Durkan America, LLC v. Rain Trading, Inc., et al

Filing

Filed opinion of the court by Judge Hamilton. The district court's denial of defendants' Rule 60(b) motion is VACATED and the case is REMANDED for further proceedings consistent with this opinion. William J. Bauer, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6667723-1] [6667723] [14-3016]

Case: 14-3016

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3016
DURUKAN AMERICA, LLC,
Plaintiff-Appellee,
v.
RAIN TRADING, INC. and
YAVUZ BURAK CANBULAT,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-01322 — Samuel Der-Yeghiayan, Judge.

____________________
ARGUED APRIL 29, 2015 — DECIDED JUNE 3, 2015
____________________
Before BAUER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Durukan America, a
Texas candy company, sued Rain Trading, an Illinois wholesaler, and its president Yavuz Canbulat for breach of contract
and deceptive practices. To prove service, Durukan filed
with the court two affidavits from a process server. After a
month passed without an answer from the defendants, the
district court entered a default judgment for Durukan. Al-

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most a year later the defendants moved to vacate the default
judgment, submitting an affidavit and records to show that
they were never served. Without holding a hearing to address the dueling affidavits, the district court denied the motion to vacate. Because the district court should have held a
hearing to resolve the factual conflict in the affidavits, we
reverse and remand.
Durukan sued Rain Trading and Canbulat for, according
to the complaint, refusing to pay for about $86,000 worth of
candy and gum. Durukan filed an affidavit of service for
each defendant. The process server attested that he served
Canbulat “[b]y leaving a copy with the named party, Yavuz
Burak Canb[u]lat personally on April 2, 2013,” a Tuesday, at
4:05 p.m. at 3033 Malmo Drive in Arlington Heights, Illinois.
This is the corporation’s registered address. The corporation
was served, according to the second affidavit, “by leaving a
copy with Yavuz Burak Canbulat, Authorized Person” on the
same date and time and at the same location. The process
server identified the person he served as male, Caucasian,
and approximately 36 years old. The affidavits were signed
and notarized.
The defendants did not respond to the complaint. The
district court entered a default judgment in favor of
Durukan for $88,365.77. Two months later the court issued a
summons to garnish Canbulat’s wages. Durukan filed another affidavit of service in which the process server stated
that he served the summons on Rain Trading “by leaving a
copy with Adam Ozturk, Sales Department and Authorized
Person on July 25, 2013,” at 2:10 p.m. at the same Arlington
Heights address. The defendants did not respond to the garnishment summons.

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Ten months later the defendants moved to reopen the
case. They swore that they had learned of the suit only because an officer of the Cook County Sheriff’s Department
had just arrested Canbulat for failing to appear at a state
court proceeding to discover his assets. Eleven days after
that arrest, the defendants moved to set aside the default
judgment under Federal Rule of Civil Procedure 60(b)(4).
Canbulat attached to the motion a two-page affidavit stating
that Durukan’s affidavits of service were “false and erroneous” and that neither defendant “was served…at the time
and place therein stated [in the Affidavits of Service] or at
any time or place.” Canbulat continued: “After reviewing
both affidavits of the process server, I checked the records
and verified that at the said date and time, I was employed
with and working at Abbvie,” a company located 25 miles (a
half-hour drive) from the address identified in the affidavits
of service. Canbulat added: “My work hours did not permit
me to leave before 5:00 PM, as I was a salaried employee,
and in fact I did not leave before 5:00 PM CST on the day in
question.”
Desiring more information, the district court denied the
motion without prejudice. The defendants renewed their
motion and attached two documents to corroborate
Canbulat’s affidavit: (1) a description of Canbulat’s job at
Abbvie, including that he worked full-time, Monday
through Friday, from 8:00 a.m. to 5:00 p.m.; and (2) an e-mail
exchange with a supervisor regarding Canbulat’s request not
to work on April 11, 2013 (more than a week after the process server says he served Canbulat). The employer had
produced these documents in response to plaintiff Durukan’s subpoena seeking records of the days and hours
worked by Canbulat in the entire month of April 2013. There

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was no similar request for the day of the supposed service,
April 2nd. The defendants argued in their motion that this
evidence, combined with Canbulat’s affidavit, showed that it
would have been impossible to serve either defendant as
claimed because Canbulat was working at Abbvie on April 2,
2013, at 4:05 p.m. Because neither defendant was served, the
defendants continued, the district court lacked personal jurisdiction and the default judgment is void.
Without holding a hearing, the district court denied the
defendants’ renewed motion to vacate the default judgment.
The court discounted Canbulat’s affidavit as “self-serving.”
It then explained that the employment records do “not rebut
the evidence of proper service” because they “in no way reflect that on April 2, 2013 at 4:05 p.m. Canbulat was somewhere other than as reflected by the process server.”
In general we review the denial of a Rule 60(b) motion
for abuse of discretion, but the review is more searching
when personal jurisdiction or service of process is being
challenged for the first time. See Philos Techs., Inc. v. Philos &
D, Inc., 645 F.3d 851, 854 (7th Cir. 2011); Relational, LLC v.
Hodges, 627 F.3d 668, 671 (7th Cir. 2010); Homer v. Jones-Bey,
415 F.3d 748, 753 (7th Cir. 2005). “[I]f the district court lacked
personal jurisdiction over the defendant at the time it entered the default judgment, the judgment is void, and it is a
per se abuse of discretion to deny a motion to vacate that
judgment.” Relational, 627 F.3d at 671 (citations omitted);
see Philos, 645 F.3d at 855; State St. Bank v. Inversiones
Errazuriz, 374 F.3d 158, 178 (2d Cir. 2004).
A process server’s affidavit identifying the recipient and
when and where service occurred is “prima facie evidence of
valid service which can be overcome only by strong and

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convincing evidence.” O’Brien v. R.J. O’Brien & Assocs. Inc.,
998 F.2d 1394, 1398 (7th Cir. 1993) (internal quotation marks
and citations omitted); Relational, 627 F.3d at 672; Homer, 415
F.3d at 752. The affidavits of service that named the recipient
as Mr. Canbulat and placed service on April 2, 2013, at 4:05
p.m. at Rain Trading’s registered place of business established a prima facie showing. But Durukan is wrong when it
asserts on appeal that its prima facie showing entitled it to
have any dispute with its affidavits resolved in favor of jurisdiction. The affidavit of the party asserting personal jurisdiction is presumed true only until it is disputed. Once disputed, the party asserting personal jurisdiction—in this case
Durukan—must prove what it has alleged. Hyatt Int’l Corp.
v. Coco, 302 F.3d 707, 713 (7th Cir. 2002); see Philos, 645 F.3d at
859.
The defendants have presented sufficient evidence to
dispute the presumption of service. Canbulat’s employment
records show that he was supposed to be working at another
location at the time of service and his affidavit asserts that he
was working there at that time. This combined evidence of
the employment records showing Canbulat’s expected presence at a distant worksite and his sworn assertion that he
was actually at that site is more than sufficient to contradict
the affidavits of service and require a hearing to resolve the
factual dispute. See Homer, 415 F.3d at 750–51, 757 (conflicts
between defendant’s and process server’s declarations presented question of fact); Robinson Eng’g Co. Pension Plan &
Trust v. George, 223 F.3d 445, 448, 452 (7th Cir. 2000) (conflicts
between defendant’s and service recipient’s affidavits presented factual dispute requiring factual hearing on service of
process).

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To resolve the dispute between the conflicting evidence,
the district court needed to hold an evidentiary hearing. It
erred by ruling that it could just disregard Canbulat’s affidavit. The court discounted the affidavit on the ground that it
was “self-serving,” even though it was based on the affiant’s
own knowledge. In the summary judgment context, “we
long ago buried—or at least tried to bury—the misconception that uncorroborated testimony from the non-movant
cannot prevent summary judgment because it is ‘selfserving.’” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th
Cir. 2010), quoted in Navejar v. Iyiola, 718 F.3d 692, 697–98
(7th Cir. 2013) (reversing summary judgment based on error
discounting party’s affidavit as “self-serving”); accord, e.g.,
Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir. 2013) (expressly overruling contrary holdings); Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631–32 (7th Cir. 2009); Kaba v.
Stepp, 458 F.3d 678, 681 (7th Cir. 2006).
Canbulat’s affidavit is self-serving but it flatly contradicts
the process servicer’s affidavit with specific first-hand observations. He not only denied service but even explained
where he was at the time of service and how he remembers
so precisely. The disputed factual issues could not be resolved without an evidentiary hearing: “a determination of
credibility cannot be made on the basis of an affidavit. That
is, a judge cannot take two affidavits which swear to opposite things and say, ‘I find one of the affidavits more credible
than the other, and therefore I shall accept it as true.’” Castillo v. United States, 34 F.3d 443, 446 (7th Cir. 1994); see Franco v. United States, 762 F.3d 761, 764–65 (8th Cir. 2014) (district court abused its discretion by determining that one affidavit was more credible than another without evidentiary
hearing); Bischoff v. Osceola County, 222 F.3d 874, 882 (11th

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Cir. 2000) (district court erred by judging witness credibility
without holding evidentiary hearing). This general principle
applies to evidentiary disputes like this one about service of
process. See Homer, 415 F.3d at 751, 757 (evidentiary hearing
was necessary where litigants filed dueling affidavits regarding service of process); George, 223 F.3d at 453 (same); Old
Republic Ins. v. Pacific Fin. Servs., 301 F.3d 54, 57 (2d Cir. 2002)
(“A defendant’s sworn denial of receipt of service, however,
rebuts the presumption of proper service established by the
process server’s affidavit and necessitates an evidentiary
hearing.”). Only a live hearing can resolve this factual dispute.
The district court’s denial of defendants’ Rule 60(b) motion is VACATED and the case is REMANDED for further
proceedings consistent with this opinion.