Signed Return Of Service Must Be Rebutted With Strong And Convincing Evidence
RELATIONAL, LLC v. HODGES (December 8, 2010)
Robert Hodges and his brother operated Laminate Kingdom, a flooring business in Florida. In 2005, Hodges personally guaranteed up to $750,000 of Laminate's indebtedness to Relational, an equipment financer. The contract allowed for service of process on Hodges at his primary residence address in Miami by registered or certified mail. Relational brought suit on the guarantee shortly after Laminate entered bankruptcy proceedings. When it tried to serve Hodges by mail, it discovered that he had sold his house and returned to the United Kingdom without any forwarding address. Relational used a private investigator to locate Hodges. It discovered a U.K. government database on which Hodges listed his residential address in Harborne, Birmingham. Process server Karen Johns delivered the complaint to the listed address and signed a return of service and affidavit stating that she served a man at that address who identified himself as Robert Hodges. Soon, Relational received correspondence from English solicitors claiming that the address was not that of Robert Hodges but of his grandmother and that none of his family members knew of Hodge’s whereabouts. On Relational’s motion, the court entered a default judgment for $750,000. Relational attempted to enforce the default judgment for almost a year in the U.K. It met with resistance and delays by Hodges. The day before a hearing was scheduled in the U.K. to enforce the judgment, Hodges filed a Rule 60(b)(4) motion in the U.S. court, claiming he was never served. The court held an evidentiary hearing. When the court refused to allow John's to testify telephonically, Relational obtained and offered a supplemental affidavit. The supplemental affidavit added to her original affidavit a physical description of the man she served, which matched Hodges. The supplemental affidavit was not, however, certified by an administrator of oaths. Hodges testified that he did not live at the address, that he was never served, and that he was in a local pub on the day in question. Judge Coar (N.D. lll.) denied Hodges’ motion to strike the supplemental affidavit and denied, as well, his motion to vacate. Hodges appeals.
In their opinion, Seventh Circuit Judges Wood, Evans, and Sykes affirmed. The only issue on appeal was the factual question of whether Relational proved service on Hodges. The Court noted that the supplemental affidavit, notwithstanding the substantial attention it received from both parties, was immaterial. A signed return of service is prima face proof of service and can only be rebutted with strong and convincing evidence. Johns' original affidavit identifies the person she served as well as the time and place of service. That is all that is required to shift the burden to Hodges to rebut the presumption. Here, the district court found that Hodges failed to do so -- relying principally on credibility determinations. The district court noted that Hodges' behavior was consistent with dodging his obligations. He left the country without a forwarding address, he listed an address with the U.K. government that he then claimed was not his residence, and he delayed the judgment enforcement proceedings for almost a year. The Court deferred to the district court’s credibility determinations. The court was well within its discretion to deny Hodges' motion.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select