USCA1 Opinion

____________________
____________________
No. 90-1798
No. 90-1798
PRECISION ETCHINGS & FINDINGS, INC.,
PRECISION ETCHINGS & FINDINGS, INC.,
Plaintiff, Appellee,
Plaintiff, Appellee,
v.
v.
LGP GEM, LTD.,
LGP GEM, LTD.,
Defendant, Appellee,
Defendant, Appellee,

______
MAURICE C. FEIGER,
MAURICE C. FEIGER,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
No. 91-1277
No. 91-1277
PRECISION ETCHINGS & FINDINGS, INC.,
PRECISION ETCHINGS & FINDINGS, INC.,

Plaintiff, Appellee,
Plaintiff, Appellee,
v.
v.
LGP GEM, LTD.,
LGP GEM, LTD.,
Defendant, Appellee,
Defendant, Appellee,

______
MAURICE C. FEIGER,
MAURICE C. FEIGER,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________

____________________
____________________
Before
Before
Torruella, Circuit Judge,
Torruella, Circuit Judge,
_____________
Timbers, Senior Circuit Judge,*
Timbers, Senior Circuit Judge,*
____________________
and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
_____________
____________________
____________________

Harold E. Krause for appellant, third-party defendant.

Harold E. Krause for appellant, third-party defendant.
________________
Richard D. Boriskin with whom Markoff & Boriskin was on brief
Richard D. Boriskin with whom Markoff & Boriskin was on brief
___________________
__________________
appellee, third-party plaintiff.
appellee, third-party plaintiff.
____________________
____________________
____________________
____________________

*Of the Second Circuit, sitting by designation.

*Of the Second Circuit, sitting by designation.

CYR,
CYR,
default

Circuit Judge.
Circuit Judge.
_____________
judgment

This appeal

entered

by the

concerns

district

the validity

court

of

notwithstandin

defect in the service of process which allegedly deprived the court

personal jurisdiction

over the defendant-appellant.

ings & Findings, Inc. brought the

Precision Et

present action in the United Sta

District Court for the District of Rhode Island against LGP

("LGP").
lant

LGP filed

Maurice Feiger.

a third party complaint against

The

third

addressed to Feiger by certified

party complaint

Gem, L

defendant-app
and summons

mail, return receipt requested, a

Brooklyn,

New York,

street address,

apartment in which Feiger resided.

service was

made upon an

apartment building.

rather than

to the

particu

The return receipt indicates t

occupant of another

apartment in the

Default was entered against Feiger in April 19

after he failed to answer LGP's complaint.

On
vacate

June 4,

1990, Feiger's

the default,

New York

counsel

alleging insufficient

filed a

motion

service of process.

though New York counsel attempted to appear in behalf of Feiger bef

the

United States

claim for damages,

not
5(b).

retained local

at the

he was not permitted

counsel as

Rhode Island

motion to set aside

judge made proposed

entry of a default

June 4 hearing

to do so because

required by

Without addressing Feiger's

the magistrate
the

Magistrate Judge

findings of fact

judgment against Feiger.

adopted the proposed findings and

on LG
Feiger

Local R

the defau

and recommen

The district co

the disposition recommended by

3

magistrate judge.
addressed Feiger's

Neither the magistrate judge nor the district co

June 4

motion to

set

ground of insufficient service of process.

aside the

default on

On July

26, 1990, Feiger

moved to vacate

once again on the ground that

process.

magistrate judge on the ground

promptly

the Third

filed

findings and
U.S.C.

that Feiger "had sufficient and tim

to

the

against him."

magistrate

disposition submitted by

judge's

Fei

recommen

the magistrate judge.

See
___

636(b) (1)(B).

The district
the third

court determined

appeared to

that Feiger

party complaint, notwithstanding

receipt evidencing

service of the

have been signed

had actual

accepted the magistrate

to vacate

summons and third

by an occupant of

a sufficient

jurisdiction over Feiger.*

's postjudgment

the ret

party compla

another apartment

The district co

judge's recommendation and denied

the default judgment,

provided

notice

the fact that

the three-apartment building where Feiger resided.

notice

to vacate was denied by

Party Complaint filed

objections

judgme

he had never been properly served

Following a hearing, the motion

knowledge of

the default

apparently on the basis

basis

for

the

the mot

that act

exercise of

perso

Finally, the district court denied Feig

motion to set

aside the default judgment

and Fei

appealed.

____________________
*Neither the magistrate judge nor the district court
*Neither the magistrate judge nor the district court
legal requirements of service of process.
legal requirements of service of process.
4

discussed
discussed

A default judgment
over

the person

of

entered by
the

a court

defendant is

which lacks

void,

jurisdict

General Contracting
___________________

Trading Co. v. Interpole, Inc., 940 F.2d 20, 21 n.1

___________
________________

(1st Cir. 199

and may be set aside at any time pursuant to Fed. R. Civ. P. 60(b)(
__ ___ ____
See generally
___ _________

11 C. Wright & A. Miller, Federal Practice & Procedu

__________________________

2862 (1973).

Personal

jurisdiction is established either by pro

service of process, see, e.g., Jardines Bacata, Ltd. v. Diaz-Marqu

___ ____ ______________________
__________
878 F.2d 1555,

1559 (1st Cir. 1989)

("[i]n the ordinary

district court acquires jurisdiction over a

of process"),

or

by the

defendant's

service of process, see, e.g.,

___ ____
F.2d

at 22

(personal

course,

defendant only by serv

waiver of

any

defect in

General Contracting & Trading Co.,

_________________________________

jurisdiction

may be

acquired

by consent

implied from conduct).

LGP elected to attempt service of process upon Feiger pursuant
Fed. R. Civ. P.
in which

4(c)(2)(c), in accordance with "the law

the district

court is held."

In

this case,

of the St

Rhode Isl

District Court Rule of Civil Procedure 4(d)(1), which is based on F

R. Civ. P.

4(d)(1), see Plushner

___ ________

v. Mills, 429
_____

A.2d 444, 445

(R

1981), required service:

[u]pon an individual other than an incompetent person by
delivering a copy of the summons and complaint to him person_______
ally or by leaving copies thereof at his dwelling house or
____ __
__ ___ ________ _____ __
usual place of abode with some person of suitable age and
_____ _____ __ _____ ____ ____ ______ __ ________ ___ ___
discretion then residing therein . . .
__________ ____ ________ _______
Dist. R. Civ. P. 4(d)(1) (emphasis added).

The Rhode Island service

the instant case
and complaint were
his dwelling

of process requirements were not met

since the return receipt indicates

neither delivered to

house or usual

summons and
apartment at
located.

LGP

complaint were
the

Feiger "personally" nor

place of abode."

district court noted, the return

Id.
__

Instead,

as

receipt indicates, at best, that

delivered to an

same street

that the summ

address

occupant of

where Feiger's

contends, nonetheless, that actual notice

a differ
apartment

of the th

party

action was

sufficient under

district court's exercise

precise

issue presented

Rhode Island

law to

support

of personal jurisdiction over Feiger.

appears not

to have

been addressed

by

Rhode Island courts.

The Supreme

Court of Rhode Island

that legislative enactments

followed and construed
the person
been
Ellis,
_____

Plushner, 429
________

314 A.2d

process] rules
guidance in
those

princi

relating to service of process

are to

strictly, since jurisdiction of the court o

of the defendant

made."

has "emphasized the

is dependent upon proper

A.2d

426, 427 (R.I.

it has

1974).

been [the Rhode

the precedents

of the [Rhode

at 445-446,

quoting Barthlein
_________

"In construing

[service

Island] practice to

of the federal

Island courts] are

service hav

courts, upon

whose ru

closely patterned."

446, quoting Nocera v. Lembo, 298 A.2d 800, 803 (R.I. 1973).
______
_____
defendant has received
courts, in conformity

actual notice of the action,

look

Id.
___
When

the Rhode Isl

with the federal practice, have determined t

service of process requirements are

6

to be "broadly interpreted,"

(citing

federal cases),

provided the

rather than an artificial one. . . ."

interpretation

is "a

natu

Id. quoting Blackhawk Heatin

___
________________

Plumbing Co. v. Turner, 50 F.R.D. 144, 145 (D. Ariz. 1970).

____________
______
Neither federal precedent nor Rhode
contention that

actual notice of the

Island caselaw supports LG

filing of the

third party c

plaint was sufficient to confer personal jurisdiction in these circ

stances.

The federal courts have made it abundantly clear that act

notice itself, without more,

ments of Fed. R.

is insufficient to satisfy the

Civ. P. 4(d)(1).

See, e.g.,
___ ____

requi

Echevarria-Gonzalez
___________________

Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988) ("[a]ctual notice

_______________
simply
cient

naming the person in the caption

to subject

court"); see
___

a defendant

to

of the complaint is insuf

the jurisdiction

also Mid-Continent Wood Products, Inc. v.

____ ___________________________________

F.2d 297, 301 (7th Cir. 1991) (citing cases).

defects

are excusable provided

see, e.g.,
___ ____

of the

distr

Harris,
______

Although "minor" for

___

actual notice has

been accomplish

Sanderford v. Prudential Ins. Co., 902 F.2d 897, 899 (1

__________
___________________

Cir. 1990) (district court not deprived of in personam jurisdiction

__ ________
failure to include return date
summons),

for responsive pleading in duly ser

____ ___

the rule nevertheless must be accorded at least substant

compliance, see, e.g., Daly-Murphy v.

___ ____ ___________
Cir. 1987)

(requiring

Winston, 837 F.2d 348, 355 (

_______

"substantial compliance"

with rule

4(d)(1

Zuckerman v. McCulley,
_________
________
read

the cases,

manner
______
of

7 F.R.D. 739, 741

substantial compliance

of service is required")
__ _______

building in which

(E. D. Mo. 1947)

with

the Rules

("[a]s

prescrib

(emphasis added) (service on jani

defendant resided not

substantial complianc

It

has been held

directly that

apartment in the same building is

Shin Shu, 30 F.R.D. 56 (S.D.N.Y.
________

delivery of

process to

a differ

not sufficient service.

Di Leo
______

1961) (service on daughter of def

dant who resided in separate apartment not sufficient).

Neither
indicate that

the cases

cited

by LGP,

actual notice would suffice

manner of service effected on Feiger.

at

446, the

constituted
effected

Rhode Island
substantial

by delivery

defendant's

nor

to defendant's

have

discover

to cure the defect

In Plushner v. Mills,
________
_____

Supreme Court
compliance

any we

where

found that
service

daughter while

in

429 A

"actual noti
of

process

she was

at
__

residence, even though the daughter maintained a separ

___________

_________

residence at the time.

The court

noted that the daughter possesse

key to the defendant's residence and had been placed in charge

dwelling during her father's absence.
the

daughter, therefore, was a

hold and that a substantial

____
dant,"

it decided

therein' under

that

a broad

she

Id.
___

of

Since the court found t

"trusted member of defendant's hou

______ __ ___________ ___

nexus existed between her and

"could be

considered

interpretation of Rule

the def

to be

4(d)(1), and

'resid

such

interpretation is allowed when defendant receives actual notice."

(emphasis added).
other

The undeveloped record in

the instant case, on

hand, simply cannot support a similarly "broad interpretatio

since no evidence was

presented that the person

to whom process

delivered

was a

member of

Feiger's

household, his

landlord, or

person having any "substantial connection" with him.**

Federal precedent and Rhode
specific rules

governing the precise

process are to be given

received
"actual

Island caselaw indicate only that

manner of effecting

service

"broad interpretation" when the defendant

"actual notice."

Neither

notice" itself suffices,

source of authority suggests t

absent substantial

the manner of service prescribed by rule.

compliance w

The present record does

enable a determination that there was substantial compliance with r

4(d)(1).

Therefore, unless Feiger waived any defect in the service

process, the case must be

remanded for further factfinding bearing

the issue of substantial compliance.

Unlike the absence of subject matter jurisdiction, the defense
lack of

personal jurisdiction may

be waived

by express

submissi

____________________
**Moreover,
**Moreover,

the Plushner court relied in part on a federal ca

the Plushner court relied in part on a federal ca
________
Nowell v. Nowell, 384 F.2d 951 (5th Cir. 1967), cert. denied, 390 U
Nowell v. Nowell, 384 F.2d 951 (5th Cir. 1967), cert. denied, 390 U
______
______
____ ______
956 (1968), which held that the federal service of process rule
956 (1968), which held that the federal service of process rule
satisfied by service upon the defendant's landlady, due to the "s
satisfied by service upon the defendant's landlady, due to the "s
stantial nexus" between landlord and tenant. In Plushner, the Rh
stantial nexus" between landlord and tenant. In Plushner, the Rh
________
Island Supreme Court explicitly called attention to the fact t
Island Supreme Court explicitly called attention to the fact t
Nowell had distinguished between service upon the landlord and "s
Nowell had distinguished between service upon the landlord and "s
______
vice upon a neighboring tenant . . . [because] the substantial ne
vice upon a neighboring tenant . . . [because] the substantial ne
that exists between tenant and landlord does not exist between tena
that exists between tenant and landlord does not exist between tena
themselves."
Plushner, 429 A.2d at 446, quoting Nowell, 384 F.2d
themselves."
Plushner, 429 A.2d at 446, quoting Nowell, 384 F.2d
________
______

953.
953.

Similarly, Lavey v. Lavey, 551 A.2d 692 (R.I. 1988), another c

Similarly, Lavey v. Lavey, 551 A.2d 692 (R.I. 1988), another c
_____
_____
in which the defendant was found to have had "actual notice" of
in which the defendant was found to have had "actual notice" of
lawsuit, provides no support for LGP's position.
The Lavey co
lawsuit, provides no support for LGP's position.
The Lavey co
_____
found that a residence, at which the defendant had dinner daily
found that a residence, at which the defendant had dinner daily
occasionally showered, watched television and picked up mail, could
occasionally showered, watched television and picked up mail, could
included within a broad interpretation of "dwelling house or . .
included within a broad interpretation of "dwelling house or . .
usual place of abode. . . ." Id. at 694-695. The present record
usual place of abode. . . ." Id. at 694-695. The present record
___
insufficiently developed to support such a finding.
insufficiently developed to support such a finding.
9

conduct, or failure to assert the defense.

hem Shipbuilding Corp., 308 U.S.
______________________
& Trading Co.,
_____________
F.2d 994,

See Neirbo Co.

___ __________

165, 168 (1939); General Contract

________________

940 F.2d at 22; Marcial Ucin, S.A.

__________________

996 (1st Cir.

1983).

v. Beth
____

As

v. SS Galicia,
__________

Feiger assiduously

attempted

assert the defense before the district court, we find no waiver.

Feiger first

raised the defense

by motion on

June 4, 1990,

day

of the

scheduled hearing

on

LGP's claim

for damages,

precluding waiver under Fed. R. Civ. P. 12(h)(1).

States, 857 F.2d 20,
______
712

21 (1st Cir. 1988);

F.2d 735, 738 (1st

submit

Cir. 1983).

At

ther

See Roque v. Uni

___ _____
___

Glater v. Eli Lilly & C

______
______________

no time did Feiger expres

to the exercise of jurisdiction by

the district court.

Mo

over, Feiger's conduct did not constitute participation in, or enco

agement of, the district
by conduct.

court proceedings so as to

amount to wai

See United States use of Combustion Systems Sales, I

___ _________________________________________________

v. Eastern Metal Products & Fabricators, Inc.,

____________________________________________
(M.D.N.C. 1986)

(collecting cases

and concluding

112 F.R.D.

685,

that though

ca

present "markedly different situations, [they] have the common fact

of

dilatoriness and participation

in, or encouragement

of, judic

proceedings"); see also General Contracting & Trading Co., 940 F.2d
___ ____ _________________________________
22

(collecting cases).

ing,***

see,
___

Feiger

did not

e.g., Wyrough & Loser, Inc.

____ _______________________

participate
v.

in any

he

Pelmor Laboratori
_________________

____________________

***Feiger's unsuccessful attempt to participate in the June 4 hear

***Feiger's unsuccessful attempt to participate in the June 4 hear
on LGP's claim for damages was not a waiver, since New York coun
on LGP's claim for damages was not a waiver, since New York coun
stated explicitly that he intended to challenge the sufficiency
stated explicitly that he intended to challenge the sufficiency
service of process at the hearing. See Marcial Ucin, 723 F.2d at
service of process at the hearing. See Marcial Ucin, 723 F.2d at
___ ____________
("general appearance by a defendant does not constitute a waiver
("general appearance by a defendant does not constitute a waiver
the defense of lack of jurisdiction over the person").
the defense of lack of jurisdiction over the person").
10

Inc., 376 F.2d 543, 547 (3d Cir. 1967) (finding waiver where defend
____
attended
see,
___

preliminary injunction

hearing),

seek affirmative

e.g., General Contracting & Trading Co.,

____ ____________________________________

(bringing

independent action arising

constitutes implied submission),

through extended

940

out of same

F.2d at

of submiss

Marcial Ucin, 723 F.2d

____________

(waiver found after defendant filed appearance,

23

transactional c

or lend an appearance

inaction, see, e.g.,

___ ____

reli

at

attended depositio

and waited four years before raising defense).

Feiger justly cannot be deemed to have submitted to the
tion

of the

judge's

district court

by filing

objections to

jurisd

the magistr

proposed findings and recommended disposition as was requi

by 28 U.S.C.

636(b)(1)

and Fed. R. Civ. P.

72(b) in order to

serve his right to de novo review of the recommended disposition.

__ ____
magistrate judge

did not address

Feiger's specific challenge

to

sufficiency of service of process, nor determine the manner of serv

sufficient under

Rhode Island

law.

Thus,

Feiger surely

been found to have waived the right to de novo

would h

review by the distr

__ ____
court had he
by

not objected to the recommended

section 636(b)(1) and

rule 72(b).

disposition as requi

See Park Motor Mart, Inc.

___ ______________________

Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).

______________

In these circumstanc

Feiger's objections impliedly reaffirmed his consistent

the

district court's

exercise of

personal

opposition

jurisdiction before

11

magistrate judge.****
er doctrine to
and

It would

represent a distortion of

construe Feiger's objections to

recommended disposition

as

waiver of

personal jurisdiction, especially since

the proposed findi

the

right to

issue before the magistrate judge

and the magistrate

judge made no specific finding that

on Feiger

cont

Feiger vigorously pursued

service of process

service effected

the wa

was sufficient.

from the out

Rather, by

service of process issue in the June 4 and July 26

the manner
raising

motions filed w

the

magistrate judge

district

court

consistently

under

and again

in

rule 60(b)(4),

preserved his

personal

his postjudgment
Feiger

motion to

promptly,

jurisdiction

plainly

defense based

defective service of process.

The default judgment is vacated and the case is remanded to

_______________________________________________________________

district court for further proceedings consistent with this opini

___________________________________________________________________
costs to appellant.
__________________

____________________

****When Feiger filed objections to the magistrate judge's propo

****When Feiger filed objections to the magistrate judge's propo
findings and recommended disposition, he requested that the distr
findings and recommended disposition, he requested that the distr
court "conduct a new hearing with all parties present and represen
court "conduct a new hearing with all parties present and represen
so that the facts in this very complicated commercial transaction
so that the facts in this very complicated commercial transaction
be brought before the Court and an appropriate decision made." In
be brought before the Court and an appropriate decision made." In
circumstances of the present case, Feiger's statement did not "
circumstances of the present case, Feiger's statement did not "
equivocally show an intention to submit to the district cour
equivocally show an intention to submit to the district cour
jurisdiction."
Jardines Bacata, Ltd., 878 F.2d at 1559 (waiver
jurisdiction."
Jardines Bacata, Ltd., 878 F.2d at 1559 (waiver
______________________
right to challenge personal jurisdiction may be found only if there
right to challenge personal jurisdiction may be found only if there
no other reasonable explanation of the conduct). On June 4, Fei
no other reasonable explanation of the conduct). On June 4, Fei
had challenged the sufficiency of service of process; he reasser
had challenged the sufficiency of service of process; he reasser
the same defense on July 26. There was no unequivocal showing of
the same defense on July 26. There was no unequivocal showing of
intention to submit to the jurisdiction of the district court.
intention to submit to the jurisdiction of the district court.
12