                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                                                            July 9, 2007
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT         Charles R. Fulbruge III
                                                               Clerk


                              No. 06-20938
                            Summary Calendar



KELLY, SUTTER, MOUNT & KENDRICK, P.C., doing business as
Kelly, Sutter & Kendrick, P.C.; J DOUGLAS SUTTER,

                             Plaintiffs - Appellees,

v.

ROBERT ALPERT,

                             Defendant - Appellant.

                          --------------------
             Appeal from the United States District Court
         for the Southern District of Texas, Houston Division
                         USDC No. 4:05-CV-2213
                          --------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     The United States District Court for the Southern District of

Texas entered default judgment against Appellant, Robert Alpert,

after he failed to respond to a complaint filed against him. Alpert

moved to set aside the default judgment solely under Rule 60(b)(4),

claiming that he had not been validly served with process because

the person who received the summons and complaint, his housekeeper,

did not live at his residence at the time of service. The district

court held an evidentiary hearing and determined that the testimony

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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of Alpert and his housekeeper were not credible and that the

housekeeper was residing at the house at the time of service. The

court concluded that service of process was adequate. Alpert

subsequently filed a motion for new trial and a second motion to

set aside the default judgment, this time alleging excusable

neglect, which were both denied by the district court. Alpert

appeals to this Court.

       Whether   there   was    sufficient   service   of   process   upon   a

defendant is an issue of law that this court reviews de novo. Maiz

v. Virani, 311 F.3d 334, 338, 340 (5th Cir. 2002). “We review the

district court's findings of fact underlying its disposition of a

rule    60(b)(4)   motion      for   clear   error.”   Goetz   v.   Synthesys

Technologies, Inc., 415 F.3d 481, 483 (5th Cir. 2005). The issue of

whether or not service was proper in this case turns on the factual

determination of whether Alpert’s housekeeper was residing at his

home at the time of service.         After review of the record, we do not

find that the court clearly erred in determining that Alpert’s

housekeeper was a “person of suitable age and discretion then

residing” in Alpert’s home, thus satisfying the requirements for

service of process under Rule 4(e)(2). In addition, for the reasons

stated in the district court’s Memorandum and Opinion entered on

October 25, 2006, we agree that Alpert has failed to make the

requisite showing that the judgment should be set aside under

either Rule 59(e) or 60(b)(1).

       AFFIRMED.




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