In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-4205

LISA HOMER,

Defendant-Appellant,

v.

NATHANIEL JONES-BEY,

Plaintiff-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 98-C-485—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED MAY 13, 2005—DECIDED JULY 22, 2005

____________

Before CUDAHY, EASTERBROOK and KANNE, Circuit

Judges.

CUDAHY, Circuit Judge. Defendant Lisa Homer, who was

named (as “Lisa Hommer”) as a defendant in Plaintiff

Jones-Bey’s prisoner suit alleging deliberate disregard of

his medical needs, appeals the entry of a default judgment

against her and the denial of her subsequent Rule 60(b)

motion to set aside that judgment. Homer claims that she

was never served with process in the suit. For the reasons

that follow, we vacate the judgment and remand for further

proceedings.
2 No. 04-4205

I. FACTUAL BACKGROUND AND DISPOSITION

BELOW

Most of the basic facts underlying this appeal are

straightforward. On June 30, 1999, plaintiff Nathaniel

Jones-Bey, a state prisoner, filed a lawsuit alleging that

Indiana Maximum Control Facility (MCF) nurse “Lisa

Hommer” and two other defendants had been deliberately

indifferent to his serious medical needs in violation of the

Eighth Amendment. “Lisa Hommer” entered no appearance

in the case, which went to a jury trial on February 25, 2002.

The district court docket records a “RETURN OF SERVICE

executed upon defendant Lisa Hommer on 10/30/99.” At

trial the district court granted both of Homer’s co-defendants judgment as a matter of law, but also granted JonesBey’s motion for a default judgment against “Hommer.” The

jury awarded $40,000 in damages against “Hommer” on

March 7, 2002.

After some procedural wrangling about Jones-Bey’s attempt to pursue proceedings supplemental against “Lisa

Hommer,” the matter was finally set for a hearing in

September of 2003. Lisa Homer was served with a summons

on September 16, 2003, and the return of service was filed

with the court on the next day. The summons identified

Homer as the “Judgment Debtor” and instructed her to appear in federal court “to answer concerning the judgment

debtor’s property, income, and profits.” `

After multiple continuances, the court granted JonesBey’s motion to initiate a garnishment hearing against

“Hommer” on June 1, 2004. On June 7, 2004, Lisa Homer

appeared by counsel and moved the district court, pursuant

to Federal Rule of Procedure 60(b), to set aside the default

judgment against her for lack of personal jurisdiction and

to dismiss the action against her. Specifically, Homer

argued that she was never properly served with process in

connection with the 1999 lawsuit, and thus that the default
No. 04-4205 3

judgment entered against her was void. Homer submitted

her own declaration averring that her name was not “Lisa

Hommer,” that she had not worked at the MCF in

Westville, Indiana since July 1998 and that she had not

been served in 1999 with a copy of the complaint or summons that ultimately led to the default judgment against

her. She stated that she had no knowledge whatsoever of

the existence of that action until she was served with

process identifying her as the “Judgment Debtor” in

September 2003.

Jones responded on August 13, 2004. Attached to the

response was a Declaration by Paul Joseph of the U.S.

Marshals Service, who stated that he had handled the

summons to “Lisa Hommer” in October of 1999. He stated

that he had learned from the MCF that “Lisa Homer” no

longer worked there, and he sent the summons to Homer’s

last known residential address as provided by the MCF.

Consistent with the practice of the Marshals Service (for

security reasons), Joseph stated that he had not noted the

address on the summons. He recited that he had received

the signed return receipt for the summons from the posted

address on October 30, 1999, and that it had been signed by

someone named “Homer.” Joseph also declared that he was

familiar with Homer’s address because he had sent her

several certified postings during 1999, and that he sent the

2003 summons (which Homer did receive) to the same

address he had used in 1999.

Attached to Joseph’s declaration was a copy of the

“PROCESS RECEIPT AND RETURN” form ordering service

of process on “Lisa Hommer” at the MCF facility, signed

by an “L. Jozaite” and dated October 29, 1999. Apparently

believing that Homer still worked at the MCF facility,

Jones-Bey had initially attempted, via the Marshals

Service, to serve her there. When this attempt failed, service was re-routed to a different address—presumably the

one on file with the MCF as Homer’s home address. How-
4 No. 04-4205

ever, consistent with the policy of the Marshals Service, the

Return of Service form does not list this new address; it

merely gives a certified mail number and states “Sent to

last known address.” Most crucially, the original certified

postal receipt from October 30, 1999—the only document

bearing the address to which the original 1999 summons

was actually sent and the signature of the individual who

received the mailing—was missing. Joseph testified that,

pursuant to Marshals Service standard record-keeping protocols, postal receipts are routinely destroyed three years

after they are received. The original postal receipt from the

1999 summons thus apparently had been destroyed pursuant to this policy.

On August 27, 2004, Homer replied to Jones-Bey’s response. Homer also submitted a declaration from Joseph,

and this one expressly recanted many of his earlier statements in the Jones-Bey declaration. Joseph now stated that

he could not recall the address to which the summons and

complaint were sent in 1999, and he did not know whether

the MCF had given him the correct address when he sent

them. He also stated that he did not remember whether the

name signed on the postal receipt was “Homer.” Further, he

declared that he was now unsure whether the same address

was used in mailing the 1999 summons and in mailing the

2003 order to appear (other than that the city was the

same). Joseph also reiterated that the original postal return

receipt from the October 1999 mailing had been destroyed

consistent with standard record-keeping procedures. Joseph

finally expressly withdrew any statement in his earlier

declaration that conflicted with these later recitations.

Faced with this dearth of definitive information, the district court initially proposed that an evidentiary hearing be

held to probe the details of the Marshals Service’s attempts

to serve Homer in 1999. This proposal was rejected, and the

court proceeded to rule on the merits of Homer’s Rule 60(b)

motion. On November 12, 2004, the district court denied
No. 04-4205 5

Homer’s Rule 60(b) motion to set aside the default judgment. The district court ruled that (1) the Marshals Service’s return of service document showing that process had

been served on “Lisa Hommer” on October 29, 1999, though

it specified no particular address and identified no specific

individual as having received the service, constituted a

prima facie showing that Homer had been served with

process, and (2) Homer had not rebutted this showing with

“strong and convincing” evidence. (Nov. 12, 2004 Order).

Homer now appeals.

II. JURISDICTION

Our jurisdiction over the present appeal is not disputed.

The district court had jurisdiction over Jones-Bey’s Eighth

Amendment claims pursuant to 28 U.S.C. §§ 1331 and

1334, and it entered a default judgment against “Lisa

Hommer” in the amount of $40,000 on March 7, 2002. On

June 7, 2004, Homer appeared and made her Rule 60(b)

motion asking that the judgment be set aside as void for

lack of personal jurisdiction. The district court denied that

motion on November 12, 2004 and entered its final order to

that effect on November 16, 2004. Homer timely filed the

instant appeal on December 13, 2004. Accordingly, our

jurisdiction now rests on 28 U.S.C. § 1291.

III. DISCUSSION

Homer challenges the denial of her Rule 60(b) motion to

set aside the earlier default judgment against her for lack

of personal jurisdiction. Under Federal Rule of Civil

Procedure 60(b)(4), a movant “ ‘may attack the judgment for

lack of jurisdiction over the person at any time since a

judgment rendered without jurisdiction over the person [is]

void.’ ” Robinson Engineering Co. Pension Plan and Trust v.

George, 223 F.3d 445, 453 (7th Cir. 2000) (quoting Taft v.
6 No. 04-4205

1 In support of this disposition, the district court made the

following factual findings:

The Westville Prison gave [Paul Joseph] Ms. Homer’s last

known residential address, and Mr. Joseph sent the summons

and complaint to that address by certified mail on October 29,

1999. On October 30, service arrived at Ms. Homer’s last

known address, and the return receipt was signed and returned to Mr. Joseph’s office. Once he received the signed

return receipt from Ms. Homer’s last known address,

Mr. Joseph had the “Process Receipt and Return” signed,

dated and filed with the court on November 2, 1999 as a

“Return of Service executed upon Lisa Hommer [sic] on

10/30/99.”

(Nov. 12, 2004 Order, App. at 43-44.)

Donellan Jerome, Inc., 407 F.2d 807, 808 (7th Cir. 1969)). In

denying Homer’s motion, the district court relied on the

general principle that, under Federal Rule of Civil Procedure 4, “[a] signed return of service constitutes prima facie

evidence of valid service ‘which can be overcome only by

strong and convincing evidence.’ ” O’Brien v. R.J. O’Brien &

Associates, Inc., 998 F.2d 1394, 1398 (7th Cir. 1993) (quoting Hicklin v. Edwards, 226 F.2d 410, 414 (8th Cir. 1955)).

See also Taft v. Donellan Jerome, Inc., 407 F.2d 807, 808-09

(7th Cir. 1969) (same rule). Once such a prima facie showing is made, the burden shifts to the defendant to demonstrate that service was not received. Jones v. Jones, 217

F.2d 239, 242 (7th Cir. 1954).

The district court observed that a signed return of service

was produced by the plaintiff in this case1

 and asserted that

the defendant presented no “strong and convincing” evidence to rebut this prima facie showing of service—no

evidence of a mistake or confusion regarding her address,

of her having moved, or of delivery to a different individual

at her correct address. (Nov. 12, 2004 Order, App. at 46.) In

light of these determinations, the district court concluded
No. 04-4205 7

2 With respect to the district court’s factual findings, Homer

argues that, since the return of service is silent as to the actual

address used or as to the individual who received the service,

there was no basis for finding that service was actually sent to

Homer’s “last known address” (as opposed to some other, erroneous address), or that the return receipt was signed. Homer points

out that there is no evidence that the address given to Joseph was

the one used to mail the summons, Paul Joseph denied knowing

whether the receipt was signed, and Mr. Joseph did not know if

the address given him was actually Homer’s address.

that Homer had not overcome Jones-Bey’s prima facie

showing of service, and it denied her Rule 60(b) motion to

set aside the default judgment.

Homer challenges the district court’s ruling on several

grounds: she argues that (1) the record does not support the

district court’s factual findings,2

 (2) a return of service that

does not indicate the address used or the individual who

received the service is insufficient to make out a prima facie

showing of service under O’Brien and related cases and (3)

Jones-Bey cannot carry his burden of showing that the

district court had personal jurisdiction over Homer in the

first place.

We review the district court’s entry of default judgment,

as well as its denial of a motion to set aside such a judgment, for an abuse of discretion. George, 223 F.3d at 448. If

the district court had no jurisdiction over the movant, its

judgment is void and it is an abuse of discretion to deny the

movant’s request to set aside the judgment under

Rule 60(b). Id. See also United States v. Indoor Cultivation

Equipment From High Tech Indoor Garden Supply, 55 F.3d

1311, 1317 (7th Cir. 1995) (“If the underlying judgment is

void, it is a per se abuse of discretion for a district court to

deny a movant’s motion to vacate the judgment under Rule

60(b)(4).”). We review de novo the sufficiency of service at
8 No. 04-4205

3 See, e.g., LSJ Inv. Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 323

(6th Cir. 1999) (ruling that the district court did not err in determining service was proper where return receipt identified the

individual who received service and an address the defendant had

repeatedly given as a valid mailing address); Home-Stake

Production Co. v. Talon Petroleum, C.A., 907 F.2d 1012, 1016-17

(10th Cir. 1990) (holding that prima facie showing was made

where return of service identified the specific address used and

stated that service was given to an individual who “identified

herself as the cook working for [defendant] for the past Twenty

years”).

4 See, e.g., Chester v. Green, 120 F.3d 1091 (10th Cir. 1997) (certified mail receipts which are not stamped by the post office and

which contain no acknowledgment showing actual delivery are

insufficient to demonstrate service); Gulley v. Mayo Foundation,

886 F.2d 161 165-66 (8th Cir. 1989) (mail receipt is insufficient if

(continued...)

the time of the original default judgment. Claus v. Mize,

317 F.3d 725, 727 (7th Cir. 2003).

As an initial matter, we note that it is questionable

whether the presumption of service and the burden-shifting

scheme referenced in O’Brien, Hicklin and Taft applies to

returns of service that do not specify the address used or

the identity of the individual who accepted the mailing.

Hicklin and Taft are distinguishable from the instant case

since the returns of service at issue in those cases specified

an address and/or an individual recipient. It is not entirely

clear whether O’Brien falls into this category as well since

the court there never indicated that the return of service

specified a particular address but merely stated that the

plaintiff “present[ed] the court with proof of service indicating [movant] had been served on August 23, 1989.” 998

F.2d at 1398. Other federal courts have similarly held that

more fully elaborated returns of service may be adequate to

demonstrate service of process,3

 and several have held

vague returns or incomplete mail receipts to be inadequate.4
No. 04-4205 9

4 (...continued)

signed by mail room employee rather than intended recipient

because it provides no evidence of actual, timely notice); See also

Scheerger v. Wiencek, 34 F. Supp. 805 (W.D.N.Y. 1940);

United States ex rel. Tar Products Co. v. Severin, 6 F. Supp. 754,

755 (M.D. Pa. 1934); Murphy v. Campbell Soup Co., 44 F.2d 214,

216 (D. Mass. 1930).

5 This is especially so in this case given that there was evidence

casting some doubt on Jones-Bey’s attempts to serve Homer from

the beginning, including the fact that Jones-Bey sent the summons to the wrong address initially and listed the defendant’s last

name as “Hommer.”

More fundamentally, application of the presumption of

service in cases like the one before us would actually undercut the burden-shifting scheme described in O’Brien since

a blank return of service essentially cannot be rebutted. If

an address or a receiving individual are specified on a

return of service (as is normally the case), a movant may

challenge service by demonstrating, for example, that the

address was incorrect or the specified recipient did not

deliver the summons to the movant. In such a situation the

O’Brien presumption and burden-shifting scheme makes

sense. The movant, after all, has the best access to information regarding her place of residence or living arrangement

at the time of alleged delivery.

However, if no address or receiving individual is specified

on the return of service, a movant has little or no basis on

which to challenge the alleged service of process, and the

O’Brien presumption becomes quite arbitrary. Where an

unelaborated return of service is countered by a similarly

unelaborated denial that service occurred, there would seem

to be little rational basis for crediting one party over the

other.5

 Indeed under the rule advocated by Jones-Bey, an

incomplete return of service would actually help the

beneficiary of a default judgment more than a complete one,
10 No. 04-4205

since a vague or blank return effectively cannot be rebutted.

This would seem to be a perverse result, not least because

generally it is the plaintiff who ordinarily bears the burden

of demonstrating that the district court had personal

jurisdiction over the parties, including valid service of

process. Claus, 317 F.3d at 727 (“The plaintiff bears the

burden of showing that personal jurisdiction over the

defendant exists”). Normally, if the evidence submitted by

the parties is inconclusive, as it appears to be in this case,

the plaintiff’s position is in jeopardy; yet application of the

O’Brien presumption would produce the exact opposite

result.

Happily, we need not definitively address this issue, and

the district court need not have either. In fact the district

court’s analytical approach to this case may have been

somewhat off the mark. Federal Rule of Civil Procedure 4(e)

provides that federal courts will have personal jurisdiction

over a defendant if (1) service is effected pursuant to the

law of the state where the district court is located, (2) a

summons is delivered to the defendant personally, (3) the

summons is left at the defendant’s usual abode with a

person of suitable age and discretion, or (4) the summons is

delivered to an authorized agent of the defendant. Fed. R.

Civ. P. 4(e). In other words, all methods of service specifically described by the Federal Rules of Civil Procedure

involve in-hand delivery. Here, however, the alleged service

was executed by certified mail, a state-law method not

specifically enumerated in Rule 4(e). Accordingly, the validity of service here turns not on the specifications of the

Federal Rules themselves but on the relevant provisions of

Indiana law. Claus, 317 F.3d at 727. The O’Brien presumption addresses evidentiary approaches for proving

the fact of service in federal court; it does not address

antecedent questions of whether the chosen method of

service conformed to the law.
No. 04-4205 11

6 Homer also cites a passage from Jones-Bey v. Wright, 876

F. Supp. 195 (N.D. Ind. 1995), in which the District Court

Northern District of Indiana ruled that the Marshals Service, in

making a return of service, must “hold the address [of the defendant] in confidence.” Id. at 198. Homer argues that this passage

indicates that U.S. Marshals are to retain records of a defendant’s

address so as to “permit the district court to determine where

service occurred in the event of a question about it.” This contention is problematic for two reasons. First, the district courts do

not create binding authority for this Court, and second, the

context of the statement suggests that the district court was more

(continued...)

Unfortunately, the Order of the district court does not

purport to address Indiana law, and based on the (sparse)

evidentiary record there remains a genuine question

whether the attempted service of process was valid as a

matter of state law. The relevant Indiana procedural rule,

which applies via Fed. R. Civ. P. 4(e)(1), provides only that

valid service may be made on an individual by “sending a

copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his

residence, place of business or employment with return

receipt requested and returned showing receipt of the

letter.” Ind. St. Trial P. R. 4.1(A)(1). Indiana Trial Rule 4.11

sets forth additional requirements for service by certified

mail. The rule states, in pertinent part:

In his return the clerk of the court or the governmental

agent shall show the date and place of mailing, a copy

of the return receipt if and when received by him

showing whether the mailing was accepted or returned,

and, if accepted, by whom. The return along with the

receipt shall be promptly filed by the clerk with the

pleadings and become a part of the record.

Ind. St. Trial P. R. 4.11.6
12 No. 04-4205

6 (...continued)

concerned about confidentiality than retention of addresses. The

full sentence reads: “The marshal shall hold the address in

confidence, and is not to divulge it to any person except by order

of this court.” Id.

The problem in this case, of course, is that the Marshals

Service’s return does not specify where exactly the summons was sent, nor does it include “a copy of the return

receipt . . . showing whether the mailing was accepted or

returned, and, if accepted, by whom.” Id. (emphasis added).

The original postal receipt, which presumably did specify

exactly where the summons was sent and who accepted it,

has been destroyed, ostensibly in accordance with the

Marshals Service’s internal record-keeping protocols. Thus,

for aught that appears, a proper mail receipt containing the

required information was never filed with the pleadings (as

required by Rule 4.11) in the initial action against Homer

in 1999, or in Jones-Bey’s motion for entry of default

judgment in June 2001; and contrary to the plain language

of Indiana Trial Rule 4.11, a proper receipt certainly has

not become a part of the record. Unfortunately, the district

court docket sheds no more light on the issue. It merely

recites a date of service and notes that “Lisa Hommer” was

served. Similarly, the return of service filed with the court

states only that service on “Lisa Hommer” was “[s]ent to

last known address.”

Such evidentiary deficiencies pose more than a theoretical

problem. It is a long-accepted proposition of Indiana law

that the very concept of “service,” across various statutory

contexts, includes the ability to provide proof of that service

in court. See Hendricks County Bank and Trust Co. v.

Guthrie Bldg. Materials, Inc., 663 N.E.2d 1180, 1185 (Ind.

Ct. App. 1996) (citing Lock Joint Tube Co. v. Citizens Trust

and Sav. Bank of South Bend, 31 N.E.2d 989, 993 (Ind.

1941) (citing Chi., Lake Shore & S. Bend Ry. Co. v. Sanders,
No. 04-4205 13

7 Though some of these cases involve state-law claims which implicate their own specific service requirements, they discuss the

concept of service in general terms, citing to Black’s Law Dictionary and discussing the universal legal implications of service and

notice. We see no reason why these discussions of “service” should

not apply in the context of the Indiana Trial Rules as well.

114 N.E. 986, 987 (Ind. Ct. App. 1917))); see also Leons v.

Bloemker, 649 N.E.2d 1041, 1043 (Ind. Ct. App. 1995);

Bayes v. Isenberg, 429 N.E.2d 654, 659 (Ind. Ct. App. 1981).7

In Hendricks, for example, service by fax was rejected

largely because claimants using fax service cannot demonstrate that notice was in fact delivered to someone authorized to accept it. 663 N.E.2d at 1185. The court explained:

“[S]ervice of notice” has a definite meaning, and unless

otherwise provided by law means “personal service of

the individual in such a way that the party who makes

service may be in a position to make due proof thereof to

the court.” . . . It is inherent in the concept of “service”

that service of notice upon a person or entity imposes

legal obligations and consequences that make the

manner and proof of such notice of utmost importance. . . . [T]he term “serves” means legally sufficient

service of notice upon which a due return of service can

be made.

Id. (quoting Lock Joint Tube, 31 N.E.2d at 993) (emphasis

added). In keeping with these proof requirements, Indiana

law places the risk of errant mail service on the plaintiff,

who chooses that method of service and is in the best position to establish whether it was proper. Roberts v. Watson,

359 N.E.2d 615, 619-20 (Ind. Ct. App. 1977).

In light of the legal consequences that service of process

carries, these proof requirements and burden allocations

make good sense. And in the present case, the existing record does not appear to allow Jones-Bey to make the re-
14 No. 04-4205

quired showing. Like the fax service rejected in Hendricks,

the mail service at issue here facially lacks adequate proof

or a sufficient return. Given the importance Indiana law

attaches not only to the existence but to the contents of

the return of service, and given the underlying purpose of

providing proof that service was properly made, it appears

that the attempted service of Homer was at least technically noncompliant with Indiana Trial Rules 4.1 and 4.11,

as well as with long-standing Indiana precedent.

Yet these technical shortcomings do not necessarily resolve the issue. Indiana Trial Rule 4.15(f) provides a savings

clause to cure harmless defects in service. It provides that

“[n]o summons or the service thereof shall be set aside or

adjudged insufficient when either is reasonably calculated

to inform the person to be served.” Ind. St. Trial P. R. 4.15(f).

Likewise, because Indiana Trial Rule 4.1 states that service

“may be made” in the ways that rule sets forth, Ind. St.

Trial P. R. 4.1 (emphasis added), the options specified in

Rule 4.1 have been held to be only “general guidelines for

service of process.” Swaim v. Moltan Co., 73 F.3d 711, 720

(7th Cir. 1996); accord Tabbert, Hahn, Earnest, Webble, P.C.

v. Lanza, 94 F. Supp. 2d 1010, 1012-13 (S.D. Ind. 2000)

(citing Swain and upholding service where properly mailed

summons improperly omitted complaints which were sent

and received several days later). In some cases, Indiana

courts have gone so far as to suggest that Indiana Trial

Rule 4.15(f), taken together with the seemingly discretionary language of Indiana Trial Rule 4.1 (“service may be

made . . .”), means that “personal jurisdiction is acquired by

any method of service . . . which comports with due process.” Washington v. Allison, 593 N.E.2d 1273, 1275 (Ind.

Ct. App. 1992) (emphasis added); accord Ind. St. Trial P. R.

4.15(f); Swaim, 73 F.3d at 720-21; Glennar Mercury-Lincoln, Inc. v. Riley, 338 N.E.2d 670, 675 (Ind. Ct. App. 1975).

But see Ind. St. Trial P. R. 4.11 (stating that “the governmental agent shall show” certain information in a return
No. 04-4205 15

which “shall . . . become a part of the record.”) (emphasis

added). This Court has even stated that “[s]ervice of process

that is reasonably calculated to inform, consistent with the

letter of Trial Rule 4.15(F), is sufficient even if it fails to

actually inform the party to which it is directed.” Swaim, 73

F.3d at 721; accord Glennar, 338 N.E.2d at 675 (same rule).

However, such sweeping language may disguise a narrower application. This broad language generally appears

in cases where a movant’s actual notice of the lawsuit is not

at issue, or where the movant “willfully avoided the proper

attempts at service.” Swaim, 73 F.3d at 721. Indiana courts

have explained the purpose of Rule 4.15(f) as preventing

defendants from ignoring reasonably calculated service

based on harmless technical defects (something which

would be impossible for a defendant without actual notice).

See, e.g., Glennar, 338 N.E.2d at 676. Thus, while technical

shortcomings in service may be excusable (especially where

the party to be served has actual notice of the lawsuit), a

complete failure of service is not. “[T]he saving effect of T.R.

4.15(F) is inapplicable if ‘there has been absolutely no

service upon [the movant]’ ” since rule 4.15(f) “ ‘presupposes

that there has been at least some kind of service upon the

party.’ ” Idlewine v. Madison County Bank and Trust Co.,

439 N.E.2d 1198, 1201, (Ind. Ct. App. 1982) (quoting

Southern Indiana Ry. Co. v. Indianapolis & L. Ry. Co., 81

N.E. 65, 66 (Ind. 1907)). See also LaPalme v. Romero, 621

N.E.2d 1102, 1106 (Ind. 1993) (“Indiana case law holds that

T.R. 4.15(F) only cures technical defects in the service of

process, not the total failure to serve process.”); Robinson v.

Turner, 886 F. Supp. 1451, 1458 (S.D. Ind. 1995) (holding

that service made to the wrong location was nonexistent

service which could not be cured by Indiana Trial Rule

4.15(f)); Roberts, 359 N.E.2d at 620 (same).

The question then becomes whether any deficiencies in

the attempted service of Lisa Homer were merely technical

(and thus curable under Rule 4.15(f)), or whether a complete failure of service has occurred. To answer this question
16 No. 04-4205

8 But cf. Mills v. Coil, 647 N.E.2d 679 (Ind. Ct. App. 1995) (holding that the fact that service was made to a two-year-old last

known address was not by itself sufficient to establish that service

was reasonably calculated to inform a defendant).

a court normally must review “the entire record of attempted

service,” Swaim, 73 F.3d at 721, but here the existing record is so sparse that it is simply impossible to assess. This

leaves us with two possible dispositions: We can either rule

that Jones-Bey has not carried his burden of proving that

Homer has been properly served (and grant Homer’s motion

outright), or we can vacate the district court’s denial of

Homer’s Rule 60(b) motion and remand the case for further

inquiry as to the factual circumstances and legal validity

(under Indiana law) of the alleged service. Since the precise

circumstances of the attempt to serve Homer remain so

murky, and since it is not clear whether the failure to

properly serve Homer was total or merely technical (and

thus curable under Trial Rule 4.15(f)), a remand for further

inquiry seems the best solution. This Court has recently

held that remand for additional evidentiary hearings is

warranted where the factual circumstances of disputed

service are unclear. George, 223 F.3d at 453 (remanding for

an evidentiary hearing where it was not clear from the

record who received the summons from the process server

in the movant’s apartment building).

Several factors will be relevant to the district court’s inquiry on remand. First, evidence of who in fact received

Homer’s summons would be highly relevant to—and perhaps dispositive of—the district court’s inquiry, see, e.g.,

Roberts, 359 N.E.2d at 620, as would evidence of the exact

address used in the mailing.8

 Similarly, because Homer was

successfully served with process for the garnishment

hearing leading to this appeal, evidence that Homer’s address had not changed between the two service attempts, or

that the same address was used for both attempts, would

suggest that the first service was similarly successful.
No. 04-4205 17

9 As a practical matter, since all claims against Homer’s codefendants were summarily dismissed, further proceedings against

Homer might appear to be a doomed enterprise. Indeed in

affirming the district court’s dismissal of these claims, this Court

wondered aloud at the district court’s entry of default judgment

against Homer: “[G]iven the court’s entry of a Rule 50(a) judgment

[as to both co-defendants], we wonder (that’s all we can do based

on an incomplete record) whether any award of damages was

appropriate.” Jones-Bey v. Rieger, 2003 WL 21956972, at *2

(unpublished order) (emphasis in original).

USCA-02-C-0072—7-22-05

Finally, though it is not a dispositive factor, the presence or

absence of actual notice would be highly probative of valid

service, including whether the challenged service was

reasonably calculated to inform Homer.

Of course, the burden of demonstrating the court’s personal jurisdiction over Homer remains squarely on JonesBey. Claus, 317 F.3d at 727. If, on remand, the district

court cannot shed even one more ray of light on the circumstances surrounding the attempted 1999 service, it

should grant Homer’s motion to set aside the default

judgment and allow Jones-Bey to attempt to re-serve

Homer and bring his claims against her anew. Cf. George,

223 F.3d at 453 (making the same disposition). Homer obviously has actual notice of the action by now, but, as has

been discussed, actual notice does not by itself constitute

valid service of process. Id. See also Swaim, 73 F.3d at 719;

Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297,

301 (7th Cir. 1991).9

IV. CONCLUSION

For the foregoing reasons, we VACATE the district court’s

order and REMAND the case for an evidentiary hearing
18 No. 04-4205

concerning the validity of the attempted service under the

relevant provisions of Indiana law.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-25-05