                                                            FILED
                                                             DEC 26 2017
                                                         SUSAN M. SPRAUL, CLERK
 1                          NOT FOR PUBLICATION            U.S. BKCY. APP. PANEL
                                                           OF THE NINTH CIRCUIT
 2
 3                   UNITED STATES BANKRUPTCY APPELLATE PANEL
                               OF THE NINTH CIRCUIT
 4
 5   In re:                        )       BAP No.    NV-17-1135-BHTa
                                   )
 6   RICHARD DOMINGO,              )       Bk. No.    15-14153-ABL
                                   )
 7                  Debtor.        )       Adv. No.   15-01178-ABL
                                   )
 8                                 )
     RICHARD DOMINGO,              )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )       M E M O R A N D U M1
11                                 )
     VICTOR O. PORTUGUES-SANTANA, )
12                                 )
                    Appellee.      )
13   ______________________________)
14               Submitted Without Argument on December 1, 2017,
15                           Filed - December 26, 2017
16                Appeal from the United States Bankruptcy Court
                            for the District of Nevada
17
              Honorable August B. Landis, Bankruptcy Judge, Presiding
18
19   Appearances:      Joseph H. Reinhardt on brief for appellant, Richard
                       Domingo.2
20
21   Before:      BRAND, HOULE3 and TAYLOR, Bankruptcy Judges.
22
23
          1
             This disposition is not appropriate for publication.
24   Although it may be cited for whatever persuasive value it may have
     (see Fed. R. App. P. 32.1), it has no precedential value. See 9th
25   Cir. BAP Rule 8024-1.
          2
26           Appellee Victor O. Portugues-Santana did not file a brief
     or otherwise appear in this appeal.
27
          3
             Hon. Mark D. Houle, Bankruptcy Judge for the Central
28   District of California, sitting by designation.
 1        Chapter 74 debtor Richard Domingo appeals a judgment
 2   determining that a prepetition debt owed to Victor O. Portugues-
 3   Santana ("Portugues") was excepted from Domingo's discharge under
 4   § 523(a)(2)(A) on the basis of issue preclusion after trial.     In
 5   addition, Domingo appeals:    (1) the order granting his motion to
 6   dismiss the original complaint under Civil Rule 12(b)(5) due to
 7   Portugues's failure to comply with Civil Rule 4(m) but with leave
 8   to amend, which allowed Portugues to file an amended complaint
 9   after the statute of limitations under Rule 4007(c) had expired;
10   (2) the orders denying the motion to dismiss the amended complaint
11   and reconsideration of that order; and (3) the order denying an
12   additional motion to dismiss the amended complaint.
13        We conclude that the dischargeability judgment is void
14   because the bankruptcy court lacked personal jurisdiction over
15   Domingo.    Accordingly, the judgment is VACATED.
16                I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
17   A.   Prepetition events
18        Domingo is a 76-year-old veteran who now lives on a military
19   pension, social security benefits, and wages from various part-
20   time jobs.   Portugues resides in Puerto Rico, where he operates a
21   Heineken beer distributorship and Zen Spa, an upscale spa
22   business.
23        In 2006, Portugues decided to make a foray into the women's
24   clothing retail industry by opening a Victoria's Secret franchise
25   in Puerto Rico.   To that end, he sought the assistance of Domingo,
26
          4
             Unless specified otherwise, all chapter,    code and rule
27   references are to the Bankruptcy Code, 11 U.S.C.    §§ 101-1532, and
     the Federal Rules of Bankruptcy Procedure, Rules    1001-9037. The
28   Federal Rules of Civil Procedure are referred to    as "Civil Rules."

                                      -2-
 1   who at that time was a business broker and conducted his business
 2   operations through his entity, Rekomdiv International, Inc., in
 3   Washington D.C. ("Rekomdiv").    Domingo also had a relationship
 4   with former U.S. Senator, Birch Bayh, as a special assistant to
 5   Bayh.    At the time, Bayh was a partner at the Washington D.C. law
 6   firm of Venable, LLC and a board member of a large, national
 7   shopping mall owner.
 8           Domingo recommended that Portugues work with Bayh to assist
 9   him in establishing a business relationship with Victoria's
10   Secret.    Domingo explained to Portugues that "Victoria's Secret
11   owed many favors to Bayh" so "this was, for all purposes, a done
12   deal."    Domingo told Portugues that he had to retain both the
13   Venable firm and Rekomdiv to complete the deal.    Portugues met
14   with Domingo and Bayh in Washington D.C. to discuss the
15   establishment of a Victoria's Secret franchise in Puerto Rico to
16   be operated by Portugues.
17           Portugues paid a $400,000 retainer fee to Venable and a
18   $100,000 business broker's fee to Rekomdiv.    Portugues later paid
19   another $125,000 to Rekomdiv in pursuit of the business venture.
20   After entering into the retainer agreements and after the money
21   had flowed from Portugues to Rekomdiv, Portugues was advised that
22   no Victoria's Secret franchise could be established in Puerto Rico
23   because Victoria's Secret did not offer store franchises.
24   Nevertheless, Domingo assured Portugues that other business
25   opportunities were available aside from Victoria's Secret that
26   could be pursued on his behalf, including a women's clothing store
27   franchise called Mango or establishing franchises for Zen Spa.      No
28   other business opportunities panned out for Portugues.

                                       -3-
 1        Portugues filed suit against Domingo and Rekomdiv in the
 2   United States District Court for the District of Puerto Rico,
 3   alleging that Domingo's false representations about the
 4   availability of a Victoria's Secret franchise fraudulently induced
 5   him to enter into the retainer agreements with Venable and
 6   Rekomdiv.    The alleged claim, known as "dolo" in Puerto Rico, is
 7   essentially a claim for "fraud in the inducement."5
 8        Following a seven-day trial, the jury returned its verdict
 9   against Domingo and Rekomdiv for "dolo."    The jury assessed
10   damages in favor of Portugues and against Domingo and Rekomdiv for
11   $625,000, the full amount of money Portugues had paid toward the
12   Victoria's Secret venture.
13        On April 28, 2010, the District Court entered a judgment in
14   accordance with the jury's verdict ("Puerto Rico Judgment").
15   Domingo appealed the Puerto Rico Judgment to the First Circuit
16   Court of Appeals, which affirmed the dolo claim and Domingo's and
17   Rekomdiv's liability to Portugues.     Portugues-Santana v. Rekomdiv
18   Int'l, Inc., 657 F.3d 56 (1st Cir. 2011).
19   B.   Postpetition events
20        1.     The original dischargeability complaint
21        After Domingo filed his chapter 7 bankruptcy case, Portugues
22   filed a timely dischargeability complaint on October 21, 2016,
23   alleging that the Puerto Rico Judgment was nondischargeable under
24   § 523(a)(2)(A).
25
26        5
             "Dolo" can take two forms: (1) dolo in the formation of a
     contract; or (2) dolo in the performance of contractual
27   obligations. Domingo and Rekomdiv were found liable for dolo in
     the formation of contracts between Portugues and Rekomdiv and
28   Venable.

                                      -4-
 1        The bankruptcy court issued a summons on October 21, 2015.
 2   Copies of the summons and complaint were served on Domingo's
 3   bankruptcy counsel at his Las Vegas office by certified mail on
 4   October 29, 2015.   Domingo's bankruptcy attorney retired just two
 5   days later on October 31, 2015.
 6        Despite not being served with the summons and complaint,
 7   Domingo, with the assistance of adversary counsel, filed a timely
 8   answer to the complaint.   In his affirmative defenses, Domingo
 9   asserted insufficient service of process.   He raised this same
10   affirmative defense in his later-filed amended answer.
11        The 120-day period for Portugues to serve Domingo with the
12   dischargeability complaint expired February 18, 2016.
13        2.   Motion to dismiss the original complaint
14        On February 22, 2016, Domingo moved to dismiss Portugues's
15   complaint under Civil Rule 12(b)(5)6 for insufficient service of
16   process and Civil Rule 12(b)(6) for failure to state a claim upon
17   which relief could be granted (the "Motion to Dismiss").     Domingo
18   maintained that service failed because Portugues did not serve him
19   with the summons and complaint within the 120 days prescribed
20   under Civil Rule 4(m)7; mailing them to his former bankruptcy
21
          6
22           Civil Rule 12(b)(5), applicable here by Rule 7012,
     provides:
23
          (b) Every defense to a claim for relief in any pleading must
24        be asserted in the responsive pleading if one is required.
          But a party may assert the following defenses by motion:
25
          (5) insufficient service of process[.]
26
          7
             Civil Rule 4(m) in effect at the time and applicable here
27   by Rule 7004(a) stated:
28                                                        (continued...)

                                       -5-
 1   counsel was insufficient, especially since no evidence established
 2   that Domingo consented to such service.   Domingo further contended
 3   that no good cause existed to extend the service deadline.
 4   Domingo maintained that the dischargeability complaint had to be
 5   dismissed "with prejudice" because the 60-day statute of
 6   limitations under Rule 4007(c) had run on October 26, 2015.
 7   Alternatively, Domingo contended that dismissal was proper because
 8   the complaint failed to plead a claim under § 523(a)(2)(A).
 9        In opposition, Portugues argued that service of the summons
10   and complaint was effective because it was made on Domingo's
11   former bankruptcy counsel within the 120 days.
12        In its oral ruling, the bankruptcy court granted Domingo's
13   Motion to Dismiss under Civil Rule 12(b)(5) for insufficient
14   service of process, because Domingo had not been served with the
15   summons and complaint within the 120-day period as required under
16   Civil Rule 4(m).   The court also granted Domingo's Motion to
17   Dismiss under Civil Rule 12(b)(6), because the dischargeability
18   complaint failed to state sufficient facts to support a claim
19   under § 523(a)(2)(A).   However, the court dismissed the complaint
20
21        7
           (...continued)
          Time Limit for Service. If a defendant is not served within
22        120 days after the complaint is filed, the court — on motion
          or on its own after notice to the plaintiff — must dismiss
23        the action without prejudice against that defendant or order
          that service be made within a specified time. But if the
24        plaintiff shows good cause for the failure, the court must
          extend the time for service for an appropriate period. This
25        subdivision (m) does not apply to service in a foreign
          country under Rule 4(f), 4(h)(2), or 4(j)(1).
26
     The 120-day service rule has since been reduced to 90 days,
27   effective December 1, 2015. However, the bankruptcy court applied
     the former rule because the adversary proceeding was commenced on
28   October 21, 2015. We agree that the former rule applied here.

                                     -6-
 1   "with leave to amend" and to allow completion of service of the
 2   amended complaint within a reasonable time.       The court did not
 3   address the fact that the 60-day period within which to file
 4   Portugues's complaint under Rule 4007(c) had expired.
 5           The order for the Motion to Dismiss (the "May 31 Order")
 6   provided that the motion was granted, without prejudice, under
 7   Civil Rules 12(b)(5) & (6) and that Portugues could file an
 8   amended complaint within 14 days from the date of entry of the
 9   order.       In addition, the amended complaint had to be "personally
10   served" on Domingo within 28 days from the date of entry of the
11   order.8
12           3.     The amended dischargeability complaint and related
                    motions to reconsider and to dismiss
13
14           Portugues timely filed an amended dischargeability complaint,
15   again alleging that the Puerto Rico Judgment was nondischargeable
16   under § 523(a)(2)(A).       The bankruptcy court issued a summons for
17   the amended complaint on June 14, 2016, which expired on June 21,
18   2016.       Rule 7004(e).
19           The process server for Portugues filed a return of service
20   and affidavit indicating that she had attempted to serve Domingo
21   personally at his last known address at least five times between
22   June 7 and June 16 to no avail.9      Ultimately, a copy of the
23
24
             8
             The May 31 Order was later amended on June 22, 2016, to
25   correct the error stating that Domingo's counsel had appeared for
     Portugues at the hearing on the Motion to Dismiss. All other
26   terms of the order remained unchanged.
27           9
             Curiously, the process server attempted to serve Domingo
     three times before the court even issued the summons, on June 7, 9
28   and 11.

                                         -7-
 1   summons and amended complaint was mailed to Domingo on June 27,
 2   2016, six days after the summons had expired.
 3        In his answer to the amended complaint, Domingo challenged
 4   the service of process, arguing that service of the amended
 5   complaint with an expired summons was ineffective.
 6        Prior to filing his answer to the amended complaint, Domingo
 7   moved to dismiss the amended complaint on the basis that he was
 8   not "personally served" with the summons and complaint by the
 9   deadline of June 28, 2016, as instructed in the May 31 Order
10   ("Motion to Dismiss the FAC").
11        Portugues opposed the Motion to Dismiss the FAC, arguing that
12   timely service on Domingo by mail on June 27, 2016, was acceptable
13   despite the May 31 Order's directive to serve him "personally."
14        In reply, Domingo argued that service by mail was contrary to
15   the May 31 Order and was ineffective because he was served with an
16   invalid summons; the summons expired on June 21, 2016, but he was
17   not served with it until June 28, 2016.
18        The bankruptcy court denied the Motion to Dismiss the FAC,
19   ruling that, by diligently attempting to serve Domingo personally
20   with the summons and amended complaint and eventually completing
21   service on Domingo by mail on June 27, 2016, before the deadline
22   of June 28, 2016, Portugues had complied with the May 31 Order's
23   directive and Rule 7004(b)(2).   The court did not address the
24   expired summons issue.
25        Domingo timely moved for reconsideration of the court's order
26   denying the Motion to Dismiss the FAC.    He argued that service of
27   the amended complaint was invalid, contrary to what the court had
28   found, because the summons was expired when it was served and no

                                      -8-
 1   alias summons had been requested or issued.
 2        The bankruptcy court denied the motion to reconsider, stating
 3   only that Domingo presented no grounds for reconsideration.
 4        Meanwhile, on July 28, 2016, Domingo filed another motion to
 5   dismiss the amended dischargeability complaint ("Second Motion to
 6   Dismiss the FAC").    This motion was filed as a back-up in case the
 7   court was to deny the Motion to Dismiss the FAC, which it later
 8   did on September 7.   Domingo was now seeking dismissal of the
 9   amended complaint on the basis of untimely filing.     Domingo argued
10   that the bankruptcy court had abused its discretion by dismissing
11   the original complaint without prejudice and allowing Portugues to
12   file and serve an amended complaint after the 60-day statute of
13   limitations under Rule 4007(c) had run.     Domingo argued that such
14   ruling was an impermissible, sua sponte retroactive extension of
15   the 60-day deadline for filing a § 523(c) complaint.
16        The bankruptcy court denied the Second Motion to Dismiss the
17   FAC, noting that it had already considered the issues raised in
18   the motion.
19        4.   Trial on the amended complaint and judgment
20        After a one-day trial, the bankruptcy court issued its oral
21   ruling on Portugues's § 523(a)(2)(A) claim.     Overall, the court
22   did not find Domingo's testimony credible.     Ultimately, the court
23   determined that issue preclusion applied to the Puerto Rico
24   Judgment and found that the dolo claim met each of the elements
25   for a claim under § 523(a)(2)(A).      The court entered an order and
26   judgment consistent with its oral ruling.     The Puerto Rico
27   Judgment of $625,000 was excepted from Domingo's discharge under
28   § 523(a)(2)(A).   Domingo timely appealed.

                                      -9-
 1                             II. JURISDICTION
 2        The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334
 3   and 157(b)(2)(I).   We have jurisdiction under 28 U.S.C. § 158.
 4                                III. ISSUES
 5   1.   Did the bankruptcy court's ruling granting the Motion
 6   to Dismiss with leave to amend create an impermissible,
 7   retroactive extension of the deadline for filing dischargeability
 8   complaints under Rules 4007(c) and 9006(b)(3)?
 9   2.   Did the bankruptcy court err by implicitly ruling that
10   service of the amended complaint on Domingo was sufficient despite
11   the expired summons?
12   3.   Did the bankruptcy court err in applying issue preclusion to
13   the Puerto Rico Judgment to determine that the debt was
14   nondischargeable under § 523(a)(2)(A)?
15                          IV. STANDARDS OF REVIEW
16        The bankruptcy court's interpretations of the Federal Rules
17   of Civil Procedure and the Bankruptcy Rules are a question of law
18   reviewed de novo.   Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th
19   Cir. 2003) (Civil Rules); Unioil v. Elledge (In re Unioil, Inc.),
20   962 F.2d 988, 990 (10th Cir. 1992) (Bankruptcy Rules).
21        We review de novo the bankruptcy court’s determination that
22   issue preclusion was available.    Plyam v. Precision Dev., LLC
23   (In re Plyam), 530 B.R. 456, 461 (9th Cir. BAP 2015).    If issue
24   preclusion was available, we review the bankruptcy court’s
25   application of it for an abuse of discretion.    Id.
26        We review for an abuse of discretion the bankruptcy court's
27   decision to deny a reconsideration motion under Civil Rule 59.
28   Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011); Cruz v.

                                       -10-
 1   Stein Strauss Tr. # 1361, PDQ Invs., LLC (In re Cruz), 516 B.R.
 2   594, 601 (9th Cir. BAP 2014).
 3        A bankruptcy court abuses its discretion if it applies the
 4   wrong legal standard, misapplies the correct legal standard, or if
 5   its factual findings are illogical, implausible, or without
 6   support in inferences that may be drawn from the facts in the
 7   record.   TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820,
 8   832 (9th Cir. 2011).
 9                               V. DISCUSSION
10   A.   The bankruptcy court's ruling granting Portugues leave to
          amend the original complaint despite dismissal under Civil
11        Rule 12(b)(5) for failure to comply with Civil Rule 4(m)
          created an impermissible, retroactive extension of the
12        deadline for Portugues to file his dischargeability
          complaint.
13
14        Portugues's original complaint was timely filed on
15   October 21, 2015, before the October 26, 2015 deadline, but
16   Domingo was not served with the summons and original complaint
17   within the 120-day period prescribed in Civil Rule 4(m).   Although
18   Domingo's bankruptcy counsel was timely served by certified mail,
19   the bankruptcy court determined, and we agree, that service solely
20   on Domingo's bankruptcy counsel was insufficient given Rule
21   7004(b)(9).10   Portugues made no further efforts to serve Domingo
22   within the 120 days, even in light of Domingo's timely-filed
23   answer raising the affirmative defense of insufficient service of
24
25        10
             Rule 7004(b)(9) provides for service in the instance of an
     adversary proceeding against the debtor. It provides:
26
          (9) Upon the debtor, after a petition has been filed, . . .
27        by mailing a copy of the summons and complaint to the debtor
          at the address shown in the petition or to such other address
28        as the debtor may designate in a filed writing.

                                     -11-
 1   process.
 2        Thus, it is undisputed that service of the summons and
 3   original complaint was not in compliance with Civil Rule 4(m).
 4   That is why the bankruptcy court granted Domingo's Motion to
 5   Dismiss under Civil Rule 12(b)(5) and dismissed the complaint,
 6   which it was free to do.
 7        It is also undisputed that, prior to the expiration of the
 8   60-day deadline set forth in Rule 4007(c),11 Portugues never sought
 9   an extension of that deadline.    Moreover, the bankruptcy court
10   could not extend the deadline sua sponte and certainly could not
11   extend the deadline after it had expired.    See Willms v.
12   Sanderson, 723 F.3d 1094, 1100 (9th Cir. 2013).
13        Domingo argues that it was reversible error for the
14   bankruptcy court to dismiss the original complaint "without
15   prejudice."    He argues that, because the 60-day statute of
16   limitations under Rule 4007(c) had run prior to the dismissal of
17   the original complaint for failure to comply with Civil Rule 4(m),
18   Portugues was barred from bringing any dischargeability claims
19   against him.   Thus, the original complaint should have been
20   dismissed "with prejudice."    Domingo argues that when the court
21   entered the May 31 Order with the caveat "without prejudice" and
22
          11
             Rule 4007(c) provides for an extension of the deadline
23   within which to file a complaint to determine dischargeability of
     a debt under § 523(c). It provides, in relevant part:
24
          On motion of a party in interest, after hearing on notice,
25        the court may for cause extend the time fixed under this
          subdivision. The motion shall be filed before the time has
26        expired.
27   See also Rule 9006(b)(3), which provides that the court may
     enlarge the time for taking action under Rule 4007(c), but only to
28   the extent and under the conditions stated in that rule.

                                      -12-
 1   granted Portugues leave to amend the complaint, it constituted a
 2   sua sponte retroactive extension of the 60-day deadline in
 3   violation of Rule 4007(c) and Ninth Circuit law.
 4        Domingo's argument that the May 31 Order dismissing the
 5   original complaint "without prejudice" was erroneous is not well
 6   taken.   Civil Rule 4(m) mandates that, if the court dismisses the
 7   action for failure to comply with the rule, it must be dismissed
 8   "without prejudice."   In fact, it would have been error for the
 9   bankruptcy court to have dismissed the original complaint "with
10   prejudice" for insufficient service of process.    Thomas v. Furness
11   (Pac.) Ltd., 171 F.2d 434, 435 (9th Cir. 1948).    This is
12   consistent with the general rule that a dismissal for insufficient
13   service of process under Civil Rule 12(b)(5) is not a dismissal on
14   the merits.   5B Charles A. Wright & Arthur R. Miller, Federal
15   Practice and Procedure § 1353, at 345-46 (3d. ed. 2004).
16        However, we agree with the rest of Domingo's argument.
17   Granting Portugues leave to amend in this case was reversible
18   error.   While a Civil Rule 4(m) dismissal is a dismissal without
19   prejudice, a dismissal "without prejudice" does not mean "without
20   consequence."   Powell v. Starwalt, 866 F.2d 964, 966 (7th Cir.
21   1989).   "The 'without prejudice' condition permits a plaintiff to
22   refile the complaint as if it had never been filed."    Vasquez v.
23   N. Cty. Transit Dist., 292 F.3d 1049, 1061 (9th Cir. 2002), as
24   amended (Aug. 7, 2002) (quoting Mendez v. Elliot, 45 F.3d 75, 78
25   (4th Cir. 1995)).   A Civil Rule 4(m) dismissal does not, however,
26   give the plaintiff the right to refile without the consequence of
27   time defenses, such as the statute of limitations.    Mendez,
28   45 F.3d at 78; Powell, 866 F.2d at 966 (applying former Civil

                                     -13-
 1   Rule 4(j)).
 2           A plaintiff is precluded from refiling a case that was
 3   dismissed without prejudice for failure to perfect service of
 4   process where the statute of limitations has run, even if the
 5   dismissal was without prejudice.    Petrucelli v. Bohringer &
 6   Ratzinger, 46 F.3d 1298, 1304 n.6 (3d. Cir. 1995) (applying former
 7   Civil Rule 4(j)); Lambert v. United States, 44 F.3d 296, 298 (5th
 8   Cir. 1995) (district court's order dismissing plaintiff's suit
 9   without prejudice for failure to comply with Civil Rule 4(m) left
10   plaintiff in same position as if the first suit had never been
11   filed, and the second suit filed beyond the statute of limitations
12   was time barred); Powell, 866 F.2d at 966 (applying former Civil
13   Rule 4(j)); Gartin v. Par Pharm. Cos., 561 F. Supp. 2d 670, 682
14   (E.D. Tex. 2007).    See also Mann, 324 F.3d at 1091 (failure to
15   serve process within Civil Rule 4(m)'s 120-day period does not
16   affect the tolling of the statute of limitations unless the
17   failure to serve process caused the court to dismiss the action).
18           The 60-day statute of limitations under Rule 4007(c) was
19   tolled when Portugues filed his original complaint on October 21,
20   2015.    See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th
21   Cir. 2003) (statute of limitations for a suit based on federal law
22   is tolled when complaint is filed per Civil Rule 3, applicable
23   here by Rule 7003).    However, once his complaint was dismissed
24   under Civil Rule 12(b)(5) for failure to comply with the service
25   requirements of Civil Rule 4(m), it was as though the original
26   complaint had never been filed and the statute of limitations ran
27   on October 26, 2015.    Thus, even though the dismissal was
28   nominally "without prejudice," it was effectively "with prejudice"

                                       -14-
 1   because a new action was barred by the statute of limitations.
 2   United States v. Kenner Gen. Contractors, Inc., 764 F.2d 707, 709
 3   (9th Cir. 1985), superceded by rule as stated in Oyama v. Sheehan
 4   (In re Sheehan), 253 F.3d 507, 512 (9th Cir. 2001).
 5        Unfortunately, because the bankruptcy court dismissed the
 6   original complaint under Civil Rule 12(b)(5) for failure to comply
 7   with Civil Rule 4(m), it could not grant Portugues leave to amend
 8   the complaint, and its doing so impermissibly extended the statute
 9   of limitations deadline in Rule 4007(c).   Hence, the amended
10   complaint filed several months after the deadline was time
11   barred.12
12        The service of process issue was brought by Domingo together
13   with a motion to dismiss under Civil Rule 12(b)(6), which is odd
14   procedurally, and confused the issue.   If service of the original
15   complaint had been perfected and the matter before the court was
16   only a motion to dismiss that complaint under Civil Rule 12(b)(6),
17   the court could have granted leave to amend and the amended
18   complaint would have related back and avoided the statute of
19   limitations problem.   See Civil Rule 15(c)(1)(B), made applicable
20   here by Rule 7015; Morrissey Constr. Co. v. Gantes (In re Gantes),
21
          12
             The U.S. Supreme Court recently held that appeals-filing
22   deadlines established by statute are jurisdictional and may not be
     waived or forfeited, whereas a "court-made" rule setting an
23   appeals-filing deadline is a claim-processing rule that can be
     waived or forfeited and does not determine a federal appeals
24   court's jurisdiction. Hamer v. Neighborhood Hous. Servs. of Chi.,
     ___ U.S. ___, 2017 WL 5160782 (Nov. 8, 2017). This case turns on
25   whether Domingo was served with the original complaint in
     compliance with Civil Rule 4(m) and the expiration of the time
26   period for filing a dischargeability action as a result thereof.
     But, to the extent Hamer applies, Domingo did not waive or forfeit
27   his right to assert the expiration of the limitations period or
     the lack of timely service, as he asserted these defenses in his
28   answers and in motions to dismiss.

                                     -15-
 1   2016 WL 1169124, at *5-6 (9th Cir. BAP Mar. 23, 2016); In re Chaus
 2   Sec. Litig., 801 F. Supp. 1257, 1263 (S.D.N.Y. 1992).
 3        A federal court is without personal jurisdiction over a
 4   defendant unless the defendant has been served in accordance with
 5   Civil Rule 4.   Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.
 6   1982).   "Neither actual notice, nor simply naming the person in
 7   the caption of the complaint, will subject defendants to personal
 8   jurisdiction if service was not made in substantial compliance
 9   with Rule 4."   Id.   Because Domingo was not served with the
10   summons and original complaint in accordance with Civil Rule 4,
11   the bankruptcy court lacked personal jurisdiction over him.     As a
12   result, the nondischargeability judgment is void.   Tuli v.
13   Republic of Iraq (In re Tuli), 172 F.3d 707, 712 (9th Cir. 1999)
14   (judgment entered without personal jurisdiction over the parties
15   is void).
16        Because the § 523(a)(2)(A) judgment is void, we need not
17   address the other issues raised by Domingo or the pretrial orders
18   denying Domingo relief, including the bankruptcy court's decision
19   to deny reconsideration of the order denying the Motion to Dismiss
20   the FAC.
21                               VI. CONCLUSION
22        For the foregoing reasons, we VACATE the judgment determining
23   that the Puerto Rico Judgment was excepted from Domingo's
24   discharge under § 523(a)(2)(A).
25
26
27
28

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