United States v. Joanne Warner , 32 F. App'x 190 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3834
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Joanne Warner, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: April 5, 2002
Filed: April 9, 2002
___________
Before McMILLIAN, BOWMAN, and BYE, Circuit Judges.
___________
PER CURIAM.
Joanne Warner appeals the District Court’s1 adverse grant of summary
judgment in this action brought by the United States to recover on Warner’s
delinquent student loans. For reversal, she argues that her due process rights were
violated, and that the District Court abused its discretion in granting summary
judgment because the court knew before the hearing, which she did not attend, that
she did not actually receive the United States' summary judgment pleadings and
supporting documents. We review de novo the due process issues calling for legal
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
conclusions, see Shelton v. Consumer Prods. Safety Comm'n, 277 F.3d 998, 1007
(8th Cir. 2002), and for clear error the factual question whether the United States
employed means that were reasonably calculated to provide Warner with actual
notice, see Fed. R. Civ. P. 52(a); cf. United States v. Clark, 84 F.3d 378, 381 (10th
Cir. 1996) (reviewing service method FBI used to notify of administrative forfeiture
proceeding).
The United States complied with the requirements for serving a summary
judgment motion. See Fed. R. Civ. P. 5(a), (b)(2)(B) (stating that acceptable method
of service is to mail copy to last known address of person served and that such service
is complete upon mailing). The United States’ reliance on that method of service in
the circumstances of this case satisfied due process. See Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314-15 (1950). Warner had used the address to
which the summary judgment documents were sent as her return address in a
document she sent to opposing counsel, she did not provide the court or the United
States with any other address, and the United States had no reason to believe that
anyone in her home was preventing Warner from receiving all correspondence mailed
to her. Contrary to Warner’s contention, the United States was not required to use
certified mail or to contact her personally to verify that she in fact had received the
documents. See Dusenbery v. United States, 122 S. Ct. 694, 700-01 & n.5 (2002)
(explaining that due process does not require actual notice).
Further, the District Court did not abuse its discretion by holding the summary
judgment hearing or by ruling on the motion after considering the defenses Warner
had raised in her answer to the complaint. Warner did not request a continuance, see
Crowell v. Campbell Soup Co., 264 F.3d 756, 760-61 (8th Cir. 2001) (finding no
abuse of discretion in district court's having ruled on summary judgment motion in
absence of request for additional discovery or a continuance), and although Warner
seeks a remand so she can respond to the summary judgment motion at another
-2-
hearing, she does not indicate how she could create a genuine issue of material fact
concerning her liability on the student loans.
Accordingly, we affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-