Hukill v. Oklahoma Native American Domestic Violence Coalition

FILED
United States Court of Appeals
Tenth Circuit

September 17, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHEREE L. HUKILL,

Plaintiff-Appellee,

v. No. 07-5168

OKLAHOMA NATIVE AMERICAN
DOMESTIC VIOLENCE
COALITION, d/b/a/ Spirits Of Hope;
PAULINE MUSGROVE,

Defendants-Appellants,

and

NICK DOOLEY, CHARLOTTE
JOHNS, JEANIE JONES, ANGELA
KNIFECHIEF, JAIME LEVERETT,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 06-CV-662-CVE)

Submitted on the briefs: *

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
(continued...)
Debra W. McCormick, Rubenstein, Bryan, McCormick & Pitts, Edmond,
Oklahoma; Patricia Kirch, Rainey Martin LLP, Oklahoma City, Oklahoma, for
Defendants-Appellants.

Matthew B. Free, Best & Sharp, Tulsa, Oklahoma, for Plaintiff-Appellee.

Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.

PORFILIO, Circuit Judge.

Defendants Pauline Musgrove and Oklahoma Native American Domestic

Violence Coalition (d/b/a “Spirits of Hope”) appeal the district court’s denial of

their motion to set aside a default judgment in favor of plaintiff Sheree L. Hukill.

Because Ms. Hukill did not properly serve Ms. Musgrove and Spirits of Hope, the

district court did not have jurisdiction over them, and we conclude that it was

required to set aside the default judgment. We therefore reverse and remand to

the district court with directions to vacate the default judgment against these

defendants.

Background

The relevant facts are not in dispute. Ms. Hukill worked for Spirits of

Hope as a grant writer and staff attorney until her employment was terminated in

December 2004. Following her termination, she filed a lawsuit in Oklahoma state

*
(...continued)
ordered submitted without oral argument.

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court against Spirits of Hope, Ms. Musgrove, and other defendants. Ms. Hukill

voluntarily dismissed her state-law action in October 2006 and filed this

federal-court action against the same defendants two months later. Before

attempting to serve Spirits of Hope and Ms. Musgrove with the federal summons

and complaint, Ms. Hukill’s counsel contacted the lawyer who represented them

in the state-court action to inquire whether he would accept service on behalf of

his clients. Their lawyer responded that his clients would not authorize him to do

so.

Ms. Hukill elected to serve Spirits of Hope and Ms. Musgrove by following

state law, see Fed. R. Civ. P. 4(e)(1) and 4(h)(1)(A), pursuant to an Oklahoma

statute which provides that “[s]ervice by mail shall be accomplished by mailing a

copy of the summons and petition by certified mail, return receipt requested and

delivery restricted to the addressee.” Okla. Stat. tit. 12, § 2004(C)(2)(b).

Ms. Hukill mailed both summonses to the Spirits of Hope business address. One

summons was addressed to “Pauline Musgrove c/o Spirits of Hope Coalition” and

was marked for restricted delivery. Aplt. App. at 76. The other summons was

addressed to “Spirits of Hope Coalition c/o Pauline Musgrove” and was not

marked for restricted delivery. Id. at 74. At the time of these mailings,

Ms. Musgrove was the executive director of Spirits of Hope and its registered

agent for service of process, but she did not sign for either delivery. The same

person, “L. Vollintine,” signed both return receipts. See id. at 74, 76. At that

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time, L. Vollintine was not an employee, officer, board member, or director of, or

an agent authorized to receive service of process on behalf of, Spirits of Hope.

None of the other defendants who were served by plaintiff were employees,

officers, or directors of, or agents authorized to accept service of process for,

Spirits of Hope at the time Ms. Hukill filed her complaint or effected service

upon them. See id. at 71.

After the defendants failed to respond to the complaint, Ms. Hukill moved

for default judgment, indicating that Spirits of Hope and Ms. Musgrove had each

been served by certified mail. The district court granted the motion and entered

judgment against Spirits of Hope, Ms. Musgrove, and the other defaulting

defendants, 1 jointly and severally, for more than $100,000. Less than a month

later, Spirits of Hope and Ms. Musgrove filed a motion to set aside the default

judgment against them under Fed. R. Civ. P. 55(c) and 60(b), contending that the

judgment was void because they were never properly served. 2 They did not allege

in their motion that they had not ultimately received the summons and complaint

or that they were unaware of the lawsuit. They argued that, under Oklahoma law,

statutes prescribing the manner of service must be strictly complied with.

1
Ms. Hukill’s motion sought a default judgment as to all but one defendant,
who she later served by publication and obtained a separate default judgment
against.
2
None of the other defaulting defendants moved to set aside the default
judgment. Hereafter, “defendants” refers to Spirits of Hope and Ms. Musgrove.

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Ms. Hukill opposed the motion, asserting that only substantial compliance with

the Oklahoma statute was required.

The district court denied defendants’ motion to vacate the default judgment,

holding that substantial compliance is the proper standard under Oklahoma law.

The court focused on the mailing addressed to Ms. Musgrove, which was marked

for restricted delivery, as required by the statute. Acknowledging that the post

office did not enforce the delivery restriction when it permitted L. Vollintine to

accept the mailing and sign the return receipt, the court reasoned that Ms. Hukill

substantially complied with the statute. It emphasized defendants’ failure to

assert that they did not receive the summons and complaint, as well as the

evidence that they were aware of the pendency of the lawsuit based on their

refusal to allow their counsel to accept service. The district court concluded that

service upon Ms. Musgrove individually, and as an officer and service agent for

Spirits of Hope, was valid under Oklahoma law because “[m]ore than a

reasonable probability exists that defendants had actual notice of the civil action.3

3
Having found that the service upon Ms. Musgrove and Spirits of Hope was
valid, the district court proceeded to determine whether the default judgment
should nonetheless be set aside. See United States v. Timbers Preserve, Routt
County, Colo., 999 F.2d 452, 454 (10th Cir. 1993) (setting forth requirements for
setting aside a default judgment). Because we conclude that service was not
valid, we do not reach the parties’ contentions regarding the culpability of
defendants’ conduct, whether they have a meritorious defense, or prejudice to
Ms. Hukill. See id.

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Aplt. App. at 104. Ms. Musgrove and Spirits of Hope filed a timely appeal of the

district court’s ruling.

Standards of Review

We generally review a district court’s denial of a motion to set aside a

default judgment under Rules 55(c) 4 and 60(b) for an abuse of discretion. United

States v. Timbers Preserve, Routt County, Colo., 999 F.2d 452, 454 (10th Cir.

1993). But we apply a different standard of review to rulings under Rule

60(b)(4), which permits a court to relieve a party from a final judgment that is

void. Where Rule 60(b)(4) is properly invoked, “relief is not a discretionary

matter; it is mandatory,” Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994)

(quotation omitted), and, accordingly, our review is de novo, see Wilmer v. Bd. of

County Comm’rs, 69 F.3d 406, 409 (10th Cir. 1995).

In this case our decision turns on the application of Oklahoma law, which

we also construe de novo. See Cooper v. Cent. & Sw. Servs., 271 F.3d 1247, 1251

(10th Cir. 2001); see also Burnham v. Humphrey Hospitality Reit Trust, Inc.,

403 F.3d 709, 715-16 (10th Cir. 2005) (applying Kansas law to determine whether

service of corporation under Rule 4(h)(1)(A) substantially complied with state

law); Tex. W. Fin. Corp. v. Edwards, 797 F.2d 902, 905-06 (10th Cir. 1986)

(applying Texas law to determine whether service of individual strictly complied

4
Rule 55(c) provides, in pertinent part, that “[t]he court may set aside . . . a
default judgment under Rule 60(b).”

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with state long-arm statute). We must “ascertain and apply Oklahoma law with

the objective that the result obtained in federal court should be the result that

would be reached in an Oklahoma court. In so doing, we must apply the most

recent statement of state law by the state’s highest court.” Cooper, 271 F.3d at

1251 (citation and quotations omitted).

Discussion

“[A] default judgment in a civil case is void if there is no personal

jurisdiction over the defendant.” United States v. Bigford, 365 F.3d 859, 865

(10th Cir. 2004) (emphasis and quotation omitted). And “service of process

[under Fed. R. Civ. P. 4] provides the mechanism by which a court having venue

and jurisdiction over the subject matter of an action asserts jurisdiction over the

person of the party served.” Okla. Radio Assocs. v. F.D.I.C., 969 F.2d 940, 943

(10th Cir. 1992). Rule 4 permits service of a summons and complaint upon an

individual by “following state law for serving a summons in an action brought in

courts of general jurisdiction in the state where the district court is located or

where service is made.” Fed. R. Civ. P. 4(e)(1). The same method may be used

to serve a corporation. Id. at 4(h)(1)(A).

Here, Ms. Hukill chose to serve Spirits of Hope and Ms. Musgrove by

certified mail pursuant to Okla. Stat. tit. 12, § 2004(C)(2). As we have noted,

§ 2004(C)(2)(b) requires such service to be sent “by certified mail, return receipt

requested and delivery restricted to the addressee.” Section 2004(C)(2)(c)

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provides further that, with respect to an individual, “[a]cceptance or refusal of

service by mail by a person who is fifteen (15) years of age or older who resides

at the defendant’s dwelling house or usual place of abode shall constitute

acceptance or refusal by the party addressed.” Id. For service upon a

corporation, “acceptance or refusal by any officer or by any employee of the

registered office or principal place of business who is authorized to or who

regularly receives certified mail shall constitute acceptance or refusal by the party

addressed.” Id. 5

Defendants contend that Ms. Hukill’s attempted service upon them failed to

comply with the Oklahoma statutory requirements in several respects. As to

service on Ms. Musgrove, they argue that (1) plaintiff failed to mail the summons

and complaint to her house or usual place of abode and (2) although the mailing

was sent with delivery restricted to the addressee, it was not received by

Ms. Musgrove herself, but was accepted by another person not residing at her

dwelling house or abode. As to service on Spirits of Hope, they assert that (1) the

5
The district court appears to have concluded that § 2004(C)(2)(c) is wholly
inapplicable to this case because it pertains only to the issuance and setting aside
of default judgments, and “[t]he Federal rules defer to Oklahoma law only in
regard to the manner of service, not in regard to default judgment.” Aplt. App. at
101 n.7. To the extent that subsection (c) addresses state-law procedures related
to default judgments, we agree with the district court. But, as illustrated here,
that subsection also defines who may accept or refuse service by mail on behalf of
a corporation, as well as when acceptance or refusal of service by mail by
someone other than the individual party addressed nonetheless constitutes
acceptance or refusal of service by that party. See Mortgage Elec. Registration
Sys., Inc. v. Crutchfield, 144 P.3d 196, 200-01 (Okla. Civ. App. 2006).

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mailing was not sent with delivery restricted to the addressee and (2) it was not

accepted by an officer or an employee authorized to or who regularly receives

certified mail. Defendants contend further that Ms. Hukill knew or should have

known that L. Vollintine was not authorized to accept service for Ms. Musgrove

or Spirits of Hope, yet plaintiff represented to the court that service upon them

was proper.

We agree with defendants’ contentions regarding noncompliance with the

statutory requirements, with one exception. We reject defendants’ assertion that

Ms. Hukill was required to serve Ms. Musgrove at her residence. Section

2004(C)(2)(b) does not specify a location to which the certified mailing must be

sent, providing instead that delivery must be restricted to the addressee. While

§ 2004(C)(2)(c) defines who may accept service by mail for an individual if the

mailing is sent to her “dwelling house or usual place of abode,” it does not limit

the place of service by mail to that location.

But our inquiry does not end with our determination that Ms. Hukill’s

attempted service on defendants failed to comply fully with the Oklahoma

statutory requirements. Although defendants argued in the district court that valid

service must strictly comply with § 2004, the parties agree on appeal that

Oklahoma applies the rule of substantial compliance. They further agree that the

Oklahoma Supreme court definitively adopted this rule in Graff v. Kelly, 814 P.2d

489, 495 (Okla. 1991) (“We conclude and so hold that the Oklahoma Pleading

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Code requires substantial compliance in order for the trial court to have

jurisdiction over the person of the defendant.”). Nor have we found any

Oklahoma Supreme Court case after Graff explicitly applying a strict compliance

rule. But the parties differ as to how the substantial compliance rule would be

applied in this case by the Oklahoma Supreme Court.

In holding that Ms. Hukill substantially complied with the service-by-mail

requirements in § 2004(C)(2), the district court relied on the following language

in Shamblin v. Beasley, 967 P.2d 1200, 1209 (Okla. 1998):

Service is not subject to invalidation for any departure from the
mode prescribed by statute. When it is alleged that there was want of
strict compliance with statutory requirements for service, the court
must in every case determine whether the found departure offends the
standards of due process and thus may be deemed to have deprived a
party of its fundamental right to notice.

Applying this test, the district court concluded that the post office’s failure to

enforce the restricted delivery on Ms. Hukill’s certified mailing to Ms. Musgrove

was an insubstantial departure from the statutory requirements, in light of

defendants’ actual knowledge of the lawsuit. 6 In support of the substantial

sufficiency of her service, plaintiff also relies on the Oklahoma Supreme Court’s

6
The district court concluded “that plaintiff’s failure to check the restricted
delivery box on the return receipt addressed to Spirits of Hope is inconsequential,
because the combined service on Musgrove substantially complied with [the]
Oklahoma statute.” Aplt. App. at 103.

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statement in Vance v. Federal National Mortgage Ass’n, 988 P.2d 1275

(Okla. 1999), that

[i]t is not every variance in the service of process which will
invalidate it. Rather to impugn the efficacy of service which is valid
on the face of the pertinent judgment roll a challenger must prove
that the departure offends articulated standards of due process and
hence deprives it of a fundamental right to notice. . . . In Shamblin v.
Beasley the Court adopted a totality-of-circumstances test to assay
the probability that service actually imparts the degree of notice
which is constitutionally prescribed. The adopted test requires that
under all the circumstances present in a case there be a reasonable
probability the service of process employed apprizes its recipient of
the plaintiff’s pressed demands and the result attendant to default.

Id. at 1279-80 (footnote omitted).

Defendants, on the other hand, rely on Graff for their contention that

Ms. Hukill’s efforts at service did not substantially comply with the requirements

for service by mail under § 2004(C)(2). In Graff, the plaintiff attempted to serve

the defendant, an individual, by personal delivery. 814 P.2d at 491. Section

2004(C)(1)(c)(1) provides that service upon an individual may be made

by delivering a copy of the summons and of the petition personally or
by leaving copies thereof at the person’s dwelling house or usual
place of abode with some person then residing therein who is fifteen
(15) years of age or older or by delivering a copy of the summons
and of the petition to an agent authorized by appointment or by law
to receive service of process.

But, rather than delivering the summons directly to the defendant, the process

server left it with a receptionist at his business address. 814 P.2d at 491. In his

motion to set aside a default judgment, the defendant argued that service on his

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receptionist was not a proper substitute service under § 2004. Id. at 491-92. The

plaintiff countered that service was proper because the receptionist was

defendant’s agent, or because the defendant had received actual notice of the

lawsuit. Id. at 492.

The Oklahoma Supreme Court applied a three-part test to determine

whether the service was sufficient: “(1) Is there a statute authorizing the method

of service employed?; (2) Have the requirements of the statute been observed?;

and (3) Have fundamental due process requirements been met?” Id. at 493

(quotation omitted). It answered the first question affirmatively, noting that

§ 2004(C)(1)(c)(1) provides for service of process on an agent appointed by the

individual or by law. Id. But it concluded that the requirements of that section

were not met because the receptionist was not an agent authorized by the

defendant or by law to accept service. Id. at 494-95. “This result [made]

addressing the third . . . question, concerning whether fundamental due process

requirements have been met, unnecessary.” Id. at 496. Thus, applying the

substantial compliance rule, see id. at 495, and despite the defendant’s failure to

deny that he had received actual notice, see id. at 492, the Oklahoma Supreme

Court nonetheless held in Graff that service was invalid based upon the statutory

requirements for service by personal delivery, where the process server served

“an employee, not the defendant, at that defendant’s place of employment,”

id. at 490.

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 In this case the district court acknowledged that Graff “explicitly replaced

strict compliance with the substantial compliance doctrine,” Aplt. App. at 102,

but distinguished its facts and holding as applying solely to service by personal

delivery and not to service by mail. The court instead applied the very broad

language regarding substantial compliance in Shamblin, which was decided after

Graff, to hold that acceptance of service by mail by someone allegedly

unauthorized was nonetheless substantial compliance in light of the defendants’

failure to deny that they had received actual notice of the lawsuit. But, after

Shamblin, the Oklahoma Supreme Court applied its holding in Graff to service by

mail in Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 13 P.3d 480

(Okla. 2000).

In Ferguson Enterprises, the plaintiff sent a summons by certified mail to a

defendant corporation’s principal place of business out of state, 7 but the return

receipt was marked “Refused.” Id. at 481 (quotation omitted). The defendant

became aware of the lawsuit upon receiving discovery requests from the plaintiff,

but apparently did not file an answer. See id. In moving to set aside the default

judgment, the defendant contended that the service was invalid because it was

refused by someone in the defendant’s office who was not authorized to accept or

7
Section 2004(E)(2)(c) provides that service may be made outside of
Oklahoma “in the manner prescribed by [§ 2004(C)(2)],” which governs service
by mail. There is no indication in Ferguson Enterprises whether the certified
mailing was sent with restricted delivery.

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refuse service. See id. at 481, 482 n.3. The Oklahoma Supreme Court rejected

the Court of Civil Appeals’ conclusion that the plaintiff substantially complied

with the service statute, see id. at 482, and citing Graff, held that “[h]ere there

was no service shown as service was refused by an allegedly unauthorized

person,” id. at 483-84.

Ferguson Enterprises is the most recent statement of state law by the

state’s highest court. Under the holdings in Graff and its progeny, Ferguson

Enterprises, we are constrained to conclude that the Oklahoma Supreme Court

would hold that a plaintiff fails to substantially comply with a service statute

specifying who is authorized to accept or refuse service on behalf of the

defendant, when service is accepted or refused by an unauthorized person.

Moreover, despite the apparent inconsistency between Graff and Ferguson

Enterprises on the one hand, and Shamblin and Vance on the other, we conclude

that the latter cases appear to be distinguishable from the facts of and issues

raised in this case. While Shamblin and Vance set forth in very broad terms an

approach to be taken when a plaintiff fails to strictly comply with a service

statute, in both of these cases the court was concerned with whether, despite

technical compliance with the applicable statutory requirements, the service was

nonetheless insufficient to satisfy fundamental due process requirements.

Shamblin involved the sufficiency of notice of a tax resale by a county to

the owners of the property, a married couple, and to the mortgagee. 967 P.2d at

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1203-04. The applicable statute for service by mail required only “notice by

certified mail, by mailing to the owner of said real estate . . . and to all

mortgagees of record of said real estate a notice stating the time and place of said

resale and showing the legal description of the real property to be sold.” Id. at

1204 n.4 (alterations omitted). The court considered whether service by mail

upon the wife by delivery to her husband was insufficient to satisfy due process.

Id. at 1203. The Oklahoma Supreme Court did not disagree with the trial court’s

conclusion that the county complied with the statutory requirements, which did

not include restricted delivery to the wife or a return receipt. See id. at 1204-05.

But the court proceeded to analyze whether the husband’s acceptance of service

for his wife was nevertheless constitutionally infirm, see id. at 1208-11,

concluding that “the service on the wife through her husband does not fall here

below the minimum standards of process that [were] her due.” Id. at 1211.

Likewise, as required by the statute, service was sent by certified mail to the

mortgagee of the property, but the lender contended that the service failed to

satisfy due process because an unauthorized person accepted the mailing. Id. at

1206. As to the lender, the court concluded that fact issues in dispute precluded

summary judgment. Id. at 1213. 8

8
The only notice in Shamblin that failed to comply with the applicable
statutory requirements was the separate publication notice, which was alleged not
to identify the location of the resale, among other irregularities. See id. at
1211-12. But the court’s conclusion that the irregularities did not affect the
(continued...)

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 In its constitutional analysis, Shamblin cited with approval another case in

which a notice by mail technically complied with the applicable statute, but was

held to be insufficient to satisfy due process. See 967 P.2d at 1209 n.30, 1212

n.45 (citing Luster v. Bank of Chelsea, 730 P.2d 506, 509-10 (Okla. 1986)

(“Although [plaintiffs] argue the trial court correctly found that all matters

pertaining to the tax certificates and the sale at the tax resale were in compliance

with the statutes, this is not determinative of this appeal.”)).

In Vance, the Oklahoma Supreme Court again considered whether service

which satisfied the statutory requirements was constitutionally infirm. In that

case, service in a foreclosure action was personally delivered to one of the

defendants, but she claimed it was invalid because her mental disability prevented

her from recognizing she had been sued. 988 P.2d at 1277. The court declined to

affirm the lower court’s grant of summary judgment on the constitutionality of the

service because of disputed facts concerning the defendant’s mental incapacity.

Id. at 1281.

In this case, as in Graff and Ferguson Enterprises, defendants did not raise

a constitutional claim that service was invalid despite technical compliance with

the applicable statute. They argued that service was invalid because it did not

8
(...continued)
constitutional efficacy of the publication notice is not pertinent to the issue raised
in this case, whether service by mail that is accepted by an unauthorized person is
valid service under § 2004(C)(2).

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satisfy the statutory requirements. In fact, after determining that the plaintiff

failed to substantially comply with the statute, the Oklahoma Supreme Court did

not reach the question of fundamental due process in Graff. See 814 P.2d at 496.

The other cases relied upon by the district court in finding substantial

compliance are also distinguishable from this case. In Nikwei v. Ross School of

Aviation, Inc., 822 F.2d 939, 943 (10th Cir. 1987), and Coulsen v. Owens,

125 P.3d 1233, 1237 (Okla. Civ. App. 2005), the defendants argued that service

was invalid because the certified mailings did not specify restricted delivery. But

in both cases, despite that irregularity, either the defendant himself or another

person authorized under § 2004(C)(2)(c) accepted or refused the service by mail.

See Nikwei, 822 F.2d at 943-44 (affirming trial court’s determination that service

at residence was refused either by defendant or by his wife); Coulsen, 125 P.3d at

1235 (noting process was served on the defendant who forwarded it to his

insurance company). Thus, these cases stand for a proposition not at issue in the

present case: when service is delivered to or refused by the addressee, or by an

authorized person, the failure to specify restricted delivery does not prevent

substantial compliance with the statute.

In contrast, it is undisputed here that Ms. Hukill failed to obtain restricted

delivery to Ms. Musgrove. Nor did she obtain delivery to “a person who is fifteen

(15) years of age or older who resides at [Ms. Musgrove’s] dwelling house or

usual place of abode,” or to an “officer or [an] employee of the registered office

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or principal place of business [of Spirits of Hope] who is authorized to or who

regularly receives certified mail.” § 2004(C)(2)(c). Thus, because Ms. Hukill’s

attempted service by mail was accepted by an unauthorized person, it did not

substantially comply with the statute and was invalid. See Ferguson Enter.,

13 P.3d at 484; Graff, 814 P.2d at 490. Moreover, although we concur with the

district court’s conclusion that defendants had actual notice of the lawsuit in this

case, the holdings in Graff and Ferguson Enterprises preclude us from finding,

based upon that conclusion, that Ms. Hukill substantially complied with the

requirements for service by mail under § 2004(C)(2). See 13 P.3d at 482, 484;

814 P.2d at 492.

Conclusion

Because the service in this case, attempted under Oklahoma law, did not

substantially comply with the law of that state, the district court did not have

personal jurisdiction over Ms. Musgrove and Spirits of Hope. Therefore, the

district court erred in denying defendants’ motion to set aside the default

judgment under Fed. R. Civ. P. 60(b)(4). We REVERSE the district court’s

judgment and REMAND with directions to vacate the default judgment entered

against these defendants.

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