United States Court of Appeals

For the First Circuit

No. 04-1027

M & K WELDING, INC.,

Plaintiff, Appellant,

v.

LEASING PARTNERS, LLC,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior District Judge,

and Lipez, Circuit Judge.

Lisa A. Wellman-Ally with whom Law Offices of Wm. Howard Dunn,

P.C. was on brief for appellant.

Frank P. Spinella, Jr. with whom Hall, Morse, Anderson, Miller

& Spinella, P.C. was on brief for appellee.

October 22, 2004
1 This appeal concerns jurisdiction over Leasing Partners, and

it consequently is the only appellee.

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COFFIN, Senior Circuit Judge. This appeal requires us to

monitor what Judge John Brown, writing for us, termed "the heart of

a federal court's ability to practice its trade, namely personal

jurisdiction." Hugel v. McNell, 886 F.2d 1, 2 (1st Cir. 1989). It

is also the heart of a state court's legitimization, and in this

case it is New Hampshire law that governs. In this case, the

district court vacated a default judgment for appellant for lack of

personal jurisdiction because of defective service of process.

Having carefully examined the law and the facts, we conclude that

the jurisdictional requirements were not met and consequently

affirm judgment for defendant-appellee.

The litigation arises out of plaintiff-appellant M & K

Welding, Inc.'s (M & K) unhappiness with a welding robot and

related equipment it acquired under a lease and purchase agreement

with appellee Leasing Partners, LLC (a middle man facilitator of

leasing opportunities) and Robot Man, Inc. (the seller). M & K

brought suit in New Hampshire state court against these and other

defendants for breach of warranty and other state claims.1 Service

of process was made under the authority of the New Hampshire longarm statute, N.H. Rev. Stat. Ann. § 510:4. There being diversity

jurisdiction, defendants other than Leasing Partners removed the
2 Although Leasing Partners did not explicitly invoke Fed. R.

Civ. P. 60(b)(4), we treat that provision, which allows relief from

a final judgment that is "void," as applicable. Leasing Partners

did alternatively invoke subsection (1) of Rule 60(b), which

provides relief based on "mistake, inadvertence, surprise, or

excusable neglect."

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case to the federal district court for the District of New

Hampshire.

This appeal was triggered by Leasing Partners' failure to

respond to the complaint. A default was declared on November 20,

2002, and on May 9, 2003 judgment was entered for the total of the

monthly payments and transportation expenditures made by M & K,

$15,265.31. Leasing Partners claimed to have no knowledge of the

default judgment until it received a letter sent on July 2, 2003 by

its assignee, M & T, notifying it of the judgment and its indemnity

liability to M & T. Leasing Partners moved to vacate the default

judgment as void because of defects in the service of process.2

I. Background

The applicable jurisdictional provision, N.H. Rev. Stat. Ann.

§ 510:4 states, in relevant part:

II. SERVICE OF PROCESS ON SECRETARY OF STATE. Service

of process upon any person who is subject to the

jurisdiction of this state, as provided in this section,

may be made by leaving a copy thereof, with a fee of $10,

in the hands or office of the secretary of state. Such

service shall be of the same legal force and effect as if

served on the defendant at his abode or place of business

in the state or country where he resides and according to

the law of that state or country, provided that notice

thereof and a copy of the process is forthwith sent by

registered mail, postage prepaid, by the plaintiff or his

attorney to the defendant at his last known abode or
3 Appellant presents this information in its brief, noting

that this letter was not part of the record below because M & K had

not known service on the Secretary of State would be an issue. We

see no reason not to take note of it, which gives a precise

explanation of what happened.

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place of business in the state or country in which the

defendant resides. The defendant's return receipt and an

affidavit of the plaintiff or his attorney of compliance

with the section shall be appended to the process and

entered therewith. In the event that the notice and a

copy of the process are not delivered to or accepted by

the defendant, the court may order such additional

notice, if any, as justice may require.

To comply with the service of process requirements, M & K took

two steps on September 5, 2002. It sent copies of the summons and

complaint to the Merrimack County Sheriff for service on the

Secretary of State. And it sent another copy of the documents by

registered mail to the address used by Leasing Partners in the

lease-purchase agreement: 10000 Sagemore Drive, Suite 10103,

Marlton, New Jersey 08053. In the letter to Leasing Partners, M &

K's representative wrote: "I have this day forwarded copies of the

Writ of Summons and Complaint to the Merrimack County Sheriff for

service upon the New Hampshire Secretary of State, as required by

statute."3

The deputy sheriff's return indicated that service on the

Secretary was made on September 12, 2002. At Leasing Partners'

office, the return receipt for the registered mail had been signed

on September 5 by a Mary Devlin, without a check mark in either a

box for "agent" or one for "addressee." It has subsequently been
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revealed that Mary Devlin was an employee of another company,

Horizon-Keystone Financial, the managing partner of Leasing

Partners; that she was not authorized to accept registered mail or

process on behalf of M & K; that several other enterprises shared

occupancy in the suite; that Leasing Partners at the time was in

the process of winding up operations, with its effects packed in

boxes; and that, although numerous letters had been sent to it at

this address by appellant and others, no responses were

forthcoming.

Finally, on September 9, 2002, the attorney for M & K

submitted her affidavit of compliance, averring that she had

"followed every requirement set forth in R.S.A. 510:4."

The district court noted that, although service was made on

the Secretary of State on September 12, 2002, no subsequent notice

of such service was given to Leasing Partners. It also commented

on the employment status of Mary Devlin, her lack of authority to

act for Leasing Partners, and the absence of any request by M & K

for an additional means of notice. It therefore found that service

had been defective in two ways: M & K did not provide proper notice

of service on the Secretary of State and it likewise failed to

properly serve the summons and complaint on the defendant itself.

The court did not reach a third issue raised in Leasing Partners'

motion to vacate – the possibility of relief under Fed. R. Civ. P.

60(b)(1).
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On appeal, M & K asserts that notice was properly given in

both respects. It points out that Leasing Partners was served at

its last known address, as required by the statute, and that notice

of the filing with the Secretary was adequate even though it

occurred before the actual delivery of the documents to the

Secretary. 

II. Analysis

Before approaching the question of jurisdiction over the

person, we refer briefly to the question of our own appellate

jurisdiction, which we have put to the parties. What had concerned

us was whether, since the action appealed from was the setting

aside of a judgment, this was really a "final" decision as required

by 28 U.S.C. § 1291. Precedents applicable to the denial of a Rule

60(b) motion might not be pertinent to the granting of such a

motion. See Stubblefield v. Windsor Capital Group, 74 F.3d 990,

994-95 (10th Cir. 1996). On further reflection, we are satisfied

that the actions taken by the district court and the parties do

constitute sufficient finality. The court, noting that M & K had

(along with others) filed a stipulation of dismissal with

prejudice, ruled, "Therefore, the case is closed based on the

parties' stipulations." At oral argument, counsel for M & K

confirmed this fact. We therefore have no hesitation in treating

this as a final judgment. See United States v. Hoyts Cinemas

Corp., 380 F.3d 558, 564 (1st Cir. 2004).
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Coming to our main question, the governing principles are that

a default judgment issued without jurisdiction over a defendant is

void, that it remains vulnerable to being vacated at any time, and

that such jurisdiction depends on the proper service of process or

the waiver of any defect. Precision Etchings & Findings v. LGP Gem

Ltd., 953 F.2d 21, 23 (1st Cir. 1992). We and the parties agree

that New Hampshire law sets the standard for determining the

adequacy of the service of process and, therefore, jurisdiction.

And we are also mindful that we are not determining whether what

was done meets the requirements of the federal Constitution; we are

measuring what was done against the requirements of a specific

state statute.

In view of our ultimate conclusion that the essential notice

of service on the Secretary of State was defective, there is no

necessity to address the sufficiency of notice to defendant sent by

registered mail. We do not intimate that the district court was in

error in its ruling on this issue. But we are reluctant to fault

appellant for using the address chosen by Leasing Partners in

executing the lease-purchase agreement. We do not feel confident

that, on the facts of this case, New Hampshire courts would hold

such service unavailing.

Our standard of review is clear. Although orders on some Rule

60(b) motions, such as those asserting mistake or excusable neglect

under subsection(b)(1), ordinarily are reviewable only for abuse of
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discretion, a decision whether or not a judgment is void under

60(b)(4) allows no room for discretion. The review is de novo.

Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir. 1982); 11 Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2862, at 322-23 (2d ed. 1995).

Our interpretive guideline is equally clear. The most

prominent recent authority, South Down Recreation Ass'n v. Moran,

141 N.H. 484, 686 A.2d 314 (1996), is particularly pertinent in

that it underscores the importance of service on the Secretary of

State, where the long-arm statute requires it. In that case, outof-state defendants were served in their home community by a

sheriff of that state. They did not appear and were defaulted. In

the course of the New Hampshire proceeding, the trial court sua

sponte brought up the issue of personal jurisdiction and ruled that

"'nonresident defendants must be served by service on the Secretary

of State. . . . If that is unsuccessful, application may be made

to the court for alternative service.'" 141 N.H. at 485, 686 A.2d

at 315. 

The New Hampshire Supreme Court, after stating that it

required "strict compliance with statutory requirements for service

of process," 141 N.H. at 487, 686 A.2d at 316, observed that

section 510:4, II specified that service by registered mail and on

the Secretary of State had the same effect as if a defendant had

been served at his abode, but noted that the statute did not
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authorize out-of-state personal service. See 141 N.H. at 488-89,

686 A.2d at 317. The only alternative method that the court

recognized was a request to the superior court to order additional

notice. See 141 N.H. at 489, 686 A.2d at 317. It therefore

affirmed the dismissal of the action even though defendant had been

served a copy of the writ by a sheriff in another state.

More recently, the court, citing only South Down, reversed a

trial court ruling that had vacated a deed conveying timber land to

an out-of-state enterprise and had awarded a New Hampshire

plaintiff over $2 million in damages. See Lunt v. Gaylor, 150 N.H.

96, 834 A.2d 367 (2003). It did so, notwithstanding that service

on the Secretary of State had been made and that registered mail,

according to counsel, had been sent to defendants, because there

was no record of the registered mail service and return receipts of

such service on file with the court. 150 N.H. at 96, 834 A.2d at

368.

Perhaps a case shedding light through an analogous problem is

helpful. In Adams v. Sullivan, 110 N.H. 101, 261 A.2d 273 (1970),

the brother-in-law of a defendant accommodated a deputy sheriff by

leaving a copy of the summons and complaint at defendant's home.

Even though the statute did not specify the manner in which

"leaving at his abode" should be interpreted, the court deemed

that, considered with other provisions, the writ is in reality

addressed to the sheriff. See 101 N.H. at 103-04, 261 A.2d at 275.
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The court affirmed dismissal of the suit on the ground that, though

actual notice was received, service was not executed by a deputy

sheriff. To us, this rather modest distinction on the question of

who can execute service renders it likely that a New Hampshire

court would take literally the requirement in section 510:4, II

that notice be given of the actual service on the Secretary of

State rather than the commencement of, or some preliminary stage

of, the process of serving. 

Appellant, accepting the indispensability of service on the

Secretary of State and the standard of strict compliance, stoutly

maintains that all statutory requirements were fully met. It

contends that nothing in the statutory language requires service on

the Secretary before notice is given a defendant. It argues that,

had the legislature intended service to precede notice, it would

have required the notice to contain "proof" of service.

We are unable to accept this line of argument, both because

the wording of the statute does not permit it, and because of the

mischief that an open-ended interpretation would produce. To

consider the statutory language first, the statute proclaims the

effect of "service," defined as leaving a copy plus fee of $10 in

the office of the Secretary, as having the same effect as if

"served on the defendant at his abode . . . ." This is immediately

followed by the proviso, "provided that notice thereof . . . is

forthwith sent . . . to the defendant . . . ." This can mean only
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notice of the referent of "thereof," which is "service" – not

intention to make service, expectation that service will take

place, or commencement of action hopefully leading to service.

Here, notice was given of a preliminary step to service on the

Secretary, i.e., sending the documents to a county sheriff for

eventual service. No mention was made of payment of the $10 fee,

a necessary prerequisite to successful service.

Moreover, "forthwith," without any definite starting point,

loses all significance. In the case at bar, the time referenced

could have varied widely. As it happened, appellant maintains that

it meant that a copy of the process was properly sent immediately

after its letter requesting service was sent to a sheriff on

September 5. But if actual service had been the triggering event,

"forthwith" would mean that a copy of the process would have been

sent at least a week later.

In considering the impact of an interpretation of section

510:4, II that would stretch the meaning of "notice thereof" to

include notice of actions and stages short of completed service, we

observe that we are entering a mine field, that of court procedures

where certainty, uniformity, and clarity are prime prerequisites

for fair, stable, and orderly management of cases. There are

specific land mines that could be activated by the permissive

interpretation urged by appellant.
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Appellant has included in its Appendix the summons of an

amended complaint in this case, correcting the name of one of the

defendants. This contains a standard warning that failure to

answer the complaint being served within twenty days will result in

judgment of default "for the relief demanded in the complaint."

Appellant's interpretation would give rise to many questions. From

what time do the twenty or so days run? If only from the time of

service on the Secretary, how will a defendant know? If a

defendant fears that the starting date is that of his receipt of

the summons, and it happens that the Secretary is never served, is

this a tolerable procedure? Any actions taken by defendant to

respond would have proven needless.

If papers are lost, if fee advances are not promptly made, if,

for any reason, there are extreme delays or difficulties in

completing service on the Secretary, the available course for a

plaintiff is to request the superior court for "such additional

notice as the case requires." South Down, 141 N.H. at 489, 686

A.2d at 317. The question arises, if "service" includes "being

served," at what point should a delayed service on the Secretary

require resort to an effort to obtain additional notice? How would

a valid service be distinguished from a defective one? Would there

be mini-trials on such issues? 

Finally, for cases such as this, which are removed to federal

court, will there be confusion and disputes about the running of
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time within which notices of removal can be filed? These and

possibly other questions underscore the time honored insistence on

precision in adhering to prescribed statutory methods of initiating

legal actions.

We therefore conclude that the failure to have effected

service on the Secretary of State prior to sending notice to

defendant-appellee constitutes a defect fatal to both service and

personal jurisdiction.

Affirmed.