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November 9, 1989

M/V REETER II, its engines, tackle apparel, etc., in rem, and HOWARD KORER, in personam, Defendants, and AMERICAN NATIONAL BANK OF MELROSE PARK, Garnishee

Brian Barnett Duff, United States District Judge.

The opinion of the court was delivered by: DUFF



 Howard Korer is an Illinois resident and owner of the vessel M/V Reeter Too. Korer usually keeps his vessel in Lincolnwood, Illinois, where he formerly resided. Between October 1987 and late March 1988, however, Korer docked his craft in Louisiana. While the Reeter Too was there, Korer allegedly contracted with Schubert's Marine Sales and Service, Inc., for repairs. Schubert's is a Louisiana corporation with its principal place of business in New Orleans, Louisiana. Schubert's allegedly did as Korer asked, and Korer sailed away -- allegedly without paying for services rendered.

 Schubert's filed suit in the U.S. District Court for the Eastern District of Louisiana *fn1" against the Reeter Too in rem and Korer in personam. Schubert's attempted to serve Korer with process in two ways. It first sent process by certified mail to Korer's business address, allegedly the only address which Korer had given to Schubert's. Carol Korer (her relation to Howard is unknown) acknowledged receipt of the letter and signed for it in the space market "Signature -- Agent." Schubert's requested that Howard Korer acknowledge receipt of service, but Howard did not oblige. Schubert's thus tried a different tack: service on Korer at his residence. The process server allegedly went to Korer's residence around 5:00 p.m. on September 17, 1988, and left service with Shirley Wise. The process server has sworn that Wise was "over eighteen years of age, and of suitable discretion who advised [the server] that she was a house-sitter for Mr. Howard Korer."

 Korer never answered the complaint filed by Schubert's. The Clerk of the Louisiana court thus entered a default judgment against Korer, on a motion by Schubert's. The court subsequently certified a judgment in the amount of $ 14,322.72 for registration in other federal districts. Schubert's then retained counsel in Illinois, who registered the Louisiana judgment in this court on July 13, 1989.

 Korer has moved in this court for an order vacating the judgment of the Louisiana court under Rule 60(b)(4), Fed.R.Civ.P. Korer argues that the Louisiana court did not have personal jurisdiction over him, as he never received service of process. See Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 98 L. Ed. 2d 415, 108 S. Ct. 404 (1987) (court does not acquire personal jurisdiction unless procedural requirements for service of summons are satisfied). Korer also has moved for sanctions under Rule 11 against the Louisiana attorneys for Schubert's. Schubert's has two responses: first, that Korer has picked the wrong forum for this motion, and second, that service was proper.

 The question of which court should decide a motion to vacate for lack of personal jurisdiction, where the court to which the motion is addressed is not the one which rendered the judgment, is a difficult one. A motion under Rule 60(b)(4) is addressed to the discretion of the court. See Fuhrman v. Livaditis, 611 F.2d 203, 204 (7th Cir. 1979). Part of the court's exercise of discretion is deciding whether it or the court which produced the judgment should decide the motion to vacate the judgment. In Fuhrman, the Seventh Circuit affirmed the decision of a district court which declined to hear a motion for relief from judgment, where the court believed that declining the motion fostered comity and efficient judicial administration. By contrast, the Seventh Circuit in Credit Alliance Corp. v. Campbell, 845 F.2d 725 (7th Cir. 1988), upheld the decision of a district court to grant a similar motion, where the interests present in Fuhrman were absent.

 Fuhrman suggests that the best way to decide which court should entertain the motion is to weigh the factors which courts traditionally consider in deciding whether a forum is convenient. See Fuhrman, 611 F.2d at 204, quoting United States v. Fluor Corporation, 436 F.2d 383, 384 (2d Cir. 1970) ("'The analogy to the federal courts' traditional forum non conveniens procedures is persuasive.'"). The Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), listed these factors, among others, in considering the convenience of a forum: the private interests of the litigants, the relative ease of access of proof, the availability of compulsory process for attendance of unwilling witnesses, the costs of getting witnesses to attend, the practical problems in trial, the public's interest in adjudicating matters affected with a local concern, and the court's familiarity with the applicable law.

 Korer suggests that these factors easily weigh in his favor. He argues that all of the questions which his motion raises are ones of federal law, as they concern the interpretation of various provisions of the federal rule governing service of process, Rule 4. He suggests that the answers to these questions are so clear-cut that this court can rule on them on the basis of the materials which the parties have presented in contesting this motion. If this were so, the Louisiana court would not be in a better position than this court to hear this motion, and consideration of the other factors set forth in Gilbert would be unnecessary.

 Korer overestimates the ease with which any court, including this one, can rule on his motion. Korer assumes that Schubert's bears the burden of establishing the validity of service now that Korer has contested it. This is an erroneous assumption. Based on the materials submitted to this court, it is likely that Korer knew of the suit against him, even if he did not receive proper service. Had Korer contested process by way of a motion under Rules 12(b)(2) or 12(b)(5), Schubert's indeed would have the burden of proof. But the time for preliminary motions has expired. What Korer seeks now is relief from a judgment; in requesting this relief, Korer bears the burden of proof. See Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 401 (7th Cir. 1986) (defendant who knows of action but allows it to proceed to default judgment bears the burden of proof in contesting jurisdiction by way of Rule 60(b)(4)).

 Who bears the burden of proof is important to how this court decides which forum is best for this motion. The evidence is strong, notwithstanding Korer's burden, that Schubert's did not serve Korer properly by mail. Schubert's concedes that Korer did not return a proper acknowledgement of its attempted service by mail, so service was not proper under Rule 4(c)(2)(C)(ii). But Schubert's insists that it properly served Korer at Korer's residence, under Rule 4(d)(1). Korer has the burden of proof in showing Schubert's failed, and while Korer submits evidence suggesting service was improper -- Wise may not have been "residing" at Korer's residence -- this evidence is not so clear as to allow this court to rule on the basis of papers alone.

 This court thus must return to the factors listed in Gilbert. Korer has a personal interest in seeing this question litigated here, as it will cost him less than if it were to be decided in Louisiana. Schubert's apparently has an interest in litigating this question in Louisiana, as it has opposed Korer's motion, but Schubert's already was litigating questions on this case in this court, as it sought to enforce its judgment here. This suggests that Schubert's too has an interest here. As for the proofs in this case, it appears that key testimony will come from Korer, Wise, and the process server. From all that appears, these persons are Illinois residents; the Louisiana court would not have a means of compelling one of them, Wise, to testify, while this court would. The costs of having these witnesses attend proceedings here would be less than if they went to Louisiana. As for local interests in deciding this motion, neither party asserts any.

 These factors indicate that litigation of the question of the sufficiency of service should remain here. Such a result would not offend the principle of comity, as the Louisiana court's actions were minimal. See Credit Alliance, 845 F.2d at 727-28. *fn2" There also is no suggestion, unlike in Fuhrman, that litigation in Louisiana will spare Schubert's from multiple challenges to the Louisiana judgment. If all of Korer's assets are in this district, this is as good a forum as Louisiana to litigate claims relating to those assets. See Credit Alliance, 845 F.2d at 728 (proper for enforcing court to determine if debtor deserves relief under Rule 60(b)).

 The court thus will take Korer's motion under advisement, and will direct the clerk to schedule a hearing to determine whether Schubert's properly served Korer at his residence. Korer's motion for sanctions under Rule 11 is denied.

 DATE: November 9, 1989

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