                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2005

Gambone v. Lite Rock Drywall
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3628




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Recommended Citation
"Gambone v. Lite Rock Drywall" (2005). 2005 Decisions. Paper 1584.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1584


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                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                        No. 03-3628


                SALVATORE GAMBONE; SUSAN GAM BONE;
               AMERICO MOSCARIELLO; VERA MOSCARIELLO;
                     VINCENT CANE; BARBARA CANE

                                            v.

                   LITE-ROCK DRYW ALL CORP.; ADVANCED
                      CONSTRUCTION M ATERIAL CORP.;
                      JOSEPH LUONGO; THOMAS BOBST;

                                                 Joseph Luongo,

                                                       Appellant


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 01-cv-01071)
                      District Judge: Honorable Robert F. Kelly


                               Argued December 13, 2004

       Before: AMBRO, VAN ANTWERPEN and STAPLETON, Circuit Judges

                           (Opinion filed: January 5, 2005)

Eugene Orlando, Jr., Esquire (Argued)
Orlando & Strahn
5341 Perkiomen Avenue
Reading, PA 19606

      Attorney for Appellant
James J. Oliver, Esquire
Christine P. Oliver, Esquire (Argued)
Oliver, Caiola & Gowen
2500 DeKalb Pike, Suite 100
East Norriton, PA 19401

       Attorneys for Appellees




                                           OPINION


AM BRO, Circuit Judge

       Because we write solely for the benefit of the parties, we do not set forth the facts

giving rise to this appeal. Joseph Luongo (“Luongo”) appeals the District Court’s August

7, 2003 denial of his motion to strike the default judgment entered against him on

September 27, 2001. He argues that i) service of process was not properly effected and ii)

the plaintiffs failed to allege sufficient minimum contacts to justify the District Court’s

exercise of in personam jurisdiction over him. For the reasons given below, we affirm

the judgment of the District Court.

                                     I. Service of Process.

       Federal Rule of Civil Procedure 4 provides in pertinent part that “service upon an

individual . . . may be effected in any judicial district of the United States . . . by

delivering a copy of the summons and of the complaint to the individual personally . . . .”

Fed. R. Civ. P. 4(e)(2). “A default judgment entered when there has been no proper

service of the complaint is, a fortiori, void, and should be set aside.” Gold Kist, Inc. v.

                                                2
Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985) (citing Fed. R. Civ. P. 60(b)(4)).

       We review the District Court’s findings of fact for clear error, Universal Minerals,

Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir. 1981), but exercise plenary review over

the District Court’s legal interpretation of the Federal Rules of Civil Procedure, including

service of process under Rule 4, Bradgate Assoc. v. Fellows, Read & Assoc., 999 F.2d

745, 749 (3d Cir. 1993).

       It is settled that “a face to face encounter and an in hand delivery of the papers is

not always essential” under Rule 4(e)(2). 4A Charles Alan Wright & Arthur R. Miller et

al., Federal Practice and Procedure § 1095 (3d ed. 2002). “If the defendant attempts to

evade service or refuses to accept delivery after being informed by the process server of

the nature of the papers, it usually is sufficient for the process server . . . simply to leave

them in the defendant’s physical proximity,” as Rule 4 guards “the objective of giving

notice to the party to be served.” Id.

       Numerous federal courts have applied this principle and held personal service to be

sufficient in the absence of in-hand delivery. See, e.g., Modern Elec. Corp. v. Walsh, 197

F.R.D. 196 (D.D.C. 2000) (service is sufficient when the process server, in attempting to

serve the defendant, allows the documents to fall to the defendant’s feet and returns

shortly thereafter to find the documents no longer lying on the ground); Roth v. W.T.

Cowan, Inc., 97 F. Supp. 675 (D.C.N.Y. 1951) (service is sufficient when the defendant

actually received the summons and complaint by picking them up from the seat of a truck



                                                3
where they had been left by the process server after the defendant had engaged in

deliberate evasion of personal service).

       The two essential factors that justify relaxed personal service are i) the defendant’s

active evasion of service and ii) clear evidence that the defendant actually received the

papers at issue when allegedly served. In this case, the District Court was satisfied that

both of these factors were present. It concluded that after a series of thwarted attempts at

personal service—which clearly demonstrated Luongo’s active evasion of

service—“leaving the papers on the doorstep after the door was slammed and announcing

‘you have been served’ was sufficient personal service” when evidence clearly

demonstrated that Luongo actually received the papers. Gambone, 2003 WL at *3. For

the numerous reasons well stated in the District Court’s opinion, we agree.

                                 II. Personal Jurisdiction.

       Luongo argues that the District Court deprived him of due process of law by

exercising in personam jurisdiction over him on the basis of insufficiently alleged

minimum contacts with the Commonwealth of Pennsylvania. This argument ignores,

however, that the plaintiffs alleged violations of, inter alia, the Securities Exchange Act

of 1933 (“‘33 Act”).1

       We have previously held “that a federal court’s personal jurisdiction may be



  1
     The District Court held that Luongo had waived his personal jurisdiction defense by
failing to file a timely responsive pleading. Because the `33 Act clearly establishes a
basis for personal jurisdiction, we do not address the District Court’s waiver analysis.

                                              4
assessed on the basis of the defendant’s national contacts when the plaintiff's claim rests

on a federal statute authorizing nationwide service of process.” Pinker v. Roche Holdings

Ltd., 292 F.3d 361, 369 (3d Cir. 2002) (emphasis added). Recognizing the federal basis

of the ‘33 Act claim and the Act’s provision for nationwide service of process, the

“[m]ere statement of [the] contention [that the complaint does not allege sufficient

minimum contacts with the Commonwealth of Pennsylvania] reveals its fatal flaw: It is

not [Pennsylvania] but the United States ‘which would exercise its jurisdiction over

[Luongo].’” Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974) (citations omitted).2

       The only relevant jurisdictional question under the ‘33 Act claim is whether the

plaintiffs alleged sufficient minimal contacts between Luongo and the United States. It

cannot seriously be argued that they did not. For example, the plaintiffs’ complaint

alleged that, while present in the State of Arizona, Luongo “acted to cause economic




  2
     We acknowledge that Mariash concerned the Securities Exchange Act of 1934 and
that, as Luongo stresses, § 22 of the ‘33 Act (unlike the nationwide service provision of
the 1934 Securities Exchange Act) states that suit “may be brought in the district . . .
where the offer or sale took place if the Defendant participated therein.” 15 U.S.C. §
77v(a). This portion of § 22 is a venue, not a jurisdiction, provision, and the benefit it
confers can be and was in this case waived by not being raised. The more pertinent point
is that the ‘33 Act provides for nationwide service of process, which under Pinker
empowers the District Court to exercise in personam jurisdiction over Luongo on the
basis of his contacts with the United States.
        Moreover, because the transaction the complaint alleges “defraud[ed Plaintiffs] of
funds” was the sale of stock in Pennsylvania, we read the complaint to allege that
Luongo, although physically in Arizona, participated in that Pennsylvania sale. Thus,
even § 22 of the ‘33 Act is of no avail to Luongo.

                                             5
harm to Plaintiffs and defraud them of funds.” App. at 24.3

                                    III. Conclusion.

       For these reasons we affirm the District Court’s Order denying Luongo’s motion to

strike the default judgment.




  3
   As for the remaining state law claims, the District Court properly exercised
supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

                                            6
