
USCA1 Opinion

	




          December 29, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1303                                                UNITED STATES,                                      Appellee,                                          v.                 LUZ AIDA RODRIGUEZ, a/k/a LUZ AIDA RODRIGUEZ RIVERA,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Susana Cortina de Cardenas, on brief for appellant.               __________________________               Guillermo  Gil, United States Attorney, and Jose M. Pizarro-               ______________                              ________________          Zayas, Assistant United States Attorney, on brief for appellee.          _____                                  __________________                                  __________________                 Per  Curiam.   Appellant Luz  Aida  Rodriguez appeals  a                 ___________            memorandum order by the United  States District Court for the            District of Puerto  Rico denying her  motion for relief  from            judgment pursuant  to Fed. R.  Civ. P. 60(b)(4)  & (6).   The            gravamen of  appellant's argument  is that  the judgment  was            void  because the court lacked jurisdiction due to inadequate            service of process.  We affirm.                                      Background                                      Background                 In 1971, the  Farmers Home Administration [FHA]  granted            appellant and her  then husband a mortgage loan  secured by a            lien  over appellant's  property  in Can vanas,  Puerto Rico.            Appellant  assumed the entire obligation after being divorced            from her husband in 1972.  In September 1991, after appellant            had fallen  behind in  the installment  payments, the  United            States,  on behalf  of the  FHA, filed  a judicial  action in            federal   district   court  for   collection  of   money  and            foreclosure of the mortgage.  On September 24, 1991, a United            States Deputy  Marshall personally  delivered to  appellant's            residence a  copy of  the summons and  the complaint  in this            case.   The Deputy  Marshall testified  that the  papers were            accepted by appellant's son.                   Appellant  failed to appear  and a default  judgment was            entered  on November  15, 1991.   An  order for  execution of            judgment  was entered  on February  13, 1992,  and a  writ of            execution on February 24.  A notice of  sale was published on                                         -2-            April 10, 1992, and a public sale  was held on June 10.   The            property was awarded  to the highest bidder and  the sale was            confirmed by the district court on September 9, 1992.                 On September 20,  1992, appellant moved in  the district            court  for  the case  to  be  dismissed  for lack  of  proper            service.   According  to affidavits  filed  with the  motion,            appellant attested that  she had not been served  with a copy            of the  complaint and that she  had lived alone for  the past            four years.  Her son further attested that he had  never been            served with  a copy  of the summons  or complaint.   Hearings            were held in December 1992 and January 1993 at which oral and            documentary  evidence was presented.  Based on this evidence,            the  court found  that  the Deputy  Marshall  had served  the            appellant, through her son, at the appellant's dwelling place            in accord with Fed. R. Civ. P.  4(d)(1).  The court found the            contrary attestations  of  appellant and  her son  to be  not            credible.  As a consequence,  the court denied the motion for            relief from judgment.                                      Discussion                                      Discussion                 Appellant  asserts that  the  district  court  erred  in            finding  that process  had been properly  served upon  her in            this case.  We review  the court's factual findings for clear            error.  Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972                    _______________     ___________________________            F.2d 453, 457 (1st Cir.  1992).  "[W]hen factual findings are            based   on  determinations   regarding  the   credibility  of                                         -3-            witnesses [Fed. R. Civ. P.]  52 demands that the appeal court            accord even greater deference to the trial court's findings."             Rodriguez-Morales v. Veterans Admin., 931 F.2d 980, 982 (1st             _________________    ______________            Cir.  1991) (citing  cases).   We  usually  review a  court's            denial  of  a  Rule  60(b)   motion  only  for  an  abuse  of            discretion.  Cotto  v. United States, 993 F.2d  274, 277 (1st                         _____     _____________            Cir. 1993).    However, "[a]  default judgment  entered by  a            court  which  lacks  jurisdiction  over  the  person  of  the            defendant is void,"   Precision Etchings & Findings,  Inc. v.                                  ___________________________________            LGP Gem, Ltd., 953 F.2d 21, 23 (1st Cir. 1992), and "[i]f the            ____________            judgment is void, the district court has no discretion but to            set aside the  entry of the  default judgment,"   Echevarria-                                                              ___________            Gonzales v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988).            ________    _______________                 Pursuant  to Fed. R. Civ. P.  4(d)(1) service of process            may be made                  by leaving copies [of the summons and complaint] at                 the  individual's dwelling house  or usual place of                 abode  with   some  person  of   suitable  age  and                 discretion then residing therein            At the  hearing on  the Rule 60  motion, the  Deputy Marshall            testified that he  had served a copy  of the summons  and the            complaint  upon appellant's son at her dwelling.  Appellant's            son  denied  having  been served.    Furthermore,  the Deputy            Marshall  indicated that the person  whom he served seemed to            be about fifteen  or sixteen years old.   Appellant's son was                                         -4-            at  the time  twenty four.    The district  found appellant's            son's denial  of having  been served not  credible.   It also            found that the discrepancy in ages was explicable by the fact            that appellant's son  looked younger than his age.   In light            of  the  deference  owed  to  the  district  court in  making            credibility determinations,  we find  no clear  error in  the            court's  finding  that  process  was  served  on the  son  at            appellant's house.                 Appellant also contends  that the son upon  whom process            was  allegedly served did not reside in appellant's house and            thus  was  not  a  proper recipient  of  process  under  Rule            4(d)(1).  The  only evidence of  appellant's son residing  at            her  house was  the testimony  of the  Deputy Marshall.   His            testimony shows that the person whom he served at appellant's            dwelling  identified himself as appellant's son and that from            this  the Deputy Marshall  assumed that he  resided therein.1                                            ____________________            1.  The following evidence was presented at the hearing:                 Counsel:  How  do you know  [the person served]  was her            son?                 Marshall:  He told me he  was Mrs. Lu[z] Ida Rodriguez's            son.                 Counsel:  He told you.  Did he tell you he lived there?                 Marshall: Yes, he did.                 Counsel:  How did he say that?                 Marshall: Well, I was looking for Mrs. Luz Ida Rodriguez            at  that address  and the  boy happened  to be there,  and he            said, "Yes,  it is my mother."  That is  the way I served the                                         -5-            Appellant's  son, on the other hand, denied having resided at            his mother's  house when  process was  allegedly served.   He            testified that at the time in question he was living with his            wife  and chidren at the  home of his  wife's parents.  While            the  district court  made  no specific  finding that  the son            resided  in appellant's dwelling, such a finding was implicit            in his decision.  See Home-Stake Production Co, C.A. v. Talon                              ___ _____________________________     _____            Petroleum, 907 F.2d 1012, 1017 (10th Cir. 1990).              _________                 Where, as  the court  supportably found  in the  instant            case,  a defendant has  received actual notice  of an action,            service   of  process   requirements   are  to   be  "broadly            interpreted," see, e.g., Nowell v. Nowell, 384 F.2d 951  (5th                          ___  ___   ______    ______            Cir.  1967), cert.  denied,  390 U.S.  956  (1968); Adams  v.                         ____   ______                          _____            School   Board,  53  F.R.D.   267,  268  (D.Pa.   1971),  and            ______________            "substantial compliance" with the  requirements suffices, see                                                                      ___            Precision Etchings, 953 F.2d at  24 (citing cases).  In cases            __________________            where actual  notice has been  received, service on  a person            linked by a  "substantial nexus"  to the  defendant has  been                                            ____________________            paper, through him.                 Counsel:  I  don't understand[.  T]he boy happened to be            there?  What does that mean?                 Marshall: The boy was there.  In the house.                 Counsel:  And how do you know the . . . boy lived in the            house?                 Marshall: Because   he  told  me   that  [he]  was  Mrs.            Rodriguez' son.  And that was at that address.                                         -6-            held to meet  the requirements of Rule 4(d)(1).   See Nowell,                                                              ___ ______            384 F.2d at 953 (service  on defendant's landlady who resided            in separate apartment building from defendant  found adequate            where  "substantial  nexus"   existed  between  landlady  and            defendant); see  also M. Lowenstein  & Sons, Inc.  v. Austin,                        ___  ____ __________________________      ______            430  F.Supp. 844,  845  (S.D.N.Y.  1977)  (daughter  who  was            visiting  home from  school and  stayed  overnight was  "then            residing" at residence for purposes of Rule 4(d)(1)).  In the            instant case, the  record supportably shows that  appellant's            son answered  the door at her house when  she was not at home            and  was therefore  a trusted  member of  the household.   In            light  of the "substantial  nexus" between appellant  and her            son, we find  no clear error in the  court's implicit finding            that  appellant's son  was  "residing" in  her house  for the            purposes  of Rule  4(d)(1).2   The court did  not err  in its            denial of the Rule 60(b)(4) motion.                                            ____________________            2.  A  similar  result was  reached by  the Supreme  Court of            Rhode Island in Plushner v.  Mills, 429 A.2d 444 (R.I. 1981).                            ________     _____            In  Plushner defendant's daughter was found to have "resided"                ________            in defendant's household for purposes of receiving service of            process even though she maintained a separate residence.  The            court  found that she  was a  "trusted member  of defendant's            household  and that a  substantial nexus existed  between her            and defendant."   Id. at 446.  Although the court in Plushner                              __                                 ________            was  interpreting  the  Rhode  Island  rule  for  service  of            process, that rule, in relevant part,  is almost identical to            Fed. R.  Civ. P. 4(d)(1)  and, in interpreting it,  the Rhode            Island courts  "look for  guidance in the  precedents of  the            federal courts, upon  whose rules those of [Rhode Island] are            closely patterned."  Id. at 445 (quoting Nocera v. Lembo, 298                                 __                  ______    _____            A.2d 800, 803 (R.I. 1973)).                                         -7-                 Appellant  also   contends  that  the  court   erred  in            receiving and considering  evidence on issues other  than the            adequacy  of the  service of  process  at the  hearing.   She            further contends that  her right to due  process was violated            by  the consideration  of  such evidence  since she  had been            unable to conduct adequate discovery before the hearing.                   In  advance of the  hearing, the  court had  ordered the            government to  produce evidence of the "amounts due and owing            to  the  government  in this  case"  and  had instructed  the            defendant   to   bring   in   evidence   setting  forth   her            understanding of the amounts due.   The record indicates that            the court was aware that the issue of the amount owed was not            before   the  court   but  considered   the   information  as            "background" to  the Rule  60(b)(4) motion.   Moreover,  this            background  evidence was relevant to the court's finding that            appellant had actual notice of  the foreclosure action.3   We            find no abuse of  discretion in the court's consideration  of            this  "background"  evidence.     Furthermore,  even   though            appellant had a limited time in which to prepare her response            to the  government's evidence  of the amount  due, we  do not            find  that she suffered sufficient prejudice to implicate the            federal due process clause.                                            ____________________            3.  For  example,  the  government  presented  evidence  that            appellant  attempted to  make a  partial  payment to  the FHA            eight days after  the summons was served and  that, when this            payment  was returned, appellant  was personally  informed of            the existence of the proceedings against her.                                         -8-                 The denial  of  the motion  to  vacate the  judgment  is            affirmed.            ________                                         -9-
