At page 1135 Jurisdiction without effective service of process14 citing cases[A]bsent effective service of process a court is without jurisdiction to render a personal judgment against a defendant.
- Michael Grecco Prods., Inc. v. Black Connections LLC, No. 3:23-cv-00516 (E.D. Va. May 17, 2024). ([A]bsent effective service of process a court is without jurisdiction to render a personal judgment against a defendant.)
- Chen v. Commodore Mgmt. Co., No. 8:23-cv-01838 (D. Md. Oct. 29, 2023). Jan. 27, 2022) (citing Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998); FDIC v. Schaffer, 731 F.2d 1134, 1135-36 (4th Cir. 1984)).
- Chandler v. Maynard, No. 3:22-cv-00094 (E.D. Va. May 3, 2023).See, e.g., Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998); FDIC v. Schaffer, 731 F.2d 1134, 1135-36 (4th Cir. 1984).
- Arnold v. Phoenix Spirit Grp., LLC, No. 7:18-cv-00050 (E.D.N.C. Apr. 7, 2020).Corp. v. Schaffer, 731 F.2d 1134, 1135-36 (4th Cir. 1984); Cherry v. Spence, 249 F.R.D. 226, 228-29 (E.D.N.C. 2008).
- Auto Owners Ins. Co. v. Rippy, No. 4:18-cv-02698 (D.S.C. Aug. 8, 2019).Corp. v. Schaffer, 731 F.2d 1134, 1135-36 (4th Cir. 1984).
- Pitts v. O'Geary, 914 F. Supp. 2d 729 (E.D.N.C. 2012).publishedSee, e.g., Koehler v. Dodwell, 152 F.3d 304 , 306 (4th Cir.1998); FDIC v. Schaffer, 731 F.2d 1134, 1135-36 (4th Cir. 1984); Cherry, 249 F.R.D. at 228 .
- O'Connell v. Three Park Avenue Bldg. Co. (In Re Blutrich Herman & Miller), 227 B.R. 53 (Bankr. S.D.N.Y. 1998).published([alb-sent effective service of process, a court is without jurisdiction to render a personal judgment against a defendant)
- Marrero Albino v. Vázquez Egean, 135 P.R. Dec. 174 (1994).publishedCorp. v. Schaffer, 731 F.2d 1134, 1135-1136 (4to Cir. 1984); New York State Nat.
- S. Pride, Inc. v. Turbo Tek Enter., Inc., 117 F.R.D. 566 (M.D.N.C. 1987).published “Absent effective service of process, a court is without jurisdiction to render a personal judgment against a defendant”
- Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 110 F.R.D. 4 (S.D. W. Va. 1985).published“Absent effective service of process, a court is without jurisdiction to render a personal judgment against a defendant”
Show 4 more citing cases
- Ensminger v. Towson Univ., No. 1:22-cv-02998 (D. Md. Feb. 5, 2024).
- Ash v. Bredar, No. 1:24-cv-00809 (D. Md. July 31, 2024).
- Ash v. Rubin, No. 1:24-cv-01109 (D. Md. July 31, 2024).
- Ash v. Russell, No. 1:23-cv-02873 (D. Md. July 31, 2024).
At page 1137 Presumption of mail delivery and overcoming it10 citing casesproviding that a properly addressed piece of mail is presumed to be delivered “in the regular course of mail delivery,” but noting that the presumption is stronger when sent by certified mail
- Aspen Specialty Ins. Co. v. Dormu, No. 8:22-cv-00791 (D. Md. Sept. 15, 2023).(stating that “[t]his presumption is one not easily overcome” (citation omitted))
- State ex rel. Monster Tree Serv., Inc v. Jeffrey D. Cramer, 853 S.E.2d 595 (W. Va. 2020).published (holding that “clear and convincing” “evidence [is] required to overcome the presumption of receipt of certified mail correctly addressed and delivered to the home of the addressee[.])
- Hughes v. Charter Commc'ns, Inc., No. 3:19-cv-01703, 2020 WL 1025687 (D.S.C. Mar. 2, 2020).Because the documents at issue in that case were mailed, the court found it had to “presume, absent strong evidence to the contrary, that [the party] received the letters of notice.” Bosiger, 510 F.3d at 452 (citing FDIC v. Schaffer, 731 F…
- Casto v. Branch Banking & Trust Co., No. 3:16-cv-05848 (S.D. W. Va. Jan. 2, 2018).(providing that a properly addressed piece of mail is presumed to be delivered “in the regular course of mail delivery,” but noting that the presumption is stronger when sent by certified mail)
- Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, 2016 ND 176, 883 N.W.2d 917.published(signed receipts of certified mail raised presumption that defendants received summons and complaint in the regular course of mail delivery)
- Ebersole v. Ebersole (In Re Ebersole), 453 B.R. 636 (Bankr. W.D. Va. 2011).publishedThe Court finds that although the Debtor has not stated which provision of Rule 60(b), given the fact that the Debtor’s sole basis for relief is that he never received the Pre-Hearing Order the Debtor is proceeding under subsection 6, “any…
- Bosiger v. US Airways, Inc., 510 F.3d 442 (4th Cir. 2007).published(noting that, for notice purposes, an individual is presumed to have received mail “delivered to [a home] in the regular course of mail delivery)
- Betty Johnson v. William J. Henderson, 314 F.3d 409 (9th Cir. 2002).publishedCorp. v. Schaffer, 731 F.2d 1134, 1137 (4th Cir.1984)); cf. id. at 15 (citing Scholar v. Pac.
- Saul, Ewing, Remick & Saul v. Dominick Larosa Larosa Int'l Fuel Corp., 60 F.3d 824 (4th Cir. 1995).published(strong presumption of receipt of notice delivered to home in regular course of mail delivery)
- Est. of Wood v. Comm'r, 92 T.C. 793 (Tax Ct. 1989).publishedCir. 1986); In re Yoder Co., 758 F.2d 1114, 1118 (6th Cir. 1985); Merkel v. Continental Resources Co., 758 F.2d 811, 817 (2d Cir. 1985); Federal Deposit Insurance Corp. v. Schaffer, 731 F.2d 1134, 1137 (4th Cir. 1984); Sutherland v. ITT Co…
At page 1138 “a letter properly addressed, stamped and mailed is presumed to have been duly delivered to the addressee.”6 citing cases
- Stephen Pond v. United States, 69 F.4th 155 (4th Cir. 2023).published(A letter properly addressed, stamped and mailed is presumed to have been duly delivered to the addressee.” (quoting McCormick’s Handbook of the Law of Evidence § 343 (1972)))
- In re C. Walter Weiss, D/B/A W & M Inv., D/B/A Weiss Dev. in Re Paulette H. Weiss, D/B/A Karmel Korn, D/B/A Connectables, Inc., Debtors. Johanna F. McGahren as Pers. Rep. for the Est. of Francis J. McGahren Creditor-Appellant v. First Citizens Bank & Trust Co. James Gary Rowe, Attorney for First Citizens Bank, Creditors-Appellees, & Barbara A. Heck, Tr., Tr.-Appellee. In Re C. Walter Weiss, D/B/A Weiss Dev., D/B/A W & M Inv. in Re Paulette H. Weiss, D/B/A Karmel Korn, D/B/A Connectables, Inc., Debtors. Johanna F. McGahren as Pers. Rep. for the Est. of Francis J. McGahren Creditor-Appellant v. Barbara A. Heck, Tr. for C. Walter & Paulette Weiss, Tr.-Appellee. In Re C. Walter Weiss, D/B/A W & M Inv., D/B/A Weiss Dev. in Re Paulette H. Weiss, D/B/A Connectables, Inc., D/B/A Karmel Korn, Debtors. Johanna F. McGahren as Pers. Rep. for the Est. of Francis J. McGahren Creditor-Appellant v. David G. Gray, Creditor-Appellee, & Barbara A. Heck, Tr., Tr.-Appellee, & First Citizens Bank & Trust Co. James Gary Rowe, Attorney for First Citizens Bank, Creditors. In Re C. Walter Weiss, D/B/A W & M Inv. Paulette H. Weiss, D/B/A Connectables, Inc., D/B/A Karmel Korn, Debtors. Est. of Francis J. McGahren Creditor-Appellant v. Barbara A. Heck, Tr., Tr.-Appellee, 111 F.3d 1159 (1st Cir. 1997).published
- McGahren ex rel. Est. of McGahren v. First Citizens Bank & Trust Co., 111 F.3d 1159 (4th Cir. 1997).published
- M-r-a, 24 I. & N. Dec. 665 (BIA 2008).published
- M-d, 23 I. & N. Dec. 540 (BIA 2002).published
- Morgan v. Allianz Life Ins. Co. of North Am., 976 F. Supp. 409 (S.D. W. Va. 1997).published
At page 1136 Determining proper service when state law is used6 citing casesfederal court exercising diversity jurisdiction applies federal law to ascertain the proper method of service
- Nolet, No. 8:20-cv-00070 (D. Md. Oct. 15, 2025). Corp. v. Schaffer, 731 F.2d 1134, 1136 (4th Cir. 1984) (citation omitted).
- Hawes v. Cart Prods., Inc., 386 F. Supp. 2d 681 (D.S.C. 2005).publishedLegal standards for service of process “If service of process is made pursuant to state law, the federal court must apply both federal and state law — federal law to determine the constitutional validity of service and state law to see if…
- Vinten v. Jeantot Marine Alliances, S.A., 191 F. Supp. 2d 642 (D.S.C. 2002).publishedCorp. v. Schaffer, 731 F.2d 1134, 1136 (4th Cir.1984); Armco, Inc. v. Penrod-Stauffer Bldg.
- New York State Nat'l Org. For Women v. Randall A. Terry, 961 F.2d 390 (2d Cir. 1992).publishedSee Dobkin, 21 N.Y.2d at 497-99 , 236 N.E.2d at 455-56 , 289 N.Y.S.2d at 167-68 ; Dime Savings Bank, 169 A.D.2d at 964-65 , 564 N.Y.S.2d at 859-60 ; Hitchcock, 151 A.D.2d at 838-39 , 542 N.Y.S.2d at 814-15 ; Giordano, 79 A.D.2d at 548-49 ,…
- New York State Nat'l Org. for Women v. Terry, 961 F.2d 390 (2d Cir. 1992).publishedWhen service is made pursuant to Fed.R.Civ.P. 4(c)(2)(C)(i), federal courts have no authority to stray from the requirements set by state law, here section 308, even if service in disregard of those requirements would still be constitution…
- S. Pride, Inc. v. Turbo Tek Enter., Inc., 117 F.R.D. 566 (M.D.N.C. 1987).published DISCUSSION Turbo Tek’s motion to dismiss raises two issues: (1) Whether a plaintiff, after unsuccessfully attempting to serve the defendant by mail, can successfully effect personal, extraterritorial service on the defendant under Fed.R.Ci…
At page 1134 “absent effective service of process, a court is without jurisdiction to render a personal judgment against a defendant.”0 citing cases
Other citing cases
- Zigmont v. Comm'r, 100 T.C.M. 447 (Tax Ct. 2010).unpublished
- Broughton v. Chrysler Corp., 144 F.R.D. 23 (W.D.N.Y. 1992).published
- United States v. Diaz-Martinez, 380 F. Supp. 3d 486 (E.D. Va. 2019).published
v.
Michael A. SCHAFFER Leonard Malin, and Spartan Mining Co., Inc., a corporation, LMC Enterprises, Inc., a corporation, Hamilton Associates, Inc., a corporation, and Charles Nagy
Michael Schaffer and Leonard Malin appeal from a decision of the United States District Court for the Southern District of West Virginia denying their motion to vacate a default judgment entered against them. The sole issue is whether effective notice was provided to the individual defendants so as to perfect substituted service upon the secretary of state in accordance with the pertinent West Virginia long arm statute. The district court held that the service of process and notice were sufficient to confer jurisdiction. The court, therefore, refused to set aside the default judgment. We affirm.
I.
Spartan Mining Co., Inc., borrowed money from the First National Bank of South Charleston (Bank). It gave the Bank collateral for the loan. In addition, Schaffer and Malin guaranteed the loan both personally and in their capacities as officers of two corporations. When Spartan Mining defaulted, the Bank[1] sold the collateral and instituted a diversity action in federal court for the balance owed against Schaffer, Ma-lin, the corporate guarantors, Spartan Mining, and Spartan Mining’s president, Charles Nagy. The Bank served process on Schaffer, Malin, and the corporations pursuant to W.Va.Code § 56-3-33 (Cum. Supp.1983), a West Virginia statute authorizing service on nonresidents. Under the statute, substituted service for nonresident defendants is made on the secretary of state, and notice is accomplished through the sending of a copy of the summons and complaint by registered or certified mail. The Bank served the summons and complaint on the secretary of state and copies were mailed to the defendants. Signed receipts were returned.
Schaffer and Malin did not respond to the summons and complaint. The district court entered a default judgment against them. Many months later,[2] Schaffer and Malin moved to set aside the court’s judgment. The claim made by Schaffer and Malin in the district court and on appeal is that the secretary of state did not comply with West Virginia’s statutory notice provisions and that therefore the service of process was ineffective. Absent effective service of process, a court is without jurisdic[*1136]tion to render a personal judgment against a defendant. Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir.1982). A judgment entered against a party over whom a court lacks personal jurisdiction is void and furnishes a ground for relief under Fed.R.Civ.P. 60(b)(4). In re Penco Corp., 465 F.2d 693, 694 n. 1 (4th Cir.1972).
In the district court, Schaffer and Malin submitted affidavits in support of their motion to set aside the default judgment, stating that they did not sign the return receipts for the court papers mailed to them. Schaffer’s receipt was signed by “M. Lipton.” Schaffer’s affidavit suggested that “M. Lipton” was his elderly mother-in-law who resided at his home. He claimed that his mother-in-law never delivered the papers to him. As for Malm’s receipt, Malin denied signing it, although it contained the signature “Malin.” He averred in his affidavit that he was not “told by anyone that they accepted a summons and complaint” for him.
To ascertain the proper method of service, a federal court exercising diversity jurisdiction applies federal law. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). Fed.R.Civ.P. 4 enumerates acceptable methods of service. In addition to providing for exclusively federal methods of service, Fed.R.Civ.P. 4 permits a district court to exercise jurisdiction over a defendant who is served pursuant to the service of process rules of the state in which the court sits. In this case, an attempt was made to follow West Virginia’s method of service on nonresident defendants. To determine whether process was served properly, we must examine both federal and West Virginia law. “[I]f service of process is made pursuant to state law, the federal court must apply both federal and state law — federal law to determine the constitutional validity of service and state law to see if the procedures set out in the applicable state statute or rule have been followed.” 4 C. Wright & A. Miller, Federal Practice & Procedure § 1075 (1969).
Schaffer and Malin do not contend that the West Virginia statute is unconstitutional. They admit that the service of process in this case met the constitutional requirements and could have been effective if performed under another statute. The defendants correctly maintain, however, that to be effective service of process must comply not only with constitutional requirements, but also with the provisions of the state statute. This court will respect a state legislature’s decision to enact service of process requirements more stringent than those mandated by the Constitution.[3]
W.Va.Code § 56-3-33(c)[4] (Cum.Supp. 1983) provides for service of process on nonresident defendants. Schaffer and Ma-lin maintain that “[sjervice by this method is sufficient only if the return receipt is attached to the summons and complaint, showing (1) the defendant signed for ser[*1137]vice; or (2) the defendant’s agent signed for service; or (3) service was refused.” They contend that none of these conditions was met because service was accepted by someone other than the appellants or their agents.[5] They argue that the statute requires not only notice and service, but also “notice of service.” The district court, however, ruled:
On the face of the return of service record these provisions were complied with inasmuch as a copy of the summons and complaint was sent to each of these defendants at their respective addresses and both receipt cards were returned signed — with what appeared to be addressee’s signature in Malin’s case and what could be presumed to be a “duly authorized agent” in Schaffer’s case. West Virginia does not require actual notice for service cf process to be valid where the statutory requirements for notification have been met.
FDIC v. Spartan Mining Co., 96 F.R.D. 677, 682 (S.D.W.Va.1983).
The Bank and the secretary of state made a good faith attempt to follow West Virginia’s service procedures. The Bank served process on the secretary of state, who sent copies of the summons and complaint by certified mail to the respective homes of Schaffer and Malin. Receipts that appeared to be signed by Malin and by Schaffer’s agent were returned and properly filed. There were no other reasonable steps that the plaintiff or secretary of state were required to take to effect proper service. The court then acted on the reasonable assumption that service was effective and that it had personal jurisdiction. Central Operating Co. v. Utility Workers of America, 491 F.2d 245 (4th Cir.1974), relied on by the defendants, is inapposite for in that case the plaintiff failed to serve the state auditor general as required by the pertinent West Virginia statute to achieve substituted service.
The secretary of state facially complied with the notice requirements of the West Virginia statute by sending copies of the summons and complaint by certified mail to each defendant, properly addressed to his place of residence. Schaffer and Malin must be presumed to have received the notice[6] delivered to their homes in the regular course of mail delivery. Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 418, 76 L.Ed. 861 (1932); Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 386, 28 L.Ed. 395 (1884). This presumption “is one not easily overcome.” Borden Co. v. United States, 134 F.Supp. 387, 391 (D.N.J. 1955). The receipts confirm the delivery.
Although it may be rebutted, the evidence required to overcome the presumption of receipt of certified mail correctly addressed and delivered to the home of the addressee must be clear and convincing. Evidently, the defendants did not persuade the district court that their affidavits sufficiently rebutted the presumption. In his affidavit in support of the motion to set aside the default judgment, Schaffer acknowledged that the summons and complaint were delivered to his home and receipted for by M. Lipton, his mother-in-law, who resided with him, but he asserted that she did not deliver the registered letter to him or tell him that he received it. Under the West Virginia statute, Lipton, as a member of the household and who receipted for mail addressed to the defendant, constituted his “duly authorized agent.”[7] [*1138] Schaffer’s denial of receipt, not supported by any affidavit from Lipton or by any other member of the household indicating what became of the certified mail, was insufficient to overcome the presumption of notice of delivery to the addressee. Furthermore, at the hearing on the motion to vacate, defendant’s counsel represented that Schaffer knew of the lawsuit for Schaffer communicated with his New York counsel with respect to the service shortly after it was made on two of the codefend-ants, Spartan Mining Co. and LMC Enterprises Inc. FDIC v. Spartan Mining Co., 96 F.R.D. 677, 679 (S.D.W.Va.1983).
In his affidavit in support of the motion to set aside the judgment, defendant Malin averred that the signature on the receipt, “Malin,” was not his, .that he did not recognize the handwriting, and that he was not served with a copy of the summons and complaint. It is undisputed that copies of the summons and complaint were delivered by certified mail to his home. He too is presumed to have received them. Malin’s mincing assertion in the affidavit does not deny notice; he merely denies that it is his signature that is affixed to the return receipt. Furthermore, as the district court concluded, Malin is in no position to deny notice of the proceedings, for he personally signed the receipt on June 8, 1981 for the copy of the summons and complaint sent to his codefendant, LMC Enterprises, Inc.
We see no error in the refusal of the district court to set aside the default judgment.
Affirmed.
By order entered January 10, 1983, Federal Deposit Insurance Corporation, appellee herein, was substituted for the Bank as plaintiff.
The district court entered a default judgment only after an interval of about six months following mail delivery of the summons and corn-plaint to each of the defendants’ homes and another ten months elapsed between the entry of the default judgment and the filing of the defendants’ motion to set aside the default judgment.
The court in Harman v. Pauley, 522 F.Supp. 1130 (S.D.W.Va.1981), found that “[t]he passage of W.Va.Code § 56-3-33 by the Legislature was intended to permit the courts of this state to exercise personal jurisdiction over a non-resident defendant to the extent permitted by the due process clause.” Id. at 1135. This decision, however, involved amenability to service, not method of service.
The pertinent provisions of the statute state: Service shall be made by leaving the original and two copies of both the summons and the complaint with the certificate aforesaid of the clerk thereon ... with the secretary of state ... and such service shall be sufficient upon such nonresident: Provided, that notice of such service and a copy of the summons and complaint shall forthwith be sent by registered or certified mail, return receipt requested, by the secretary of state to the defendant and the defendant's return receipt signed by himself or his duly authorized agent or the registered or certified mail so sent by the secretary of state which is refused by the addressee and which registered or certified mail is returned to the secretary of state, or to his office, showing thereon the stamp of the post-office department that delivery has been refused, shall be appended to the original summons and complaint, and filed therewith in the clerk's office of the court from which process issued. If any defendant served with summons and complaint fails to appear and defend within thirty days of service, judgment by default may be rendered against him at any time thereafter.
Subsection (e)(1) of the statute provides:
(1) "Duly authorized agent” means and includes among others a person who, at the direction of or with the knowledge or acquiescence of a nonresident, engages in such act or acts and shall include among others a member of the family of such nonresident or person who, at the residence, place of business or post office of such nonresident, usually receives and receipts for mail addressed to such nonresident.
“A letter properly addressed, stamped and mailed is presumed to have been duly delivered to the addressee." C. McCormick, McCormick’s Handbook of the Law of Evidence § 343 (1972) (footnote omitted). The presumption is especially strong when the delivery is by certified mail.
We recognize that the West Virginia statute refers to a member of the family who "usually receives and receipts for mail addressed to such nonresident.” Lipton’s receipt of the mail and[*1138] signing for it is evidence, in the absence of anything to the contrary, that she met this description.