Relational, LLC v. Robert A. Hodges

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3625
RELATIONAL, LLC,
Plaintiff-Appellee,
v.
ROBERT A. HODGES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-00415—David H. Coar, Judge.
ARGUED APRIL 7, 2010—DECIDED DECEMBER 8, 2010
Before WOOD, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. In 2005 Robert A. Hodges per-
sonally guaranteed $750,000 of debt that his company
Laminate Kingdom, LLC (“Laminate”) owed to Relational,
LLC (“Relational”). When Laminate went bankrupt in
2007, Relational sued Hodges on the guaranty, but by
then Hodges had sold his Florida home and returned
to his native United Kingdom without leaving any for-
warding information. Relational hired a private investiga-
tor to track him down. The private investigator located an

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2 No. 09-3625
Richard Hodges was never served. 1
address for Hodges in the U.K. and effectuated personal
service. To prove this, Relational submitted a return of
service and two affidavits signed by a British process
server who attested that she indeed served a man who
identified himself as Robert Hodges. The district court
accepted this showing and, when Hodges failed to
appear, entered a default judgment in favor of Rela-
tional. Relational then filed an action to enforce the
judgment in a U.K. court. The day before the hearing in
that action was scheduled to commence, Hodges
emerged from his shell and filed a motion in the district
court to vacate the default judgment. He argued that
he had not been served and that Relational’s evidence
was insufficient to prove otherwise. The district court
denied the motion. We affirm.
I. Background
Robert Hodges and his brother Richard were the propri-
etors of a 62-store hardwood-flooring business called
Laminate Kingdom, LLC, based in Miami, Florida. Rela-1
tional, LLC, is based in Rolling Meadows, Illinois, and
is in the business of equipment financing. On Septem-
ber 21, 2005, the Hodgeses entered into a contract with
Relational whereby they personally guaranteed up to
$750,000 of Laminate’s financial obligations. The personal
guaranty also specified that in the event of any legal
proceeding, service of process may be made upon Robert

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No. 09-3625 3
Throughout early 2007, the Hodgeses could not be located 2
by either the Florida court or their own bankruptcy counsel.
For this reason the Hodgeses’ counsel eventually withdrew.
Hodges “by registered or certified mail . . . at his primary
residential address . . . at 280 Arvida Parkway, Miami, FL
33156.”
In January 2007, Laminate entered bankruptcy in
the Southern District of Florida at the behest of its credi-
tors. Within a week Relational filed this suit in United
States District Court for the Northern District of Illinois
to enforce the personal guaranty. As specified in the
guaranty, Relational mailed the complaint, summons, and
attachments to Robert Hodges’s Florida address, but the
mail carriers found the residence vacant. Through its
contacts with Florida bankruptcy counsel, Relational
later learned that Hodges had sold his home in Florida
and returned to the U.K. without providing Laminate’s
trustee or creditors—including Relational—a forwarding
address or any contact information.2
Relational then hired Mark Nicholls and his British
investigation firm, Nicholls Investigation Services, to
locate Hodges in the U.K. Using a database of corporate
information maintained by the British government—
known as the Companies House—Nicholls discovered
that Hodges listed 20 Margaret Grove, Harborne, Birming-
ham, B17 9JH, as his U.K. residential address. On May 10,
2007, Nicholls’s process server Karen Johns delivered
the complaint, summons, and other documents to
20 Margaret Grove. Five days later, Johns signed a

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4 No. 09-3625
return of service and a certified affidavit stating under
oath that on May 10, 2007, at 4 p.m. she served a man at
20 Margaret Grove who identified himself as Robert
Hodges.
Several weeks later, Relational’s U.K. counsel began to
receive letters from two English solicitors writing on
behalf of Hodges’s grandmother and aunt. The solicitors
claimed that 20 Margaret Grove was the residence
of Hodges’s grandmother and that the court docu-
ments were either left on her doorstep or served upon
an unknown individual. They also said the family had
no knowledge of Robert Hodges’s whereabouts, had not
seen him for over two years, and was unable to forward
the documents to him. When Hodges failed to appear
in court, Relational orally recounted to the district
judge the details of this correspondence with the
English solicitors. Relational then moved for a default
judgment and sent a copy of the motion by mail to
Hodges’s business address, and by mail and courier to
20 Margaret Grove. Hodges again offered no response,
and on August 17, 2007, the district court entered a
default judgment against him in the amount of $750,000.
On November 6, 2007, Relational filed a statutory
demand in the U.K. seeking to enforce the default judg-
ment. Once again, Relational had difficulty with service;
Hodges persistently refused to accept personal service.
After much effort, Relational finally accomplished service
through Hodges’s solicitor. Hodges then delayed the
U.K. proceeding for nearly a year by seeking a number
of extensions; the U.K. court eventually set October 31,

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No. 09-3625 5
2008, as the hearing date on Relational’s enforcement
action. On the day before that hearing was to com-
mence, Hodges filed a motion in the Northern District
of Illinois seeking to vacate the default judgment under
Federal Rule of Civil Procedure 60(b)(4). He claimed
he was never properly served and the judgment was
therefore void.
On February 2, 2009, the district court held an eviden-
tiary hearing on Hodges’s motion. Prior to the hearing,
Relational moved to allow Johns, the U.K. process server,
to testify telephonically. Hodges objected and the court
sustained the objection, thinking it would be better for
Johns to testify in person. But Johns was unable to
make the trip to the United States, so in lieu of live testi-
mony, Relational secured an additional affidavit from
her. This second affidavit was substantially similar to
the first, except in two respects. The supplemental
affidavit included a physical description of Mr. Hodges
that had not been included in the original affidavit. But
the second affidavit was not certified by an administrator
of oaths.
Hodges offered his version of events at the evidentiary
hearing. He claimed he was never served and did not
live in his grandmother’s home at 20 Margaret Grove.
Rather, he testified that he lived 16 miles away and had
not visited his grandmother for nearly two years.
Hodges explained that on May 20, 2007—the day Rela-
tional said he was served—he was at a local pub called
the Punch Bowl, and he produced a credit-card state-
ment showing he had spent £71 there on the day in ques-

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6 No. 09-3625
tion. To buttress his testimony, Hodges presented the
letters from the English solicitors that had been sent to
Relational’s U.K. counsel indicating that Hodges did not
live at 20 Margaret Grove. He also submitted an affidavit
from his grandmother attesting that she found a large
envelope of documents at her doorstep on May 10, 2007.
On cross-examination Hodges admitted that he re-
located to the U.K. without leaving his creditors a for-
warding address. He further acknowledged that he
had signed the document on file with the Companies
House listing 20 Margaret Grove as his residence,
although he claimed that when he signed it, the docu-
ment was blank and someone else filled in the section
asking for his residential information.
At the conclusion of the hearing, Relational submitted
the supplemental affidavit signed by Johns. Hodges
moved to strike the affidavit as an insufficient substitute
for Johns’s live testimony, but the court denied the
motion. The court denied the motion to vacate, and
Hodges moved for reconsideration claiming the af-
fidavit was legally defective. The court summarily
denied the motion, and Hodges appealed.
II. Discussion
We review the district court’s entry of default judg-
ment, as well as its denial of the Rule 60(b)(4) motion,
for abuse of discretion. Homer v. Jones-Bey, 415 F.3d 748,
753 (7th Cir. 2005). However, if the district court lacked
personal jurisdiction over the defendant at the time it
entered the default judgment, the judgment is void, and

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No. 09-3625 7
Under Rule 4(f)(1) service may be effectuated by an “interna- 3
tionally agreed means of service that is reasonably calculated
to give notice.” In the absence of an internationally agreed
means, or if an internationally agreed means allows but
does not specify other means, personal service may be
used, but only if permitted under the foreign country’s law.
See FED. R. CIV. P. 4(f)(2).
We can sidestep this legal question here because defenses 4
based on a lack of personal jurisdiction, such as legally defective
service, may be waived. See O’Brien v. R.J. O’Brien & Assocs.,
Inc., 998 F.2d 1394, 1399 (7th Cir. 1993).
it is a per se abuse of discretion to deny a motion to
vacate that judgment. Id.; Robinson Eng’g Co. Pension Plan
& Trust v. George, 223 F.3d 445, 448 (7th Cir. 2000).
Stated differently, a judgment is void as to any party
who was not adequately served. See Omni Capital Int’l, Ltd.
v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); Homer,
415 F.3d at 752; Robinson, 223 F.3d at 448.
In this appeal, Hodges does not argue that the method
of service employed by Johns—that is, personal ser-
vice—was legally insufficient. In other words, he
does not argue that Federal Rule of Civil Procedure
4(f)—outlining the allowable methods for serving indi-
viduals in foreign nations—proscribes personal service
as a means for serving individuals located within the
United Kingdom. See FED. R. CIV. P. 4(f). Hodges3
instead argues that he was not served at all. Thus, we
assume personal service is a legally acceptable mode
of service in these circumstances and focus our atten-4
tion on the factual question of whether Relational
proved that Hodges was served.

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8 No. 09-3625
Specifically, Hodges argues that the supplemental affidavit 5
should have been excluded for three reasons: (1) it was an
unsworn, uncertified affidavit that did not comply with the
rules set forth in 28 U.S.C. § 1746 for unsworn declarations;
(2) it was hearsay under Federal Rules of Evidence 801 and
802; and (3) that by submitting the affidavit, Relational circum-
vented the district court’s order requiring Johns to testify
at the hearing.
“A signed return of service constitutes prima facie
evidence of valid service which can be overcome only
by strong and convincing evidence.” O’Brien v. R.J.
O’Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)
(quotation marks omitted). Although Relational sub-
mitted a return of service and two affidavits to prove
service, Hodges nonetheless contends that Relational
failed to satisfy its prima facie burden because the sup-
plemental affidavit was, among other things, unsworn
and uncertified by an administrator of oaths. Ac-5
cordingly, Hodges claims that the district court was not
entitled to rely on the supplemental affidavit in making
its ruling. Relational asserts in response that Hodges
waived any argument attacking the sufficiency of the
supplemental affidavit because he first raised the argu-
ment in his motion for reconsideration, not when he
initially moved to strike the affidavit.
The parties spill a lot of ink addressing each other’s
contentions, but the dispute about the supplemental
affidavit is immaterial to the resolution of this appeal.
Even if the second affidavit was legally defective

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No. 09-3625 9
(because it was unsworn and uncertified), the return of
service and original affidavit Relational offered were
sufficient to discharge its prima facie burden. To make
a prima facie showing, the movant must simply produce
a return of service identifying the recipient and
noting when and where service occurred, thereby pro-
viding enough detail so the opposing party knows
what evidence he must rebut. See Homer, 415 F.3d at 754
(suggesting a bare-bones return of service lacking an
address or a receiving individual might be insufficient
to discharge the prima facie burden); cf. Robinson, 223
F.3d at 451-53 (holding that it was improper for the
court to grant a default judgment where the process
server stated in his affidavit that he served an uniden-
tified individual). Relational’s original return of service
and accompanying affidavit from Johns satisfied these
basic requirements; they attested that Johns served
an individual at 20 Margaret Grove on May 10, 2007, at
4 p.m. who identified himself as Robert Hodges. The
supplemental affidavit simply added a physical descrip-
tion of Hodges, and while this detail may have been
helpful, it was not required. See O’Brien, 998 F.2d at
1398. Hodges makes no argument that Johns’s original
affidavit suffered from the same legal defects that
afflict the supplemental affidavit.
Once Relational made this prima facie showing, the
burden shifted to Hodges to rebut, by strong and con-
vincing evidence, the presumption of service. Id. The
district court held that Hodges failed to clear this hurdle
because his testimony was unconvincing. For example,

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10 No. 09-3625
Hodges claimed that on the date and time that Johns
said she served him—4 p.m. on May 10, 2007—he was
actually at the Punch Bowl. To corroborate his testimony,
Hodges offered a credit-card statement showing a £71
Punch Bowl charge on that date. But the district court
noted that the credit-card statement did not specify the
time of that charge and thereby failed to eliminate the
possibility that Hodges was served at 4 p.m. on May 10.
The district court also observed that Hodges’s behavior
suggested that he was trying to avoid his obligations to
his creditors. When Laminate went bankrupt, Hodges
abandoned the bankruptcy proceedings in Florida,
failed to provide contact information to his creditors or
even his own counsel, and moved overseas. Moreover,
after Relational secured the default judgment and filed
a statutory demand in the U.K., Hodges attempted to
avoid that proceeding by dodging service and seeking
several delays of the hearing. The district court
also rejected Hodges’s claim that he was unaware
of the present suit, especially since he had listed
20 Margaret Grove in the Companies House as his
“usual residential address” and had family members
residing there.
These credibility determinations of the district court—to
which we defer—conclusively resolve the case against
Hodges, but he offers a series of last-ditch arguments to
avoid this result. He contends that the district court’s
rejection of Johns’s request to testify telephonically
amounted to an order that she appear in person; her
failure to appear, he argues, means that Relational

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No. 09-3625 11
Nicholls also testified at the hearing, but he could provide 6
little detail about the May 10 events because he was not
present when Hodges was served. The import of Nicholls’s
testimony was to provide some evidence of Johns’s character
and reputation for honesty. Specifically, he testified that he
had often worked with Johns and deemed her an honest person.
violated the court’s order. He argues as well that this
deprived him of the opportunity to cross-examine Johns.
Finally, he claims that the court should have credited his
testimony because he was the only principal witness to
testify in person.6
These claims suffer from a number of misapprehen-
sions about the applicable law. First, Hodges appears to
presuppose that the district court could compel Johns
to appear. This is simply not the case; foreign nationals
are beyond the court’s subpoena power. See 28 U.S.C.
§ 1783; United States v. Drogoul, 1 F.3d 1546, 1553 (11th
Cir. 1993). Thus, the court could not “order” Johns to
do anything. Second, the absence of cross-examination
does not render Johns’s affidavit unworthy of credence.
Hodges does not—and cannot—maintain that he has a
right of confrontation in the circumstances of this case.
Van Harken v. City of Chicago, 103 F.3d 1346, 1352 (7th
Cir. 1997) (no absolute right of confrontation in civil
cases, but confrontation is sometimes required to
ensure due process). It is true that Hodges was the
only principal witness to testify in person, but that
does not mean the district judge was required to give
his testimony more weight. Credibility is earned, and

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12 No. 09-3625
It is also worth reiterating that Johns was willing to testify 7
telephonically, but Hodges objected to this proposal and urged
the district court to disallow any telephonic testimony.
12-8-10
here, Hodges simply failed to persuade the court that
he was telling the truth.7
Accordingly, the district court was well within its
discretion to deny Hodges’s Rule 60(b)(4) motion to vacate
the default judgment. The district court’s judgment is
therefore AFFIRMED.

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