United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 22, 2015*

Decided September 23, 2015

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 15-1612

GERMAN AMERICAN FINANCIAL 

ADVISORS AND TRUST COMPANY 

as Trustee of the Robert G. Woodward,

Sr. Roth IRA,

Plaintiff-Appellee,

v.

JERRY C. RIGSBY and

MARY F. RIGSBY,

Defendants-Appellants.

Appeal from the 

United States District Court for the 

Southern District of Indiana, 

Evansville Division.

No. 3:14-cv-00118-RLY-WGH

Richard L. Young,

Chief Judge.

O R D E R

Jerry and Mary Rigsby appeal from a judgment for the plaintiff in this suit under 

the diversity jurisdiction to enforce a promissory note. The plaintiff prevailed on an 

unopposed motion for summary judgment, and like the district court, we conclude that 

the Rigsbys’ default and liability on the note are undisputed.

 

* After examining the briefs and record, we have concluded that oral argument is 

unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.

P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15-1612 Page 2

The Rigsbys, a married couple domiciled in North Carolina, purchased a Florida 

condominium in 2006 from the Robert G. Woodward, Sr. Roth IRA. The seller financed 

the transaction, and in 2009, after the Rigsbys had stopped making payments, the parties 

reached a settlement requiring that the Rigsbys convey the property to Wachovia Bank, 

as trustee for the seller, and execute a note promising to pay Wachovia $200,000 in 

June 2014 to account for the drop in market value. The promissory note provides that 

any lawsuit arising from the note will be brought in Monroe County, Florida, or the 

United States District Court for the Southern District of Indiana and be governed by 

Florida law. Wachovia later was acquired by Wells Fargo, which then assigned the note 

to the plaintiff, German American Financial Advisors & Trust Company. The plaintiff is 

incorporated, and has its principal place of business, in Indiana. The Rigsbys did not pay

the note when it came due, and German American filed this action in the Southern 

District of Indiana.

Only Jerry Rigsby answered the complaint. He objected to venue in Indiana, 

arguing that the couple’s settlement with the seller requires that all disputes arising from 

that agreement be heard by a court sitting in Monroe County, Florida. Jerry did not

mention the broader forum-selection clause in the promissory note.

German American moved for summary judgment against the Rigsbys and also 

asked the clerk of the district court to enter default against Mary Rigsby. The plaintiff

submitted a trust officer’s affidavit attesting that the Rigsbys had not paid the note and 

owed the principal plus late fees, interest, and attorney’s fees. German American’s 

attorney also submitted an affidavit—not based on personal knowledge—asserting that 

the company’s process server had left a copy of the complaint and summons on the door 

of Mary’s residence.

A week later the clerk entered a default against Mary Rigsby. Not until a month 

after the default, however, did the couple finally acknowledge the plaintiff’s motion for 

summary judgment. They requested more time to oppose that motion and identified 

several proposed defenses that they wanted the district court to consider if additional 

time was not granted. Yet the Rigsbys never followed up with their response, even after 

a magistrate judge had granted 30 more days and warned that their request for more 

time could not substitute for a response because it does not comply with Federal Rule of 

Civil Procedure 56 or the corresponding local rule. The Rigsbys’ proposed defenses

included a challenge to venue in Indiana and an assertion that North Carolina law does 

not allow for deficiency judgments, though they did not develop either contention. The 
No. 15-1612 Page 3

Rigsbys also asserted that the note could not be enforced because they executed it under 

duress. But they did not dispute signing the note or defaulting when it came due.

German American never asked the district court to enter a default judgment

against Mary Rigsby, see FED. R. CIV. P. 55(b)(2), so the court evaluated the plaintiff’s 

motion for summary judgment as against both spouses. Since neither had opposed the 

validity of the note or offered evidence of duress, the district court concluded that the 

Rigsbys’ nonpayment on a valid note was undisputed. The court entered judgment 

against them for $214,403.

On appeal Mary Rigsby first argues that she was not served with process and thus

the district court never acquired personal jurisdiction over her. The process server hired 

by German American filed with the district court a “proof of service” attesting that the 

summons and complaint had been “taped to the door” of Mary’s home in North

Carolina. Federal Rule of Civil Procedure 4(e) allows for personal service or, 

alternatively, leaving the complaint and summons with someone of “suitable age and 

discretion” at the defendant’s residence or else “following state law for serving a 

summons . . . in the state where the district court is located or where service is made.” 

The plaintiff’s process server did none of these things; leaving the papers on the 

defendant’s door is not enough to constitute valid service in either North Carolina or 

Indiana. See IND. R. TRIAL P. 4.1; N.C. R. CIV. P., G.S. § 1A-1, R. 4(j)(1); Thomison v. 

IK Indy, Inc., 858 N.E.2d 1052, 1055–56 (Ind. Ct. App. 2006); Gibby v. Lindsey, 560 S.E.2d 

589, 591–92 (N.C. Ct. App. 2002). Indiana does allow for service by leaving the summons 

and complaint at the defendant’s residence if copies also are mailed to that address. 

See IND. R. TRIAL P. 4.1(B); Swiggett Lumber Const. Co. v. Quandt, 806 N.E.2d 334, 337–38 

(Ind. Ct. App. 2004). But as far as the record shows, the process server did not even make 

this minimal extra effort.

So Mary Rigsby is correct that she was not served with process. Yet a defendant

will waive objection to the absence of personal jurisdiction by giving the plaintiff a

“reasonable expectation” that she “will defend the suit on the merits.” Mobile 

Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 

443 (7th Cir. 2010); see Cont’l Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993); Gerber

v. Riordan, 649 F.3d 514, 519 (6th Cir. 2011). And Mary signaled that she would defend 

the suit when she joined her husband in seeking more time to respond to German

American’s motion for summary judgment. Mary’s participation in that motion might 

seem at first blush too insignificant to waive her defense to personal jurisdiction since

asking for additional time to respond to a motion is not the type of activity that typically 
No. 15-1612 Page 4

will allow a plaintiff to reasonably expect a merits defense to follow. See Mobile 

Anesthesiologists, 623 F.3d at 443. What the Rigsbys filed, though, was more than a 

request for additional time; their submission proposes defenses for the district court to 

evaluate if more time was not allotted for them to challenge the motion for summary 

judgment. Mary’s participation in this filing waived any objection that she had to 

personal jurisdiction.

On the merits the Rigsbys don’t challenge the validity of, or their failure to pay, 

the promissory note. They simply rehash the defenses they proposed in requesting 

additional time to respond to German American’s motion for summary judgment. But 

their legal contentions remain undeveloped. And to the extent that the Rigsbys insist 

that the note was signed under duress and is unenforceable, they didn’t offer any 

evidence to support this asserted defense. The Rigsbys were warned first by German

American, see Timms v. Franks, 953 F.2d 281, 285 (7th Cir. 1992), and then by the 

magistrate judge that a response to a motion for summary judgment must comply with 

the rules, but they ignored those warnings, see FED. R. CIV. P. 56; S. DIST. IND. LOCAL 

R. 56-1; Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359–60 (7th Cir. 2009) (explaining 

that district courts are entitled to enforce Federal Rule of Civil Procedure 56 and parallel 

local rules even against pro se litigants); Greer v. Bd. of Educ. of Chi., 267 F.3d 723, 727 

(7th Cir. 2001) (same).

The undisputed evidence submitted by German American entitled the company 

to summary judgment. The Rigsbys executed a promissory note but defaulted on that 

note when it came due on June 22, 2014. 

AFFIRMED.