FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 21, 2010

JOHN LEY

ACTING CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12770

Non-Argument Calendar

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D. C. Docket No. 05-01267-CV-WSD-1

DOMINIC F. BARAGONA,

as the Personal Representative of

Lieutenant Colonel Dominic R. Baragona,

DOMINIC F. BARAGONA,

in his personal Capacity,

VILMA D. BARAGONA,

Plaintiffs-Appellants,

versus

KUWAIT GULF LINK TRANSPORT COMPANY,

MAHMOUD MUHAMMED HESSAIN SEROUR,

c/o Kuwait Gulf Link Transport Company,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 21, 2010)
Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

Plaintiffs, the father and mother of Dominic R. Baragona, appeal the district

court’s order vacating a default judgment against the defendants, Kuwait & Gulf

Link Transport Company (KGL). We affirm the district court’s order.

I. Background

On May 19, 2003, Lieutenant-Colonel Dominic R. Baragona died in a tragic

traffic collision with a truck operated by KGL in Iraq. KGL is incorporated under

Kuwaiti law and has its principal place of business in Kuwait.

Baragona’s father and mother filed suit under Georgia tort law in the United

States District Court for the Northern District of Georgia. The Baragonas served

KGL by international courier and through the Kuwaiti Ministry of Justice. KGL

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refused delivery of the complaint and summons but retained counsel in the United

States to monitor the proceedings. Upon the Baragonas’ motion for entry of

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default, KGL did not appear and the clerk of the court entered a default judgment

against KGL for its failure to appear or otherwise answer after service. The district

 Service on the Kuwaiti Ministry of Justice was performed under the requirements of the 1

Hague Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in

Civil or Commercial Matters, which the United States ratified on June 15, 1965, and to which

Kuwait acceded on May 2, 2002. 

 KGL also hired counsel in the United States to represent it in litigation with the United 2

States Army arising out of Baragona’s death. 

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court then scheduled an evidentiary hearing on personal jurisdiction and directed

the Baragonas to serve their memorandum of law on this issue on both KGL and its

counsel in the United States. The district court found that the Baragonas had

established a prima facie case that the court had personal jurisdiction and awarded

the Baragonas a default judgment of $4,907,048.

KGL then elected to make an appearance in this action by filing a motion to

set aside the judgment under Federal Rule of Civil Procedure 60(b)(4). After a

hearing, the district court determined that KGL lacked minimum contacts with

Georgia sufficient to support the exercise of personal jurisdiction under Georgia’s

long-arm statute and granted KGL’s motion to vacate the default judgment. The

Baragonas appeal.

II. Discussion

“We review de novo . . . a district court’s ruling upon a Rule 60(b)(4)

motion to set aside a judgment as void, because the question of the validity of a

judgment is a legal one.” Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001)

(citations and quotation marks omitted). We review the district court’s findings of

fact for clear error. United States v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002).

The Baragonas first argue that KGL waived its personal jurisdiction defense

through its “lawyerly gamesmanship” in ignoring valid service, retaining counsel

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in the United States, monitoring court proceedings, and then filing a motion to

vacate the judgment after a default judgment was rendered against it. A defendant

normally only waives a personal jurisdiction defense if he or she has entered an

appearance or was involved in overt wrongdoing to deceive the court and avoid

service of process. Sanderford v. Prudential Ins. Co., 902 F.2d 897, 899 (11th Cir.

1990). In this case, however, none of these circumstances are present and “[a]

defendant is always free to ignore the judicial proceedings, risk a default judgment,

and then challenge that judgment on jurisdictional grounds in a collateral

proceeding.” Ins. Corp. of Ir. v. Compagnie Des Bauxites de Guinee, 456 U.S.

694, 706 (1982). This is particularly true in this case where the court must

determine whether the constitutional requirements of minimum contacts are

satisfied. See Foster v. Arletty 3 Sarl, 278 F.3d 409, 413 (4th Cir. 2002) (holding

that the defendant, a French company, did not waive its personal jurisdiction

defense merely because it was served with process and had notice of the district

court proceedings).

The Baragonas point to cases they characterize as holding that a defendant’s

willful ignorance of district court proceedings waives a later challenge to personal

jurisdiction. Sanderford, 902 F.2d at 899; Wells v. Rockefeller, 728 F.2d 209, 214

(3d Cir. 1984). These cases, however, all involve the improper service of process.

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As we explained in Prewitt Enterprises, Inc. v. Organization of Petroleum

Exporting Countries:

The concept of personal jurisdiction comprises two distinct

components: amenability to jurisdiction and service of process.

Amenability to jurisdiction means that a defendant is within the

substantive reach of a forum’s jurisdiction under applicable law.

Service of process is simply the physical means by which that

jurisdiction is asserted.

353 F.3d 916, 925 n.15 (11th Cir. 2003). These cases, therefore, state that a

defendant that ignores faulty service of process might be found to have waived one

component of personal jurisdiction: the defense of improper service of process.

They do not, however, hold that a defendant waives the personal jurisdiction

defense when it receives notice but does not meet the constitutional test of

minimum contacts making it amenable to jurisdiction.

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The Baragonas also argue that KGL waived its personal jurisdiction defense

by entering into contracts with the United States government that contain Section

52-228-8 of the Federal Acquisition Regulation. 48 C.F.R. § 52.228-8. They

contend that this section, requiring contractors to maintain liability insurance “to

indemnify and hold harmless the Government against” third-party personal injury

and property loss claims, waives KGL’s defense of personal jurisdiction. 48

 The court in Sanderford stated: “This is not simply a case of personal jurisdiction, as 3

argued by appellant, rather we believe that this case turns on waiver of the defense of

insufficiency of process.” 902 F.2d at 900. 

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C.F.R. § 52.228-8(b). This section, however, makes no mention of a waiver of

personal jurisdiction and does not alter the required constitutional analysis that the

court must consider in lawfully exerting personal jurisdiction over KGL.

Finally, the Baragonas argue that the district court committed clear error

when it found that Baragona was killed by a KGL truck under contract with the

United Nations World Food Programme. This finding, however, is irrelevant to

the Baragonas’ argument that the district court had general jurisdiction over KGL

because there were “continuous and systematic” contacts between Georgia and

KGL. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416

(1984). Thus, we need not analyze this argument because the Baragonas have not

shown how this fact was relevant to or prejudiced their case. Maiz v. Virani, 253

F.3d 641, 667 (11th Cir. 2001) (“We will not overturn an evidentiary ruling and

order a new trial unless the objecting party has shown a substantial prejudicial

effect from the ruling.”).

Accordingly, the district court’s order is

AFFIRMED.

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