          United States Court of Appeals
                      For the First Circuit

No. 13-1384

                     MARIBEL VÁZQUEZ-ROBLES,

                       Plaintiff, Appellee,

                                v.

                         COMMOLOCO, INC.,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]



                              Before

               Thompson and Selya, Circuit Judges,
                 and McConnell,* District Judge.



     Thomas H. Hefferon, with whom John B. Daukas, Sarah K.
Frederick, Justin M. Kahler, and Goodwin Procter LLP were on brief,
for appellant.
     Alejandro Bellver Espinosa, with whom Bellver Espinosa Law
Firm was on brief, for appellee.


                          June 27, 2014




     *
      Of the District of Rhode Island, sitting by designation.
              SELYA, Circuit Judge.          No principle is more firmly

embedded in American jurisprudence than this one: when a claim is

proffered that threatens a person's life, liberty, or property,

that person is entitled to notice and an opportunity to be heard

before a court awards any substantial relief. See Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).                     In federal

court practice, this due process guarantee is facilitated by Rule

4 of the Federal Rules of Civil Procedure — a rule regulating

service of process.      Absent waiver or consent, a judgment that is

rendered without lawful service of process is null and void.                     See

Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d 21,

23 (1st Cir. 1992).      So it is here.

I.   BACKGROUND

              On July 26, 2012, plaintiff-appellee Maribel Vázquez-

Robles commenced a civil action in the United States District Court

for the District of Puerto Rico against her former employer,

defendant-appellant      CommoLoCo,      Inc.         Her     complaint    alleged

workplace      discrimination     claims      under       the     Americans      with

Disabilities Act, 42 U.S.C. §§ 12101-12213; Title VII of the Civil

Rights Act of 1964, id. §§ 2000e to 2000e-17; and local law.                      On

August   1,    the   plaintiff    attempted     to    serve      the   summons   and

complaint by serving Prentice-Hall Corporation System Puerto Rico,

Inc.   (Prentice),     which     she   believed      to     be   the   defendant's

registered agent for service of process in Puerto Rico.                          The


                                       -2-
defendant denies that Prentice was its registered agent at the

time, and there is no evidence that Prentice ever forwarded the

papers to the defendant.

             When no answer was filed, the plaintiff moved for, and on

September 5 obtained, an entry of default.                See Fed. R. Civ. P.

55(a).   The district court later empaneled a jury to liquidate the

defaulted claims; and the jury — again without any notice to or

appearance by the defendant — awarded the plaintiff $935,000 in

damages.

             In March of 2013, the plaintiff procured a writ of

execution.     With that writ in hand, a Deputy United States Marshal

seized funds equal to the full amount of the judgment from the

defendant's bank account.         The seizure of nearly one million

dollars got the defendant's attention: it immediately moved to

vacate   the   judgment   as   void,    see   Fed.   R.    Civ.   P.   60(b)(4),

maintaining that it had no prior knowledge of the action.                   The

plaintiff opposed the motion and, on March 25, the district court

denied it.     See Vázquez-Robles v. CommoLoCo, Inc., 932 F. Supp. 2d

259, 260 (D.P.R. 2013).

             On the same day, the defendant moved for reconsideration,

proffering additional documents.         The district court rejected this

motion in an unpublished order.         This timely appeal ensued.




                                       -3-
II.   ANALYSIS

           There    is   a   threshold   matter,   which   can   swiftly   be

dispatched.      The plaintiff insists that the defendant submitted

itself to the jurisdiction of the district court by filing a notice

of appeal without an explicit reservation of its right to contest

personal jurisdiction.

           It is true, of course, that "the defense of lack of

personal jurisdiction may be waived by express submission, conduct,

or failure to assert the defense."          See Precision Etchings, 953

F.2d at 25.   Here, however, there was no act or omission that could

fairly be said to constitute a waiver.        The defendant asserted its

jurisdictional defense, clearly and distinctly, in its initial

filing in the district court.       It persisted in that defense in its

subsequent district court submissions.         The only rulings made by

the district court went to the jurisdictional issue (that is, to

the efficacy of service of process).

           Under these circumstances, no reasonable person could

doubt that the defendant's notice of appeal was meant to continue

its previously stated challenge to personal jurisdiction.             Thus,

the notice of appeal simpliciter was sufficient to preserve the

jurisdictional defense.1       See Trust Co. of La. v. N.N.P. Inc., 104


      1
       After filing its first notice of appeal, the defendant
obtained an extension of time and filed a second notice of appeal
(No. 13-1421).    This second notice of appeal (which will be
dismissed as moot in the aftermath of this opinion) presaged the
mounting of a protective challenge to the damages award. Like the

                                    -4-
F.3d 1478, 1485-86 (5th Cir. 1997) (holding service of process

issue preserved although not specifically mentioned in notice of

appeal).

           This brings us to the main attraction: the district

court's denial of the motion to vacate the judgment.         Orders

denying Rule 60(b) motions are normally reviewed for abuse of

discretion, see United States v. One Star Class Sloop Sailboat, 458

F.3d 16, 22 (1st Cir. 2006), and the plaintiff suggests that this

standard obtains here. That suggestion is jejune. Where, as here,

the raw facts are not legitimately in dispute and a motion to

vacate is brought under Rule 60(b)(4) on the ground that the

judgment is void, appellate review is de novo.    See Esso Standard

Oil Co. (P.R.) v. Rodríguez-Pérez, 455 F.3d 1, 4-5 (1st Cir. 2006);

M & K Welding, Inc. v. Leasing Partners, LLC, 386 F.3d 361, 365

(1st Cir. 2004).   We proceed accordingly.

           Our obvious starting point is the record as it stood when

the district court denied the motion to vacate.   The motion papers

featured the affidavit of Brad A. Chapman, assistant general

counsel of the defendant's parent company (the Chapman Affidavit).

The Chapman Affidavit vouchsafed that Prentice was the defendant's

registered agent only until April 25, 2011, and that the defendant

on that date switched its registered agent from Prentice to CT



first notice of appeal, this second notice of appeal cannot fairly
be viewed as a waiver of the jurisdictional defense.

                                -5-
Corporation System (CT). Annexed to the Chapman Affidavit were two

exhibits: (1) a resolution of the defendant's board of directors

removing Prentice as the company's registered agent and appointing

CT in Prentice's place and stead, and (2) a certification from the

Secretary of State of Puerto Rico confirming that this change in

the identity of the company's registered agent was effectuated on

April 25, 2011 at 11:33 a.m.

            As part of its opposition to the motion, the plaintiff

tendered a declaration from its process server, Yma González

Marrero (the González Declaration), describing the steps she had

taken in an effort to ensure proper service of process.                         She

asserted    that   she    had   looked    at    the   website   set   up   by   the

Department of State of Puerto Rico, which listed Prentice as the

defendant's    registered       agent.         Moreover,    she    perused      the

defendant's most recent annual report to the Department of State

(covering    the   year    2011);   this       publicly-filed     report   listed

Prentice as the defendant's registered agent.

            She then contacted the law firm of Fiddler González &

Rodríguez (FG&R), where Prentice had an address.                   Some unnamed

person there confirmed that Prentice was the registered agent for

the defendant and that process could be delivered to Kenneth C.

Bury, presumably a Prentice functionary, at FG&R's offices.

González proceeded to serve Bury. According to her, Bury confirmed




                                         -6-
that Prentice was the defendant's registered agent and that he was

authorized to receive process on Prentice's behalf.

            With this descriptive backdrop in place, we turn to the

applicable law.     It is common ground that a judgment rendered in

the absence of personal jurisdiction is a nullity.        See World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).                 The

existence    of   such   jurisdiction    normally   depends   on   legally

sufficient service of process.      See Omni Capital Int'l, Ltd. v.

Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).           When a defendant

seasonably challenges the adequacy of service, the plaintiff has

the burden of showing that service was proper. See Rivera-López v.

Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992).

            In the federal courts, service of process is governed by

Rule 4 of the Federal Rules of Civil Procedure.        See United Elec.,

Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080,

1085 (1st Cir. 1992).       Rule 4(h), which deals with service of

process on corporations, contemplates service either in a manner

consistent with the law of the forum state,2 see Fed. R. Civ. P.

4(h)(1)(A), or on an "agent authorized by appointment or by law to

receive service of process," Fed. R. Civ. P. 4(h)(1)(B).           In this

case, Puerto Rico law controls the inquiry under Rule 4(h)(1)(A),

while federal law controls the inquiry under Rule 4(h)(1)(B).         See



     2
       For this purpose, the Commonwealth of Puerto Rico is the
functional equivalent of a state.

                                   -7-
4A Charles A. Wright et al., Federal Practice and Procedure § 1103

(3d    ed.   updated   Apr.   2014).         This   distinction       is    largely

theoretical: in most cases, relevant state and federal practice

will be substantially the same, see id., and the parties do not

suggest that there is a material difference here.

             Both in this court and in the court below, the parties

have argued the efficacy of service in terms of Puerto Rico law.

Puerto Rico offers a finite number of options for effecting service

on a corporation.      See P.R. Laws Ann. tit. 14, § 3781.                 One such

option lies at the epicenter of this appeal: a corporation may be

served by delivery of process to its "registered agent."                    Id.     If

the registered agent is itself a corporation, that delivery may be

made to any one of its enumerated officers.               Id.

             The term "registered agent" is a term of art that has a

well-defined meaning under Puerto Rico law.                     With respect to

corporations chartered in Puerto Rico, it refers to the requirement

that   every   such    corporation     must    denominate       and   maintain      a

registered agent within the Commonwealth.             See id. § 3542.             That

registered     agent   must   be     identified      in    the     corporation's

certificate of incorporation.        See id. § 3502(a)(2).            A change in

the registered agent's identity can be accomplished only by a

resolution of the corporation's board of directors amending its

certificate    of   incorporation      and    subsequent        filing     with   the

Department of State.      See id. § 3543.       Neither party contends that


                                       -8-
any other vehicle exists under Puerto Rico law for effectuating a

change of registered agent.

             The defendant does not deny that Prentice, in the person

of Bury, was served with the summons and complaint.                       It argues

instead that Prentice was not its registered agent at the time,

thus rendering the purported service nugatory.                      The plaintiff

demurs, insisting that Prentice was the defendant's registered

agent on the date of service.

             The    plaintiff's    position      is   marred   by    an    inherent

contradiction:       she   has   offered     nothing   to   dispute       that   the

defendant's board of directors resolved to remove Prentice as the

corporation's registered agent and to substitute CT.                  Nor has she

offered evidence to dispute that the documents embodying this

change were duly filed with the Department of State well over a

year before Bury was served.           The González Declaration, on which

the plaintiff chiefly relies, speaks to neither of these points,

and it is impossible to reconcile the plaintiff's insistence that

service was proper with her factual proffers.

             To be sure, the district court made this leap of logic

and concluded that Prentice was the defendant's registered agent.

In its order, the court characterized the González Declaration as

"credible"    but    labeled     the   Chapman    Affidavit    "unreliable."

Vázquez-Robles, 932 F. Supp. 2d at 264. But this ipse dixit cannot

withstand scrutiny: the Chapman Affidavit, with its attached board


                                       -9-
resolution and certificate from the Secretary of State, resolves

the   dispositive   points   —   and   neither   of   these   exhibits   is

contradicted or impeached by any significantly probative evidence.

Taking the González Declaration as true does not alter this reality

because González's account sheds no light on the critical facts.

           Given the state of the record, we are left with the

"definite and firm conviction" that the district court committed

clear error, United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948), when it branded the Chapman Affidavit "unreliable" and

treated the González Declaration as affording a basis for upholding

service.    The two exhibits annexed to the Chapman Affidavit

constituted hard evidence of the legally dispositive issues, and

their authenticity was not impugned in any way.          This compelling

documentary proof belies the district court's puzzling statement

that the Chapman Affidavit "failed to offer any realistic evidence

that" Prentice was no longer the defendant's registered agent at

the time of service.    Vázquez-Robles, 932 F. Supp. 2d at 264-65.

           The plaintiff makes two other arguments in an effort to

support the district court's assertion of personal jurisdiction.

We address them sequentially.

           The legal rationale for the plaintiff's first argument is

not clearly stated, but that rationale appears to implicate the

doctrine of apparent agency.     Under this doctrine, a principal may

be bound by a purported agent's acts, even in the absence of actual


                                  -10-
authority, when a third party reasonably believes the agency

relationship to exist and that reasonable belief can be traced to

the principal's manifestations.              See, e.g., Ophthalmic Surgeons,

Ltd. v. Paychex, Inc., 632 F.3d 31, 37 n.6 (1st Cir. 2011);

Restatement (Third) of Agency § 2.03 (2006); see also Grajales-

Romero v. Am. Airlines, Inc., 194 F.3d 288, 293 & n.2 (1st Cir.

1999) (noting that even though the nomenclature of apparent agency

may not always be used in Puerto Rico law, the essential elements

of the doctrine are recognized).               This apparent agency argument

fails both legally and factually.

             From   a   legal      perspective,    it    is    doubtful    that    the

doctrine of apparent agency has any purchase in the context of

service of process.       See Blair v. City of Worcester, 522 F.3d 105,

113 (1st Cir. 2008); Maiz v. Virani, 311 F.3d 334, 340 (5th Cir.

2002);     Ocasio-Lozada      v.    United   States,     No.    09-1192,    2009    WL

3698026, at *1 (D.P.R. Nov. 2, 2009); cf. 4A Wright et al., supra,

§   1097    (stating,    in     the   context     of    serving   process    on    an

individual's agent, that "authority to accept process . . . must

either be express or implied").              The plaintiff has not cited any

precedent that would lead us to conclude that Puerto Rico follows

a different rule.

             From a factual perspective, the plaintiff's argument is

even weaker.        After all, it is hornbook law that "[a]n agent's

authority to act cannot be established solely from the agent's


                                        -11-
actions; the authority must be established by an act of the

principal."    FDIC v. Oaklawn Aptmts., 959 F.2d 170, 175 (10th Cir.

1992)   (internal   quotation    marks    omitted);   accord   Restatement

(Third) of Agency § 2.03 (2006).          Puerto Rico law is consistent

with this tenet.    See Grajales-Romero, 194 F.3d at 293 (construing

Puerto Rico law).

            Here, the apparent agency claim rests on the González

Declaration.    But under the rule recounted above, any assurances

that González may have received from either Bury or the anonymous

person with whom she spoke at FG&R cannot be used to prop up the

plaintiff's apparent agency claim.

            This leaves only the defendant's 2011 corporate annual

report (a form filed with the Department of State).        See P.R. Laws

Ann. tit. 14, § 3851(a).        A second lesson drawn from agency law

teaches that apparent agency can only be established through a

third party's belief if that belief is reasonable.         See Grajales-

Romero, 194 F.3d at 293-94 (construing Puerto Rico law); see also

Bates ex rel. Murphy v. Shearson Lehman Bros., Inc., 42 F.3d 79, 82

(1st Cir. 1994); Kansallis Fin. Ltd. v. Fern, 40 F.3d 476, 480 (1st

Cir. 1994).    Viewed through this lens, Prentice's listing as the

registered agent in the annual report does not get the plaintiff

very far.

            The document bears the title "2011 Annual Report."

Although it was filed on June 13, 2012, the document purports to


                                   -12-
describe the state of the corporation's affairs for the year 2011.

We do not think that the plaintiff could reasonably rely on a

statement   in   this   document   to   pinpoint   the   identity   of   the

defendant's registered agent as of August 1, 2012 (the date of

service).

            The plaintiff's other argument builds on the fact that

the Department of State's website, an informal internet-based

compilation maintained by the Department for public convenience,

still listed Prentice as the defendant's registered agent when

service was attempted.      The record is pellucid that this listing

was in error.    The mills of government sometimes grind exceedingly

slow and, even though the identity of the defendant's registered

agent had been legally changed on April 25, 2011, it appears that

the Department of State simply had not gotten around to updating

the website.     There is not a shred of evidence, however, that this

lapse was attributable to any action of the defendant.

            Against this backdrop, the plaintiff argues that the

defendant has an affirmative obligation to police its public

records and ensure that all public presentations of its affairs

(such as the listing on the website) are accurate.              Since the

defendant neglected this obligation, the plaintiff's thesis runs,

the appropriate remedy would be to hold the defendant to the

incorrect information (here, to treat Prentice as if it remained

the defendant's registered agent).


                                   -13-
             The plaintiff tries to build this argument around two of

our earlier decisions. See Senior Loiza Corp. v. Vento Dev. Corp.,

760 F.2d 20 (1st Cir. 1985); Hosp. Mortg. Grp., Inc. v. Parque

Indus.     Rio    Canas,       Inc.,   653     F.2d    54    (1st    Cir.       1981).     In

particular,       she    argues      by     analogy   from     a    statement       that   "a

corporation [has a] duty to make its address known to the public by

maintaining an accurate record with the Department of State."

Hosp. Mortg., 653 F.2d at 56.                  This analogy is flawed, and the

plaintiff's reliance on the two cited decisions is mislaid.

             Both       of    our    earlier    cases       dealt    with       whether    the

plaintiffs had made sufficient efforts to locate the defendants so

as    to   open   the        door   under    Puerto     Rico    law       for    service   by

publication.3       See Senior Loiza, 760 F.2d at 22-23; Hosp. Mortg.,

653   F.2d   at     55-56.          Both    times,    service       had   been    attempted

unsuccessfully at the principal places of business reflected in the

Department of State's official records, but both defendants had

relocated without informing the Department of State.                             See Senior

Loiza, 760 F.2d at 21; Hosp. Mortg., 653 F.2d at 55-56 & n.4.                               We

determined that the plaintiffs had made efforts adequate to justify

service by publication.              See Senior Loiza, 760 F.2d at 23; Hosp.

Mortg., 653 F.2d at 56.



       3
      This inquiry was necessary because service by publication is
allowed only after the party to be served cannot be located
although pertinent attempts have been made. See P.R. R. Civ. P.
4.6(a).

                                             -14-
           The case at hand is a horse of a quite different hue.

The two cases relied on by the plaintiff involved defendants who

had not informed the Department of State of address changes. Here,

however, the defendant did all that was legally required: it

executed and filed the paperwork necessary to effectuate a change

in its registered agent.        See P.R. Laws Ann. tit. 14, § 3543.

Consequently, the cases are distinguishable.

           In all events, there is good reason to think that the

pertinent language from Senior Loiza and Hospital Mortgage should

be limited to the context of determining what antecedent efforts

are satisfactory to allow service by publication.       Both cases were

decided before the Supreme Court's decision in Omni Capital — a

decision that strongly reinforces our reluctance to recognize a

method of service of process not described in any Puerto Rico

statute or procedural rule.       There, the Court pointedly observed

that it would be "unwise for a court to make its own rule

authorizing service of summons."          484 U.S. at 109.        The Court

explained that "[l]egislative rulemaking better ensures proper

consideration of a service rule's ramifications within the pre-

existing structure and is more likely to lead to consistent

application."    Id. at 110.

           Let us be perfectly clear.      We appreciate the benefit to

the   public   that   attends   internet-based   summaries   of    official

information provided by government agencies.       One might reasonably


                                   -15-
argue,      as    a   matter   of   public   policy,    for   a   rule   requiring

corporations to ensure the accuracy of their listings on such

websites.        But the Puerto Rico legislature has not adopted such a

rule, and there is no principled way in which we can create such a

wide-ranging duty out of thin air.             This is particularly so when,

as in this instance, the website itself contains a disclaimer

stating that the Department of State "does not guarantee the

precision of the information presented."               We hold, therefore, that

the defendant had no duty to correct the Department of State's

mistake.4

III.       CONCLUSION

                 We need go no further.      We are not without sympathy for

the plaintiff who, despite good-faith efforts on the part of her

able counsel and her process server, has fallen through a crack

left open by the government. Nevertheless, a court's function in a

case like this is not to weigh the equities but, rather, to

determine as a matter of law whether the district court ever

acquired personal jurisdiction over the defendant. It did not: the


       4
       The Department has promulgated "standards of use" for its
website, adjuring users to notify it of any errors on the site.
But the plaintiff cites no authority to show that this standard
somehow creates a duty to third persons. See Dennis v. City Fed.
Sav. & Loan Ass'n, 21 P.R. Offic. Trans. 186, 200-02 (1988)
(explaining doctrine of "contract in the prejudice of a third
person"); Restatement (Second) of Contracts §§ 302, 304 (1981)
(explaining that only intended beneficiaries of contracts may
enforce their terms); see also Feingold v. John Hancock Life Ins.
Co., ___ F.3d ___, ___ (1st Cir. 2014) (noting "strong presumption
against third-party beneficiaries") [No. 13-2151, slip op. at 10].

                                        -16-
documentary      evidence   submitted      with   the   motion    to    vacate

establishes beyond hope of contradiction that the defendant changed

its registered agent from Prentice to CT on April 25, 2011.                 It

follows inexorably that the service of process attempted by the

plaintiff    —   service    on   Prentice    on   August   1,    2012   —   was

insufficient to hale the defendant into court.             The judgment is,

therefore, void.     The plaintiff will have to prove her case in the

ordinary course.

            The judgment of the district court is vacated and the

case is remanded for further proceedings consistent with this

opinion.    No costs.




                                    -17-
