#### Jerry A. BREAUX, Sr. v. Nolan VICKNAIR and Eymard Machine Shop, Inc.

No. 86-CA-432.

Court of Appeal of Louisiana, Fifth Circuit.

March 20, 1987.

*125Robert J. Caluda, New Orleans, for plaintiff-appellant Jerry A. Breaux, Sr.

Randolph J. Waits, Charles N. Branton, New Orleans, for defendant-appellee St. Paul Fire and Marine Ins. Co.

Harry D. Hoskins, III, New Orleans, for defendant-appellee Nolan Vicknair.

Before KLIEBERT, BOWES and GAUDIN, JJ.

GAUDIN, Judge.

Is Louisiana’s one-year tort prescription interrupted by the filing of a suit in federal court and the attempt to have service made pursuant to Federal Rule of Civil Procedure 4(c)(2)(C)(ii)?

Jerry A. Breaux was injured on January 11, 1984 and he filed suit in the United States District Court, Eastern District of Louisiana, on December 3, 1984. According to the above cited federal procedural rule, a copy of the pleading, along with a form entitled “Notice and Acknowledgement of Receipt of Summons and Complaint,” was allegedly mailed to defendants Eymard and Sons Shipyard, Inc., Nolan Vicknair and Eymard Machine Shop, Inc. on January 3, 1985. These defendants did not acknowledge receipt of the form and/or complaint and they were not properly served at any time later although they subsequently filed answers, Vicknair on February 11,1985, Eymard and Sons Shipyard on March 13, 1985 and Eymard Machine Shop on June 27, 1985.

On August 12, 1985, Breaux filed the instant suit1 in the 24th Judicial District Court, Parish of Jefferson, alleging the same injuries. Subsequently, Breaux filed a supplemental and amended petition naming St. Paul Fire and Marine Insurance Company as an additional defendant. This was filed November 14, 1985.

St. Paul excepted, citing prescription, and this motion was sustained. Breaux, on appeal to this Court, argues that the alleged mailing of the federal complaint had interrupted prescription. The trial judge did not agree, nor do we. For the following reasons, we affirm the judgment dismissing St. Paul as a party defendant.

Federal Rule of Civil Procedure 4(c)(2)(C)(ii) states in pertinent part:

> “(C) A summons and complaint may be served upon a defendant ...

> “(ii) By mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to form 18-A and a return envelope, postage prepaid; addressed to the sender ...”

This is, of course, the convenient and cost-free method of instituting the proceed*126ings. The effectiveness of this procedure depends on an appropriate response by the designated defendant or defendants. The form advises a defendant that the penalty for failure to sign, date and return the form is that he, she or it may be required to pay the expenses of service in some other manner.

> The federal rule goes on to state that: “If no acknowledgement of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subpara-graph (A) or (B) of this paragraph in the manner prescribed by subdivision (d)(1) or (d)(3).”

Otherwise stated, if a defendant fails to file an acknowledgement, the complainant *must*then effect a regular, traditional service of process.

In Louisiana, LSA-C.C. art. 3462 governs the interruption of prescription. It reads as follows:

> “Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.”

Breaux’s federal court suit was dismissed on September 11, 1985 for lack of subject matter jurisdiction. Thus, with regard to the later state court action, prescription would have been interrupted only *by service on*a federal suit defendant within the one-year tort prescriptive period. The trial judge in state court ruled that the mere mailing of the federal complaints did not constitute valid service and it is this holding that we herein affirm.

If the subject federal rule had been complied with, i.e., had the defendants acknowledged receipt of the complaints before the one-year prescription set in, service would have been legal and valid and would have, according to Art. 3462, interrupted prescription. But the federal complaints were not allegedly mailed until January 3, 1985 and the record does not indicate precisely when the complaints were actually received.

The named defendants did not object to the sufficiency of service in the federal lawsuit. Arguably they were notified, as they did eventually file answers. Failure to object to the sufficiency of service in the federal action, however, would not preclude St. Paul’s exception in the state court.

This particular issue apparently has not until now been litigated at the appellate level in this state. The United States Court of Appeals for the Fifth Circuit, in *Delta Steamship Lines, Inc. v. Albano,*768 F.2d 728 (5th Cir.1985), held that a certified mailing (rather than a first-class mailing) neither conformed to Texas state law nor to the federal rules and consequently was invalid. In *Delta,*the court said:

> “The provisions of Rule 4(c)(2)(C)(ii), the apparent product of careful drafting, are detailed and specific. The legislative history of the 1983 amendments to Rule 4, which include the language at issue, suggests that this precise method of service by mail was designed not only to provide a means for establishing proof of service as required by Rule 4(g), but also to establish personal jurisdiction *ex pro-prio vigore*and in a manner consonant with the strictures of due process. We find in the legislative history the observation that when the exact mailing requirements of subsection (C)(ii) are followed, both *in personam*jurisdiction and service of process will be established. *See*[1982] 4 U.S.Code Cong. & Ad.News 4440; *see also*28 U.S.C.A. R. 4, Commentary C4-19, at 36 (Supp.1985) (noting that if defendant makes the return contemplated by (C)(ii), “the acknowledgment acts as the plaintiff’s proof of service under Rule 4(g) and the case is underway”); *id.*at 35 (noting that defendant’s return of the receipt is an acknowledgment sufficient to establish jurisdiction, obviating the need for an official process server).

> *127“We conclude that Rule 4(c)(2)(C)(ii) is an integrated procedure for establishing and proving *in personam*jurisdiction as well as service of process and that the defendant’s return and acknowledgment are an essential part of that procedure. It necessarily follows that the requirements of Rule 4(c)(2)(C)(ii) must be fully satisfied if the benefits of the Rule are claimed. Consistent therewith, a more general state mail-service procedure may not be considered the effective equivalent of this subsection. Only careful compliance with 4(c)(2)(C)(ii) will suffice.

> “The service of process attempted by Delta accords with neither state nor federal service requirements. The service on Albano was insufficient.”

In the instant case before us, one of the primary requirements (perhaps *the*primary requirement) of the federal rule was not satisfied. There was no return and ac-knowledgement within 20 days. If personal jurisdiction was ever procedurally established, it was not until the defendants filed answers, on February 11, March 13 and June 27,1985, all beyond the one-year prescriptive period.

Breaux, in attempting to show that prescription was interrupted by the mailings, cites a series of Louisiana cases2 holding that a citation or service, no matter how informal or insufficient, nevertheless *notifies*a defendant of the demands being made and generally sufficed to interrupt prescription.

Here, however, although Breaux argues to the contrary, the record does not indicate that the defendants actually received the complaints before prescription set in. Even if the mailings had been received before January 11, 1986, and there is no proof that they *were,*this would not have constituted valid service under state law and would not have complied with Federal Rule 4(c)(2)(C)(ii) in the absence of a return and acknowledgement within the specified 20-day period.

The district court judgment sustaining the exception of prescription is affirmed, with Breaux to bear costs of this appeal.

AFFIRMED.

BOWES, J., dissents and assigns reasons.

1

. *Jerry A. Breaux v. Nolan Vicknair and Eymard Machine Shop, Inc.,*No. 315-178, 24th Judicial District Court, Division "K”.

2

. Including *Conner v. Continental Southern Lines, Inc.,*294 So.2d 485 (La.1974), and *Vernon*v. *Illinois Central Railroad Co.,*154 La. 370, 97 So. 493 (1922).

BOWES, Judge,

dissenting.

Although the majority opinion by my learned and respected brothers appears to be logical and persuasive, I am of the opinion that their reasoning is illusory. Therefore, I must respectfully dissent.

The majority view seems to be based on the belief that the acknowledgment of service under Fed.R.Civ.P. 4(c)(2)(C)(ii) is the primary requirement under the rule and, since it was not satisfied, the judgment sustaining the exception of prescription must be affirmed.

Such a finding seems to me to ignore the jurisprudential rule that citation itself is the important legal fact upon which the validity of the judgment rests, while the return is simply evidence in respect to that fact. *Adler v. Board of Levy Com’rs. of Orleans Levy Dist.,*168 La. 877, 123 So. 605 (1929).

It is a well-established principle of due process that notice is sufficient when it is reasonably calculated to apprise the interested party of the pendency of an action against him and to give him an opportunity to present his position and objections. The cases are legion which support this principle, such as the landmark case of *Conner v. Continental Southern Lines, Inc.,*294 So.2d 485 (La.1974), and the cases cited therein. The Louisiana Supreme Court, in *Conner, supra,*held as follows:

> Service of process interrupts the running of prescription even though the process is defective and subject to exception, if it is sufficient to inform the person served of the legal demands made upon him from the described occurrence.

> [ ...] However, the proper person, as designated by law, must be served be*128fore service of process will interrupt the running of prescription, [cites omitted]

In the instant case, there is no question regarding whether the defendants were served sufficiently to inform them of the legal demands made upon them. No one has raised the issue that the proper person was not served in each instance. No objection or exception to the service of any kind was filed. Instead, appellees actively participated in the litigation, filed answers to the appellant’s original complaint, conducted discovery, and presented lists of witnesses prior to the dismissal of the case in the federal court for lack of subject matter jurisdiction. Now, appellees contend that because the *acknowledgment*was not signed and returned in compliance with Fed.R.Civ.P. 4(c)(2)(C)(ii) that service of process is insufficient.

However, the appellees did not file an exception to the sufficiency of process pri- or to their appearance in the federal court. Instead, appellees waited until the case was transferred to the Twenty-Fourth Judicial District Court to contend that the requirements of Fed.R.Civ.P. 4(c)(2)(C)(ii) were not fully satisfied and that appellant cannot now claim the benefits of this rule because he did not effect personal service upon the appellees. Appellees also state, and the majority apparently agrees, that appellant has no one to blame but himself because he mailed the complaint so late in the prescriptive period and his failure to proceed properly under the federal rules to obtain valid service of process upon the defendant.

I disagree. Appellees do not assert that they did not *receive notice*within the one-year prescriptive period. Additionally, once the appellees made a general appearance by filing an answer and proceeding on the merits of the suit, they then tacitly acknowledged timely service and their being informed of the legal demands being made upon them. The plaintiff *relied*upon the actions of the defendant, as, indeed, he had a right to do. Consequently, there was no reason for the appellant to proceed with personal service — it would have been a vain and useless act — as he could be satisfied by the actions taken by defendants that service of process had been effectively made upon them and defendants had been adequately informed. I also note that appellee does not allude to nor address this obvious facet of the case in his brief.

Appellees and the majority cite *Delta Steamship Line, Inc. v. Albano,*768 F.2d 728 (5th Cir.1985) for the proposition that the precise method of service by mail must be followed; specifically, that the defendant’s return and acknowledgment are an essential part of the procedure and must be fully satisfied if the benefits of the rule are claimed. See also *Armco Inc. v. Penrod-Stauffer Bldg. Systems,*738 F.2d 1087 (4th Cir.1984); *Stanahan Gear Co., Inc. v. N L Industries,*102 F.R.D. 250 (1984). But these cases are obviously distinguishable from our situation as the defendants in each case did *not*make an *appearance*before the court prior to their initial move to dismiss the complaint for insufficiency of process and service of process, or, as in two instances, where the defendant moved to vacate default judgments on the same grounds. There was no acquiescence by defendants in the cited cases to the manner of service, as we have here.

My learned brothers state that although the named defendants did not object to the sufficiency of service in the federal law suit, since, arguably, they were notified, that the failure to object to the sufficiency of service in the federal action would not preclude the filing of an exception in the state court by St. Paul Insurance Co., insurer of several defendants. This argument overlooks the obvious fact that St. Paul voluntarily appeared in the Federal suit on behalf of their insureds, actively participated therein, and was the mover on the belated motion to dismiss. This holding fails to take into consideration the well-established rule in Louisiana and federal jurisprudence that, when a defendant makes a general appearance, objections to the sufficiency of service of process and sufficiency of citation are waived unless pleaded at that time. LSA CCP art. 925, *LeBlanc v. Landry,*371 So.2d 1276 (La. App. 3rd Cir.1979); *Bunge Corporation v. Emmons,*320 So.2d 230 (La.App. 3 Cir. *1291975); Fed.R.Civ.P. 12(g)(h); *Giannakos v. M/V Bravo Trader,*762 F.2d 1295 (5 Cir. 1985); *Golden v. Cox Furniture Mfg. Co., Inc.,*683 F.2d 115 (5 Cir.1982) rehearing denied 685 F.2d 1385 (5 Cir.1982).

My brothers in the majority failed to mention a recent federal court case which reviewed the question of whether or not it was necessary for a defendant to return the acknowledgment in accordance with Fed.R.Civ.P. 4(c)(2)(C)(ii) to provide valid and effective service. I am of the opinion that *Morse v. Elmira Country Club,*752 F.2d 35 (2 Cir.1984) is much more closely on point to the instant case than *Delta Steamship Line v. Albano, supra.*In *Morse, supra,*the defendant did not return the acknowledgment and informed the plaintiff of such, and further informed the plaintiff that he should proceed with the alternate form of personal service prescribed in Fed.R.Civ.P. 4(c)(2)(C)(ii). However, by the time plaintiff served defendant personally, the statute of limitations for personal injury actions had run. The district court ordered the complaint dismissed, noting that the dismissal effectively rewarded the defendant for non-compliance with the federal rules, but considered the ultimate fault to be with plaintiff for attempting service by mail so close to the deadline of the statute of limitations. The United States Court of Appeals, Second Circuit, reversed, stating:

> A. There is no doubt that defendant received mail service, and was aware of that service, by May 28, 1983 — well before the limitations period ended. This fell within the precise wording of Rule 4(c)(2)(C). [ ...] Plaintiff’s actions in this case conformed with these exact requirements of the rule, and all the necessary steps were complete before the end of May 1983, prior to the statute of limitations deadline. “Service is complete when all the required acts are done.” 72 C.J.S. *Process*§ 43 (1951).

The Court further stated:

> We do not agree that the rule should be read to void a received-but-unacknowledged mail service, or to substitute the requirement of personal service in lieu of an acknowledged mail service. First, the words do not say in terms that a received-but-unacknowledged mail service is ineffective, nor do they command personal service as a prerequisite to effective service by mail (if mail service is unacknowledged). What Rule 4(c) states is: “If no acknowledgment of *service*[by mail] ... is received ... *service*shall be made under subparagraph (A) or (B)” (emphasis added). Thus, the rule calls, not for personal service as a completion of or substitution for the mailed service, but for a *second*(personal) service should defendant ignore the rule by refusing to return the acknowledgment. It may well be that, under the literal terms of Rule 4(g), plaintiff could not make *proof*of service without the subsequent personal service.8 However, service may be effective without a return. Rule 4(g) provides that “[f]ailure to make proof of service does not affect the validity of the service.” The apparent purpose of the second service — to provide a foundation for the return — is another indication that it is irrelevant for valid and effective service, [cites omitted] [emphasis ours].

Finally, the Court held:

> There is, in other words, no rationale for allowing a properly served defendant deliberately and willfully to postpone the ending of limitations by simply refusing to do what the rule calls upon him to do.

See also *Prather v. Raymond Const. Co., Inc.,*570 F.Supp. 278 (N.D.Georgia, 1983).

One impact of the decision in *Morse, supra,*may be to determine on a case-by-case basis whether or not an alleged mailing was actually received by the defendant; however, that is not a problem in the instant case. Here, although the defendants did not return a signed acknowledgment, their actions tacitly acknowledged receipt of service of process and they did not object to the insufficiency of service prior to their general appearance before the court by means of answers and discovery. Their actions, on which plaintiff relied to his detriment, deliberately deceived the plaintiff and lulled him into a false sense of security. Therefore, defendants cannot now be *130heard to complain that service was not perfected, and justice should not permit them to now take advantage of these deliberately misleading actions.

I would hold that appellees were served adequately and legally with service of process within the applicable limitations period. I would also note that the holding should be restricted to the instant case. I am not, by this dissent, advocating service of process by mail in state court actions.

Accordingly, for the foregoing reasons, I respectfully dissent.