Vickie Bell v. Pulmosan Safety Equipment Corp , 906 F.3d 711 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1051
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Vickie Bell; Phillip B. Bell, Jr.; Johnathan Bell
lllllllllllllllllllll Plaintiffs - Appellees
v.
Pulmosan Safety Equipment Corporation
lllllllllllllllllllll Defendant - Appellant
Ruemelin Manufacturing Company, Inc.; Mine Safety Appliances Company;
Clemco Industries, Inc.; John Doe
lllllllllllllllllllll Defendants
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Appeal from United States District Court
for the Western District of Arkansas - El Dorado
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Submitted: December 13, 2017
Filed: October 9, 2018
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Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
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SMITH, Chief Judge.
Pulmosan Safety Equipment Corporation (“Pulmosan”) appeals the district
court’s grant of default judgment, arguing that it was never properly served. We agree
and reverse.
I. Background
Pulmosan is a defunct New York corporation that produced industrial safety
equipment intended to prevent inhalation of pneumoconiosis-causing dusts such as
silica.1 In 1986, faced with numerous product liability claims, it filed a certificate of
dissolution with the New York Secretary of State. Following the filing of its
certificate of dissolution, Pulmosan eventually ceased to maintain a regular place of
business or have a designated registered agent for service of process. However,
though the record does not show that he was Pulmosan’s registered agent for service
of process, Howard Weiss, former president of the company, continued to accept
service and legal correspondence on behalf of Pulmosan at his New York City home,
an apartment in Manhattan.
This state of affairs seems to have continued even after 2006, when a New
York court suspended Pulmosan’s dissolution to enable claims based on use of its
product that began prior to August 1, 1986. Ford v. Pulmosan Safety Equip. Corp.,
831 N.Y.S.2d 353 (N.Y. Sup. Ct. 2006), aff’d, 862 N.Y.S.2d 56 (N.Y. App. Div.
2008). Weiss died in May 2013. Pulmosan made no alternative arrangements for
service of process after Weiss’s death.
1
Generally, pneumoconiosis can be defined “as an inflammation of the lung
caused by inhalation of particles of foreign material.” Chambers v. Bigelow-Liptak
Corp., 344 S.W.2d 588, 590 n.1 (Ark. 1961); see also Coene v. 3M Co., No.
10-CV-6546-FPG, 2017 WL 1046749, at *3 (W.D.N.Y. Mar. 20, 2017)
(“Pneumoconiosis is an umbrella term for inflammation and fibrosis in the lungs
caused by the occupational inhalation of dust.” (citing Stedman’s Medical Dictionary
at 1522–23 (28th ed. 2006))).
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As alleged in the amended complaint in this case, Phillip Bell, Sr., worked in
Camden, Arkansas, at a job that exposed him to silica sand from 1968 until sometime
between 1982 and 1985. He used a respiratory protection hood produced by
Pulmosan. He developed pulmonary silicosis, a pneumoconiosal disorder, and died
from the disease in 2010. In October 2013, his widow, Vickie Bell, and sons Phillip
Bell, Jr., and Jonathan Bell (the “Bells”), sued Pulmosan and three other producers
of safety equipment that Bell had used. The Bells sent a copy of the summons and
complaint to Pulmosan, care of Weiss, at Weiss’s home address by certified mail,
return receipt requested. Delivery was not restricted to the addressee or the
addressee’s agent.
The documents were received on January 18, 2014, at the apartment building
where Weiss resided before his death, and signed for by Ceferino Figueroa, the
doorman and desk receptionist.2 Figueroa regularly signed for tenants’ packages and
placed them in their mailboxes. He followed this standard practice with the Bells’
certified mail, placing it in Weiss’s box.
Pulmosan did not file an answer or otherwise defend the suit within the time
allowed by the Federal Rules of Civil Procedure. Believing Pulmosan had been
served process, the Bells moved for and received the clerk’s entry of default in July
2014; however, the district court declined to grant their initial motion for default
judgment before the claims against the other defendants were adjudicated. After the
claims against the other defendants were resolved, the Bells again moved for default
judgment, stating the following regarding service of process: “After being properly
served by serving its registered agent for service of process, Howard Weiss,
2
There is some indication that Weiss’s widow, who served as secretary and
treasurer of Pulmosan while it was a going concern, also lived either in the same unit
where Weiss lived or, otherwise, had her own unit in the building, at the time of the
alleged service. As will be explained later in this opinion, where she lived at the time
of purported service is of no consequence.
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Pulmosan did not answer this lawsuit. Mr. Weiss remains the registered agent for
Pulmosan, and his address and physical location for service have not changed.” Mot.
to Re-Assert Default J. at 1, Bell v. Mine Safety Appliances, No. 1:13-cv-01075-SOH
(W.D. Ark. Mar. 24, 2016), ECF. No. 200. The district court granted the motion, and
it entered an order and judgment granting the plaintiffs over $1.3 million in damages
in August 2016.
A few weeks after entry of judgment, Pulmosan filed a motion for relief from
the judgment under Federal Rule of Civil Procedure 60(b)(4). The motion alleged that
Weiss was deceased at the time that service of process was purportedly made upon
him. Pulmosan contended that the district court consequently never obtained
jurisdiction over it. In response, the Bells argued that service was effective under the
Federal Rules of Civil Procedure or under Arkansas or New York law. As a general
matter, they suggested that Pulmosan’s failure to replace its agent or instruct
personnel at Weiss’s residence not to accept mail addressed to Pulmosan should
excuse their attempted service on a deceased person. They also asserted that Figueroa
was authorized to accept process on behalf of Pulmosan. Further, they claimed that
Weiss’s widow, Patricia Weiss (“Patricia”), was also a former corporate officer for
Pulmosan and resided at the same address as Weiss, curing any possible deficiency
in service. Additionally, the Bells asserted that Pulsoman’s motion itself constituted
an appearance that provided the court with jurisdiction, and, in the alternative,
requested leave to make another attempt at serving Pulmosan.
The district court found the mail delivery of service of process to Weiss’s
address effective against Pulmosan. In reaching its decision, the court considered
New York case law. It determined that a doorman may “accept service on behalf of
individual defendants and corporations in New York upon a showing that the
doorman had such authorization.” Bell v. Mine Safety Appliances et al., No. 1:13-cv-
01075-SOH, 2016 WL 7650651, at *2 (W.D. Ark. Dec. 6, 2016) (citing Bezoza v.
Bezoza, 921 N.Y.S.2d 247, 248 (N.Y. App. Div. 2011)). The court also considered
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that the company had no regular place of business or registered agent, that the
plaintiffs used the best address they had for Pulmosan, that a living former officer
resided at that same address, and that Figueroa was never instructed not to “sign for
or accept any mail addressed to Pulmosan or Weiss.” Id. Further, the court concluded
that Figueroa was an agent not just for Weiss as a building resident, but also for
Pulmosan.
The district court held that the facts of the case satisfied the requirements of
Rule 4 of both the Federal and Arkansas Rules of Civil Procedure, as well as the
Local Rules of the Western District of Arkansas. Accordingly, it ruled that Pulmosan
had not demonstrated entitlement to relief under Federal Rule of Civil Procedure
60(b)(4), leading to Pulmosan’s appeal.
II. Discussion
We review the denial of Pulmosan’s Rule 60(b)(4) motion de novo. See
Johnson v. Arden, 614 F.3d 785, 799 (8th Cir. 2010) (citation omitted). Federal Rule
of Civil Procedure 60(b)(4), under which Pulmosan proceeded at the district court
level, requires relief from a judgment when that judgment is void. “A judgment is
void if the rendering court lacked jurisdiction or acted in a manner inconsistent with
due process.” Baldwin v. Credit Based Asset Servicing & Securitization, 516 F.3d
734, 737 (8th Cir. 2008) (citations omitted). “If a defendant is improperly served, a
federal court lacks jurisdiction over the defendant.” Printed Media Servs., Inc. v.
Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993) (citation omitted). Therefore, if
service was not proper, the district court lacked jurisdiction, and the default judgment
is void.3
3
We have not stated which party carries the burden of proof when a defendant
moves to vacate a default judgment for want of service, and there exists a circuit split
on this issue. See Arpaio v. Dupre, 527 F. App’x 108, 113 n.4 (3d Cir. 2013) (listing
cases). However, we need not resolve this issue here because the result would be the
same under either standard.
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Under basic principles of agency law, the death of an agent terminates his
authority to act on behalf of the principal. See Restatement (Second) of Agency § 121
(1958); 2A C.J.S. Agency § 130 (1972); Badger Dome Oil Co. v. Hallam, 99 F.2d
293, 298 (8th Cir. 1938). Weiss’s death prevented him from receiving service of
process on behalf of Pulmosan. Similarly, even if Figueroa had at some point acted
as Weiss’s agent, Weiss’s death terminated that relationship. See Ark. Bd. of
Embalmers & Funeral Dirs. v. Reddick, 233 S.W.3d 639, 643 (Ark. 2006) (“The
power of agency ends with death of the principal.” (citation omitted)); Wisdom v.
Wisdom, 488 N.Y.S.2d 682, 684 (N.Y. App. Div. 1985) (“[T]he death of a principal
ordinarily revokes the authority of the agent . . . . ”). Additionally, we reject the Bells’
contention that, under New York law, Figueroa qualified as Pulmosan’s agent.
The Bells rely on the New York Court of Appeals’ statement that “a
corporation may assign the task of accepting process and may establish procedures
for insuring that the papers are directed to those ultimately responsible for defending
its interests.” Fashion Page, Ltd. v. Zurich Ins. Co., 406 N.E.2d 747, 751 (N.Y.
1980). Fashion Page, however, does not support the Bells’ position. It involved an
attempted service on a corporation by delivery to a living, subordinate employee to
a corporate vice-president. In Fashion Page, a process server attempting to serve a
corporation (Zurich) went to its office and inquired with a receptionist as to who
could accept service. Id. at 749. She directed him to Ann Robertson, a woman who
served as executive secretary to the vice president in charge of Zurich’s New York
office. Id. Robertson accepted the papers on Zurich’s behalf, and when asked, ensured
the process server that she could do so. Id. However, Zurich later attempted to have
the suit dismissed on the basis that this service did not comply with New York
statutory requirements. Id.
The facts in this case do not show that Figueroa ever worked for Pulmosan or
acted on its behalf. The facts also do not reflect that the process server received any
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information from Pulmosan or anyone representing it indicating that Figueroa was a
proper party to receive service. The record in the instant case simply shows that a
mail carrier asked a doorman to sign for a package to be delivered to someone
believed to be an apartment resident. In fact, Figueroa occupies a role similar to the
one the Fashion Page court stated in dicta would not qualify under the service
provision: “In evaluating whether service is to be sustained, the circumstances of the
particular case must be weighed. Delivering the summons to a building receptionist,
not employed by the defendant, without any inquiry as to whether [he] is a company
employee, would not be sufficient.” Id. at 751.4
The other cases the Bells cite for this proposition fail for similar reasons. See
Eastman Kodak Co. v. Miller & Miller Consulting Actuaries, Inc., 601 N.Y.S.2d 10,
11 (N.Y. App. Div. 1993) (holding service valid where service was upon corporation
president’s receptionist, who was “situated outside the office of the defendant’s
president” at its place of business, and this manner of service “had been effected . . .
on at least six prior occasions,” clothing the receptionist “with apparent authority to
receive service on behalf of the defendant”); AMB Fund III New York III & IV, LLC
v. WWTL Logistics, Inc., 942 N.Y.S.2d 307, 309 (N.Y. App. Term 2012) (holding
4
We also note that the attempted service here is unlike that which occurred in
Fashion Page, which took place in an office building that was the corporation’s place
of business. See Avanti Enters., Inc. v. A&T Produce, Inc., No. 09-CV-1185-NGG-
SMG, 2010 WL 3924771, at *3 (E.D.N.Y. July 21, 2010) (determining Fashion Page
inapposite where “service [was] made on an individual who [was] not authorized to
accept service at a location that [was] not the corporation’s actual place of business”),
report and recommendation adopted, No. 09-CV-1185, 2010 WL 3909243 (E.D.N.Y.
Sept. 30, 2010); Llolla v. Karen Gardens Apartment Corp., No. 12-CV-1356-MKB-
JO, 2016 WL 233665, at *6 (E.D.N.Y. Jan. 20, 2016) (collecting cases and holding
service invalid where “Plaintiff’s process server did not go to a corporate office or
speak to any corporate employees who directed him to an individual authorized to
accept service. Instead, Plaintiff’s process server went to a mail center where [the
defendant] rented a post office box and spoke to a mail center employee.”).
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service valid where general manager, who was the individual identified by secretary
as proper recipient of service and exercised “supervisory duties” and “had accepted
process in the past,” signed for papers); see also Bezoza, 921 N.Y.S.2d at 248
(holding service through doorman valid as to individual defendants but invalid as to
corporate defendant because the plaintiff “failed to show that the doorman was ‘an
officer, director, managing or general agent, or cashier or assistant cashier or to any
other agent authorized by appointment or by law to receive service’ on behalf of the
corporation” (quoting N.Y. C.P.L.R. § 311(a)(1))). New York law does not support
holding that service was valid.
Arkansas Rule of Civil Procedure 4(d)(5) allows service upon, among other
individuals, a corporation’s managing or general agent. See Lyons v. Forrest City
Mach. Works, Inc., 785 S.W.2d 220, 221–22 (Ark. 1990) (holding service to
corporation’s plant manager valid based on the fact that he had been with the
company for 32 years, was extremely knowledgeable about the business, and
“unquestionably had some measure of discretion in operating or managing
[corporation’s] business,” rendering him “a ranking person within [the corporation’s]
business . . . who could be trusted to make sure that any summons would be promptly
brought to the attention of the corporate people.”); May v. Bob Hankins Distrib. Co.,
785 S.W.2d 23, 25 (Ark. 1990) (“Service on the secretary of the corporation and the
bookkeeper, who testified that she was ‘more or less in charge of the office’ at the
time of the service, would be proper under Rule 4(d)(5).”). There is no support in
Arkansas law for valid service of process upon a corporation by delivery to the
residence of a deceased former corporate officer. The doorman to the deceased officer
does not substitute for the former corporate agent. Accordingly, we hold that service
was not made upon Figueroa as Pulmosan’s agent.
Finally, Weiss’s widow’s possible habitation at her husband’s former residence
does not validate the service in this case based on her former status as a corporate
officer. The Bells cite no authority for the proposition that a pre-dissolution corporate
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position revives if that corporation’s dissolution is suspended. And neither the New
York trial or the appellate court opinion affirmatively reinstates any Pulmosan
officers or directors. Even the Bells refer to both Weisses as “former” officers. See,
e.g., Appellees’ Br. at 4, 6, and 14; accord Pls.’ Concise Resp. & Br. in Opp’n to Def.
Pulmosan Safety Equipment Corporation’s Mot. to Vacate J., Ex. 1, at 2 n.1, Bell v.
Mine Safety Appliances et al., No. 1:13-cv-01075-SOH (W.D. Ark. Oct. 11, 2016),
ECF No. 212-1 (“While Mr. Weiss [,following suspension of Pulmosan’s
dissolution,] has not been reinstated as President of Pulmosan or appointed any
position within Pulmosan that would authorize him to take action on behalf of
Pulmosan . . . Mr. Weiss, as the former President, is the most appropriate person to
direct this Chapter 7 filing.” (citation omitted)). Therefore, service upon Patricia,
even if effectuated, does not provide jurisdiction over Pulmosan.
III. Conclusion
Because the attempted service of process in this case was invalid, the district
court lacked jurisdiction over Pulmosan, and its subsequent judgment is void.
Pulmosan’s Rule 60 motion should have been granted. We therefore reverse and
remand for proceedings consistent with this opinion.
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