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National Development Co. v. Triad Holding Corp.

United States Court of Appeals for the Second Circuit · 1991 · Civil Procedure

Civil ProcedureService of ProcessPersonal JurisdictionRule 4Fed. R. Civ. P. 4(d)(1)dwelling houseusual place of abodesubstituted service

Facts

NDC served Khashoggi on December 22, 1986 by leaving the summons and complaint with Aurora DaSilva, a housekeeper of suitable age and discretion residing at Khashoggi's Olympic Tower apartment in New York. The evidence showed that Khashoggi was staying in that apartment from December 15 through December 23, 1986, and that he spent 34 days there during 1986. Khashoggi maintained numerous residences worldwide, including a compound in Riyadh, but spent only three months in Riyadh in 1986. The Olympic Tower apartment was a large, extensively remodeled, fully staffed residence that Khashoggi owned through wholly owned entities and had furnished to fit his lifestyle.

Issue

Whether service under Rule 4(d)(1) was valid when the summons and complaint were left with a suitable resident at Khashoggi's New York apartment, even though he claimed his true abode was in Saudi Arabia. More specifically, the question was whether the Olympic Tower apartment qualified as his 'dwelling house or usual place of abode.'

Rule

Under Rule 4(d)(1), a defendant may have two or more dwelling houses or usual places of abode for service of process, provided each contains sufficient indicia of permanence. Service is properly made at such a residence when the defendant is actually living there at the time service is effected.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lena Vorst, a Dutch art dealer, spends the year rotating among homes in Amsterdam, Miami, and Chicago. She owns a fully furnished condominium in Chicago, keeps two live-in staff members there, stores clothing and business files there, and was sleeping there for ten days when a process server left the summons with her adult live-in property manager.

If Lena moves to vacate a default judgment on the ground that her only proper abode for service is in Amsterdam because that is her domicile, how should the court rule under Rule 4?

Explanation. Rule 4 permits service by leaving process at the individual's dwelling house or usual place of abode with a suitable resident. The majority held that a defendant may have two or more such abodes, so long as each has sufficient indicia of permanence, and service is valid where the defendant is actually living at the residence when service is made. Domicile is not the controlling test.