ORDER

AND NOW, this 7th day of August, 2003, upon consideration of defendant Joseph Luongo's Motion and Supplemental Motion to Strike Default Judgment, and the plaintiffs' response thereto it is ORDERED and DECREED that the Motion to Strike is DENIED. This Court's Order of September 27, 2001 granting Default Judgment to the plaintiffs stands.

MEMORANDUM

ROBERT F. KELLY, Sr. J., United States District Judge.

Presently before the court is the Motion of Defendant Joseph Luongo to Strike the Default Judgment.

Introduction:

The Complaint in the above-captioned case was filed on March 5, 2001. On July 5, 2001 an affidavit was filed by M. Frances Cooper indicating service of the Complaint and Summons on the defendant Joseph Luongo by personal service on June 23, 2001.

On August 20, 2001, plaintiffs moved for a Default Judgment against the defendants, including Joseph Luongo, for failure to appear or answer. The Default Judgment was entered against the defendants on September 27, 2001.

On June 3, 2003, the present Motion to Strike the Default Judgment was filed on behalf of defendant Joseph Luongo. On June 18, 2003, a Supplement to the Motion to Strike was filed by the defendant. By Stipulation of the parties approved by the Court the time to file a response to that Motion was extended to July 18, 2003. On that date responses were filed by plaintiffs to the Motion to Strike and to a Supplemental Motion to Strike.

On July 30, 2003, the Court scheduled a hearing on the pending Motion and its Supplement. At that time no testimony was taken and the parties agreed that the Court could decide the Motions based on the affidavits filed and the other exhibits attached to the Motions and responses.

From those documents the Court makes the following Findings of Fact:

1. On July 5, 2001, a return of service was filed by a process server in Arizona indicating that personal service was made on Joseph Luongo on June 23, 2003, at 7:30 A.M. at his residence at 4285 Pinto Road, Kingman, AZ. (Cooper Aff.).

2. For several days Cooper attempted to make service on Joseph Luongo at his place of business which was 3396 N. Bank Street, Kingman, AZ 86401. Id.

3. Ms. Cooper determined that 3396 N. Bank Street was Joseph Luongo's place of business, that the front door was always kept locked, that a bell had to be rung in order to get a response and that there is a "peek hole" in the front door. Id.

4. On June 11, 2001, at 4:30 P.M. Cooper went to that address for the first time and was informed by a man that Joseph Luongo was not there. She learned that Joseph Luongo drives a dark blue Ford Expedition, AZ license CB33164. The automobile was at the office, in the parking lot, when Cooper visited. Id.

5. On June 20, 2001, at 2:30 P.M. she went to the office address again, heard voices inside and knocked on the door. The talking and laughter stopped but she could not get anyone to come to the door. At that time the dark blue Ford Expedition was in the parking area. Id.

6. Ms. Cooper established a residential address for Joseph Luongo at 4285 Pinto Road, Kingman, AZ. On Saturday, June 23, 2001, she went to that address at 7:30 A.M. A man came to the door who fit the description given her for Joseph Luongo, i.e. 40-50 years of age, 5'10", approximately 175 lbs., slender build, dark hair and no facial hair. As she was walking away from the house a man came to the door and asked her who she was. When she gave her name and asked "are you Joseph Luongo?" the man slammed the door in her face. She put the papers on the mat at the front door and hollered "you have been served," and walked away. Id.

7. Sometime after July 23, 2001, Salvatore Gambone, one of the plaintiffs in this case, received a telephone call from Joseph Luongo stating that he had received a copy of the Complaint and wanted to know if he could resolve this matter. He stated that he was trying to sell the business and that it might impede the sale of the business, having the lawsuit pending. (Aff. of Salvatore Gambone)

8. Not long after service of the Complaint James J. Oliver, Esquire, attorney for the plaintiff spoke with Joseph Luongo, one of the defendants. Mr. Luongo advised Mr. Oliver that he had just received a copy of the Complaint and wanted Mr. Oliver and his client to withdraw the matter. (Aff. James J. Oliver, Esq.)

9. The testimony of Michael Timothy Orth given in a proceeding that took place in the United States District Court for the Eastern District of Virginia in a criminal case captioned U.S. v. Joseph Luongo, Criminal No. 02-7-A demonstrates both that Joseph Luongo was aware of the present lawsuit and that he was trying to evade service of the Complaint. See Exhibit A to Plaintiff's Response to Defendant Joseph Luongo's Motion. Orth testified that in 1998-99 he was Corporate Secretary and also Secretary/Director of Lite-Rock Drywall Corp. Id. at 12-14.

10. Joseph Luongo assigned Orth to handle this lawsuit. Id. at 15. When Orth would send information about the lawsuit to Luongo, Certified Mail Return Receipt Requested, they would come back undelivered. Id. at 20-22. When Orth faxed information about the lawsuit to Luongo he received a fax in return telling him not to fax anything "my fax machine ran out of ink." Id. at 19.

11. Orth testified that he had numerous conversations about this lawsuit with Joseph Luongo and that Luongo knew about the lawsuit. Id. at 23.

12. Joseph Luongo told Mr. Bachman and Mr. Orth that they were not authorized to accept service of process of a Complaint against Joseph Luongo personally. Id. at 27-28.

13. After consulting with his attorney Mr. Orth resigned. Id. at 23.

14. The two letters of Robert A. Cameron dated June 25, 2001 and July 9, 2001 are so unworthy of belief that their use by Joseph Luongo in his attempt to strike the present Judgment confirms his knowledge of the existence of this lawsuit and his attempts to evade service of process.

Conclusions of Law:

1. Joseph Luongo was properly served with the Complaint and Summons on June 23, 2001 at his residence, 4285 Pinto Road, Kingman, AZ.

2. The Default Judgment was properly entered against him when he failed to respond to the Complaint.

3. Any objection that defendant Joseph Luongo had to personal jurisdiction was waived by his failure to raise it within the 20 day period following service of the Complaint.

Discussion:

Once sufficiency of service of process is challenged the party on whose behalf service was made bears the burden of establishing the validity of service. Bolivar v. Director of the FBI, 846 F. Supp. 163, 166 (D.P.R. 1994), affd. 45 F.3d 423 (1st Cir. 1995). It is clear to the Court from the Affidavit of the process server Ms. Cooper that Joseph Luongo was trying to avoid service of the Complaint and Summons. The first time that Ms. Cooper went to the business address she was told by an unidentified man that he was not there. She noted that the door to the business address was kept locked, that there was a "peek hole" in the door and she could not get anyone to come to the door even though she heard voices inside and noted the presence of Joseph Luongo's automobile in the parking lot.

That testimony together with the testimony of Mr. Orth in the Virginia proceedings, that he and Mr. Bachman were told that they were not authorized to accept service of the Complaint for Joseph Luongo leads to the conclusion that Luongo was avoiding service of the Complaint.

I find that the individual who came to the door of 4285 Pinto Road, the residence of Joseph Luongo, at 7:30 A.M. on June 23, 2001, was in fact Joseph Luongo. He matched the description given to the process server and slammed the door in her face when she asked him if in fact he was Joseph Luongo.

I find further that leaving the papers on the doorstep after the door was slammed and announcing "you have been served" was sufficient personal service. The later phone calls with the plaintiff Salvatore Gambone and plaintiff's attorney James Oliver a short time after the papers were left at defendant's house also confirms that the person at the door was Joseph Luongo and that he in fact received the Complaint and Summons left there.

The two letters written by Robert A. Cameron dated June 25, 2001 addressed to James J. Oliver, Esquire and the letter of July 9, 2001 addressed to To Whom It May Concern deserve special mention. In the letter of June 25, 2001 Cameron refers to documents being dropped "at my door". In his letter of July 9, 2001 he very carefully avoids telling us what his status is in relation to 4285 Pinto Road.

In the letter of June 25th he instructs us that "Dropping documents at the door without verifying the identity of the resident or even that the resident is home does not constitute service." In their Affidavits both Sharida and Joseph Luongo admit that 4285 Pinto Road was their residence at the time in question.

Are we being asked by Cameron to believe that he was visiting at 4285 Pinto Road, walked out of the house, found legal documents on the doorstep, that he does not leave them there, does not tell the resident or residents of the house about them, but takes them to a lawyer for legal advice on his own behalf? He stresses at least twice in the June 25th letter that he can't find his name anywhere in the documents. Did it not occur to him that they were meant for the people whose name does appear on the documents and on whose doorstep they were found?

In the letter of July 9, 2001 he goes on to tell us "Furthermore I can attest that neither Misters Luongo, Bobst, nor Dubach have read or touched these papers that were delivered to me." These two letters were such an obvious attempt to convince us that Mr. Luongo never received them that they have the opposite effect.

The defendant submitted the Affidavit of Scott Landers stating that he is the landlord for 3396 North Banks Street, Kingman, AZ. He indicates in the Affidavit that there was no doorbell at that location at the time in question and that he had not seen a Ford Expedition at that location during the period in question. After considering all of the surrounding circumstances I am inclined to accept the Affidavit of Ms. Cooper with respect to the existence of a doorbell even though I do not find that to be a controlling factor. With respect to whether or not the Ford Expedition was seen at that location by Scott Landers, I cannot tell from his Affidavit how much time he spent near that property at the time in question so I find that statement to be of little value.

While personal service of process does not require "in hand" delivery, it should not become a game of wiles and tricks and a defendant should not be able to defeat service simply by refusing to accept the papers or by instructing others to reject service. Even though a defendant refuses physical acceptance of a summons, service is complete if a defendant is in close proximity to a process server under such circumstances that a reasonable person would be convinced that personal service of the summons is being attempted. Delivery of a summons to the person to be served who resists service may be accomplished by leaving it in his general vicinity, such as on the floor inside the residence near such person, informing him that the process server is so doing. A process server may leave the summons outside of the door of a structure, informing the defendant that he is so doing, where the defendant interposes the door between himself and the process server. Valid delivery of summons was made where the process server loudly stated through the door that defendant's representative had been legally served after such representative, upon being told that the server had legal papers for her, slammed the door and knocked the papers from the server's hand.

At least in cases where the defendant has attempted to evade service, service was found sufficient, despite a failure to manually deliver the process, where the marshal left the papers on the seat of the defendant's vehicle, pitched the papers through a hole in the screen door of the hiding defendant's apartment, or threw the documents over the defendant's fence after determining that the defendant resided at that address, photographed the papers on the defendant's lawn, and sent a copy of the papers to the defendant's address by first-class mail. 62B Am. Jur.2d Process § 204, Wright and Miller Federal Practice and Procedure Civil 3d § 1095.

In a case with facts very similar to this the late Judge Waldman of this Court held that the refusal of a defendant to open a door does not invalidate plaintiff's service. Personal service need not be face to face or hand to hand. Villanova v. Solow, 1998 WL 643686 (EDPA).

The defendant also argues that his due process rights under the 14th Amendment to the U.S. Constitution were violated because the Complaint does not allege sufficient contacts by him with the state of Pennsylvania to justify his being brought into the courts of this state to answer this lawsuit.

I have already found that the defendant was properly served with the Complaint and Summons on June 23, 2001. Once he was served, Luongo had 20 days to file an answer under Fed.R.Civ.P. 12(a)(1) or file a motion under Fed.R.Civ.P. 12(b)(2) alleging lack of jurisdiction over his person. He did neither. The following excerpt from Wright and Miller Federal Practice and Procedure: Civil 2d § 1391 is particularly appropriate to defendant's contention:

"Under Rule 12(h) the objection of insufficiency of service of process.. . and the objection of lack of jurisdiction over the person.., are waived if not asserted in a timely answer or motion. Neither of these objections is within the exceptions to waiver provided in Rules 12(h)(2) and 12(h)(3) [footnote omitted]. However, if a party is never served at all, he cannot be held to have waived his objection to lack of jurisdiction over the person by non-assertion within 20 days [footnote omitted]; due process would preclude the results and the rules themselves prevent it, by making the 20 day period run from the date of service. But when the party has received actual notice of the suit there is no due process problem in requiring him to object to the ineffective service within the period prescribed by Rule 12(h)(1) and the defense is one that he certainly can waive if wishes to do so [footnote omitted]. This is because the defendant has failed to do what the rule says he must do if he is to avoid a waiver. Furthermore, a more permissive construction would reduce the effectiveness of Rule 12(h)(1) sharply."

Defendant fails to make the distinction between objections to personal jurisdiction that raise constitutional issues, which could not be waived, and those that do not. I find that the defendant Joseph Luongo has waived any objection to in personam jurisdiction by failing to take any steps to challenge this lawsuit for a period of 21 months after the entry of Default Judgment.

It appears from documents attached as Exhibit A to plaintiffs' response to the present motion that Joseph Luongo was indicted criminally in the United States District Court for the Eastern District of Virginia. On May 24, 2002 he pled guilty to false statements and was sentenced. Plaintiffs contend that as a special condition of supervision Mr. Luongo was ordered to make an effort to settle all judgments against him in any court within the United States. Plaintiffs contend that the United States Attorney requested that Luongo be responsible specifically for satisfaction of the September 27, 2001 Default Judgment entered in this case and that it be made part of the sentence of the Court. Plaintiffs' attorney contends that this was granted. The defense vehemently denies that this request was granted. In any event it appears to this Court from reading the record that was supplied that at least that request is under consideration and is the motivating factor behind the defendant Joseph Luongo's sudden interest in obtaining relief from this Judgment after 21 months.

Courts have established guidelines that warrant consideration by the District Courts in determining whether a Default Judgment should be lifted. In ruling on a Motion to Strike a Default Judgment, District Courts should consider whether, (1) plaintiff will be prejudiced; (2) default was the result of defendant's culpable conduct; and (3) whether defendant has a meritorious defense. McKinnon v. Kwong Wah Restaurant, et al., 83 F.3d 498 (1st Cir. 1996).

I believe that the plaintiffs would be prejudiced in the event that the Default Judgment was lifted because it appears that the Lite-Rock Corp. has been dissolved since the entry of the Default Judgment. It would probably be difficult to obtain corporate records and other witnesses at this late date. Plaintiffs contend that they have attempted to collect this debt for the last two years and it is only now that there is the possibility of payment being ordered as a result of the case in the District Court in Virginia that defendants seek to open the Judgment.

I find that the Default Judgment that was entered in this matter was the direct result of the defendants culpable conduct in attempting to evade service on several occasions and inducing Robert A. Cameron to author two letters designed to confuse the issue as to whether or not service was actually made.

Because the defendant waited more than 21 months to file the pending Motion to Strike even though he had actual knowledge of the lawsuit and the Judgment, he has not acted in a timely manner.

I will therefore enter the following Order.