UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHOICE HOTELS INTERNATIONAL,

INCORPORATED, a Delaware

Corporation,

Plaintiff-Appellee,

No. 96-2717

v.

GALEN T. BONHAM, SR.; JOANNA R.

BONHAM,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Catherine C. Blake, District Judge.

(CA-95-2275-CCB)

Submitted: September 9, 1997

Decided: September 30, 1997

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

John H. Harman, John F. Davis, COGGINS, HARMAN & HEWITT,

Silver Spring, Maryland, for Appellants. James G. Healy, Silver

Spring, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants Galen T. and Joanna R. Bonham ("Bonhams") appeal

from the district court's order denying their motion filed pursuant to

Fed. R. Civ. P. 60(b)(4), for relief from a default judgment entered

against them in a breach of contract action filed in the district court

for the District of Maryland by Choice Hotels International, Inc.

("Choice"). The Bonhams contend that process was not properly

served upon them, thereby depriving the court of personal jurisdiction

and rendering the default judgment void. We vacate the district

court's order denying relief on the Rule 60(b)(4) motion and remand

with instructions to vacate the default judgment.

Generally, we review the denial of a motion for relief from judgment pursuant to Rule 60(b) for an abuse of discretion. See Heyman

v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997). But where, as

here, the district court denied a Rule 60(b)(4) motion to set aside a

judgment as void, our review is de novo. See New York Life Ins. Co.

v. Brown, 84 F.3d 137, 142 (5th Cir. 1996).

To succeed on a Rule 60(b) motion, a movant first"`must show

that his motion is timely, that he has a meritorious defense to the

action, and that the opposing party would not be unfairly prejudiced

by having the judgment set aside.'" National Credit Union Admin. Bd.

v. Gray, 1 F.3d 262, 264 (4th Cir. 1993) (quoting Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1987)). After meeting the

threshold considerations,1 the movant must then satisfy one of the six

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1 A showing of "exceptional circumstances" sometimes is noted as a

fourth threshold. See Gray, 1 F.3d at 264 (citing Werner v. Carbo, 731

F.2d 204, 207 (4th Cir. 1984)).

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grounds for relief in Rule 60(b). See National Credit Union Admin.

Bd., 1 F.3d at 266. The Bonhams satisfied the threshold criteria.2

We next must determine whether the Bonhams met one of the

grounds set forth in Rule 60 by establishing that the default judgment

is void. Id. A judgment is void only if the court that rendered judgment lacked jurisdiction over the subject matter or the parties or in

circumstances in which the court's action amounts to a violation of

due process. See Schwartz v. United States, 976 F.2d 213, 217 (4th

Cir. 1992). "Valid service of process is a prerequisite to a district

court's assertion of personal jurisdiction." Swaim v. Moltan Co., 73

F.3d 711, 719 (7th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.

3818, 64 U.S.L.W. 3821 (U.S. June 10, 1996) (No. 95-1622); see

Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th

Cir. 1993).

The parties agree that Choice attempted to serve the Bonhams

under the law of the state in which service was effected--Missouri.3

See Fed. R. Civ. P. 4(e)(1). The Bonhams claim that there was no

valid service of process because Choice failed to follow the procedures established by state law. Specifically, they assert that each

return of service was defective on its face because it did not set forth

the time, place, and manner of service as required by Mo. Sup. Ct. R.

54.20(a)(1), nor did the returns show that the deputy sheriff offered

and the Bonhams refused to accept service as required by Mo. Sup.

Ct. R. 54.20(f).

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2 The Bonhams' Rule 60(b)(4) motion was timely filed. See New York

Life Ins. Co., 84 F.3d at 142-43 (noting that void judgment may be challenged at any time); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d

1126, 1130 & n.8 (11th Cir. 1994) (collecting cases adopting rule). Next,

the Bonhams were not required to establish the existence of a meritorious

defense. See Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278,

280 (5th Cir. 1987); Covington Indus., Inc. v. Resintex A.G., 629 F.2d

730, 733 n.3 (2d Cir. 1980). Finally, Choice will suffer "no disadvantage

. . . beyond that suffered by any party which loses a quick victory."

Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d

808, 812 (4th Cir. 1988).

3 According to the district court's docket sheet, the Bonhams did not

voluntarily make an appearance or waive service under Fed. R. Civ. P.

4(d).

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The Bonhams correctly note that the returns of service do not set

forth the time, place, and manner of service. The returns only state

that on December 15, 1995, the deputy sheriff served the Bonhams by

delivering the summons to each of them at "RESIDENCE--UNDER

RULE 54.20F." The deputy did not serve the Bonhams personally nor

did he specify the address of the residence, and the record does not

reflect that the residence at which the deputy left the summons and

complaint was, in fact, the Bonhams' residence.

Choice also failed to comply with Rule 54.20(f). The deputy never

personally served anyone--not Defendants, their agents, or a family

member over the age of fifteen. See Mo. Sup. Ct. R. 54.13(b)(l). After

several unsuccessful attempts to serve the Bonhams, the deputy

returned to the residence. The deputy heard a man's voice he thought

was Mr. Bonham's and saw a woman he thought lived there. When

no one answered the door, the deputy announced to the dwelling that

Defendants had been served, and he left. This is insufficient. See

Walker v. Gruner, 875 S.W.2d 587, 589 (Mo. Ct. App. 1994) (noting

that "Rule 54.20(f) contemplates an attempt by the server to personally serve a defendant and defendant's refusal to physically accept the

copies of the summons and [complaint]"). Because the Bonhams were

not personally served and because they did not physically refuse service, there was no valid service of process. See Mo. Sup. Ct. R.

54.20(f). Moreover, service of process was not properly effected

under Fed. R. Civ. P. 4(e)(2). The district court therefore did not have

jurisdiction over the parties. See Swaim, 73 F.3d at 719. Accordingly,

we find that the default judgment is void. See Schwartz, 976 F.2d at

216.

We therefore vacate the district court's order denying relief under

Rule 60(b)(4) and remand the case to the district court with instructions to vacate the default judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

VACATED AND REMANDED

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