over KGL
because there were “continuous and systematic” contacts between Georgia and
KGL. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416
(1984). Thus, we need not analyze this argument because the Baragonas have not
shown how this fact was relevant to or prejudiced their case. Maiz v. Virani, 253
F.3d 641, 667 (11th Cir. 2001) (“We will not overturn an evidentiary ruling and
order a new trial unless the objecting party has shown a substantial prejudicial
effect from the ruling.”).
Accordingly, the district court’s order is
AFFIRMED.
6