Civil
procedure — Default — Vacation — Service of process — Corporation outside
United States — Appeal from denial of rule 60(b)(4) motion to vacate default
judgment as void for lack of service of process — District court erred in
concluding that plaintiff had properly served defendant in Saudi Arabia using
Federal Express because that means of service is not specifically authorized by
Federal Rule of Civil Procedure 4 and plaintiff had not received prior
authorization to serve defendant using that method — Evidence showing that
defendant’s registered agent had actual notice of lawsuit not basis for finding
that service had been effected, since notice does not confer personal
jurisdiction on a defendant when it has not been served in accordance with Rule
4

DE GAZELLE GROUP, INC., a Florida Corporation,
Plaintiff-Appellee, v. TAMAZ TRADING ESTABLISHMENT, a Saudi Arabian Company,
Defendant-Appellant. 11th Circuit. Case No. 15-13543. Non-Argument Calendar.
March 30, 2016. Appeal from the U.S. District Court for the Middle District of
Florida (No. 6:13-cv-01430-GAP-TBS).

(Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.)

(MARCUS, Circuit Judge.) Tamaz Trading Establishment
(“Tamaz”), a Saudi Arabian company, appeals the district court’s denial of its
Fed. R. Civ. P. 60(b)(4) motion to vacate a $2,500,000 default judgment against
it as void for lack of service of process. The district court granted the
default judgment in favor of De Gazelle Group, Inc. (“De Gazelle”), a Florida
corporation, on De Gazelle’s breach-of-contract claim against Tamaz. On appeal,
Tamaz argues that the district court erred in concluding that De Gazelle had
properly served it using Federal Express (“FedEx”), when that means of service
is not specifically authorized by Federal Rule of Civil Procedure 4 and De
Gazelle had not received prior court authorization to serve Tamaz using that
method. After careful review, we reverse and remand.

Generally, we review the denial of a Rule 60(b) motion to
vacate a default judgment under the deferential abuse-of-discretion standard. Louis
Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir.
2013) [24 Fla. L. Weekly Fed. C813a]. However, we review the denial of a Rule
60(b)(4) motion to vacate a default judgment as void for lack of service of
process de novo, because the district court’s failure to vacate a void
judgment is per se an abuse of discretion. See Architectural
Ingenieria Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329, 1337-38
(11th Cir. 2015) [25 Fla. L. Weekly Fed. C1268a]; Oldfield
v. Pueblo de Bahia Lora, S.A., 558 F.3d 1210, 1217-18 (11th Cir. 2009)
[21 Fla. L. Weekly Fed. C1535a].

The Supreme Court has said this about the service-of-process
requirement:

Before a federal court may exercise
personal jurisdiction over a defendant, the procedural requirement of service
of summons must be satisfied. Service of summons is the procedure by which a
court having venue and jurisdiction of the subject matter of the suit asserts
jurisdiction over the person of the party served. Thus, before a court may
exercise personal jurisdiction over a defendant, there must be more than notice
to the defendant and a constitutionally sufficient relationship between the
defendant and the forum. There must also be a basis for the defendant’s
amenability to service of summons. Absent consent, this means there must be
authorization for service of summons on the defendant.

Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd.,
484 U.S. 97, 104 (1987) (quotation, citation, and alteration omitted), superseded
on other grounds by Fed. R. Civ. P. 4(k)(2) (1993). As such, “an individual
or entity is not obliged to engage in litigation unless officially notified of
the action . . . under a court’s authority, by formal process.” Prewitt
Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916,
925 (11th Cir. 2003) [17 Fla. L. Weekly Fed. C125a] (quotation and alteration
omitted).

Pursuant to Fed. R. Civ. P. 4(h), corporations may be served
outside the United States “in any manner prescribed by Rule 4(f) for serving an
individual, except personal delivery under (f)(2)(C)(i).” Fed. R. Civ. P.
4(h)(2). The methods prescribed in Rule 4(f) for serving an individual outside
the United States include:

(1) by any internationally agreed
means of service that is reasonably calculated to give notice, such as those
authorized by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents;

(2) if there is no internationally
agreed means, or if an international agreement allows but does not specify
other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign
country’s law for service in that country in an action in its courts of general
jurisdiction;

(B) as the foreign authority directs
in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign
country’s law, by:

. . .

(ii) using any form of mail that the
clerk addresses and sends to the individual and that requires a signed receipt;
or

(3) by other means not prohibited by
international agreement, as the court orders.

Fed. R. Civ. P. 4(f).

In this case, De Gazelle sent its summons and complaint via
Federal Express to Tamaz’s post office box in Saudi Arabia, care of the
company’s registered agent, Faisal Mubarak Althawadi. FedEx delivered the
package on Saturday, September 21, 2013. When Tamaz did not respond to the
complaint within 21 days, De Gazelle moved for a clerk’s default. A magistrate
judge denied the motion, on the grounds that (1) De Gazelle had provided no
authority for service via Federal Express, (2) the summons was delivered to an
unidentified “Receptionist/Front Desk” at a post office box, and (3) service
occurred on a Saturday, which was a weekend day in Saudi Arabia.

Subsequently, De Gazelle moved to extend the time for
service and moved for authorization, under Fed. R. Civ. P. 4(f)(3), to serve
Tamaz via FedEx. In support, De Gazelle submitted a print-out of an online
inquiry, which was sent by “Faisal” to a professional services referral
website, Scorpion Design, and which, coincidentally, was forwarded to De
Gazelle’s counsel. The inquiry stated (in broken English): “I have lawsuit
against[ ] me from company in Florida they would like you to find[ ] out that
and raise lawsuit against them compensation for damage please let me know and
the details of fees.” De Gazelle’s counsel responded to the email, informing
“Faisal” that because his firm represented De Gazelle he had a direct conflict
of interest and could not represent Tamaz. Counsel also noted that De Gazelle
had “filed suit, and [was] in the process of procuring a default final judgment
against [Tamaz] in the federal courts of the United States.”

Based on this evidence, the magistrate judge found that
Tamaz was aware of De Gazelle’s lawsuit and had not been prejudiced by “any
irregularities” in the method of process used by De Gazelle. The magistrate
judge then granted De Gazelle’s motion to serve Tamaz via Federal Express and
found that service had been retroactively effected on September 21, 2013. The
district court later entered a final default judgment against Tamaz.

After De Gazelle took steps to enforce the default judgment
through the Saudi Arabian courts, Tamaz moved to vacate the default judgment on
several grounds, including that the judgement was void for lack of service of
process. The magistrate judge recommended that the district court deny the
motion, noting his earlier determination that “good service was effected on
Defendant and that [the court] had jurisdiction to enter judgment in this
case.” The district court adopted the magistrate judge’s recommendation and denied
Tamaz’s motion.

On appeal, Tamaz argues that the district court erred in
concluding that De Gazelle effected good service on September 21, 2013, because
De Gazelle failed to comply with Fed. R. Civ. P. 4(f)(3) by seeking prior court
authorization for service via FedEx.1
We agree. As the Supreme Court has explained, “before a court may exercise
personal jurisdiction over a defendant . . . there must be authorization for
service of summons on the defendant.” Omni Capital, 484 U.S. at 104. If
a party cannot, or chooses not to, serve a defendant abroad using one of the
methods specified in Rule 4(f)(1) and (2), the party may accomplish service “by
other means not prohibited by international agreement, as the court orders.”Fed.
R. Civ. P. 4(f)(3) (emphasis added).

When De Gazelle FedExed the summons and complaint to Tamaz’s
post office box on September 21, 2013, it was not acting pursuant to a court
order. In fact, De Gazelle did not seek court authorization to serve Tamaz via
Federal Express until the magistrate judge denied its first motion for a
default judgment on the ground that De Gazelle failed to show that service via FedEx
was authorized under Rule 4. The magistrate judge’s reliance, in later finding
that service had been effected on September 21, 2013, on evidence showing that
Althawadi, Tamaz’s registered agent, had actual notice of the lawsuit was
misplaced, since notice does not confer personal jurisdiction on a defendant
when it has not been served in accordance with Rule 4. See Omni Capital,
484 U.S. at 104 (“[B]efore a court may exercise personal jurisdiction over a
defendant, there must be more than notice to the defendant . . . . There also
must be . . . authorization for service of summons on the defendant.”); Prewitt,
353 F.3d at 925 (“[E]ven though OPEC had actual notice of the filing of the
suit, service of process was ineffective because it was clearly not in
substantial compliance with the requirements of Fed. R. Civ. P.
4(f)(2)(C)(ii).”); see also Brockmeyer v. May, 383 F.3d 798, 806 (9th
Cir. 2004) (holding that, under Rule 4(f)(3), plaintiffs “must obtain prior
court approval for the alternative method of serving process”) (emphasis
added).

Accordingly, the district court erred in concluding that
Tamaz had been properly served on September 21, 2013. We reverse the order
denying Tamaz’s motion to vacate the default judgment as void for lack of
service of process, and remand the case for further proceedings consistent with
this opinion.2

REVERSED AND REMANDED.

__________________

1In its responsive brief, De Gazelle
contends that Tamaz has waived this argument because Tamaz did not specifically
argue in the district court that prior court approval was required. Our review
of the record, however, shows that Tamaz indeed argued that De Gazelle’s
attempt at service on September 21, 2013, did not comply with the requirements
of Fed. R. Civ. P. 4(f)(3). Even to the extent the argument at issue here was
not preserved, we would exercise our discretion to review it, because whether
Rule 4(f)(3) requires prior court authorization is a pure question of law, and
our failure to address Tamaz’s argument here would result in a miscarriage of
justice, namely, the enforcement of a $2,500,000 default judgment against it,
where it was never served in compliance with Rule 4. See Dean Witter
Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360-61 (11th Cir. 1984).

2In light of our disposition of the
case, we need not reach Tamaz’s alternative arguments on appeal.

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