Kutrubis v. Bowman (In re Kutrubis), 550 F. App'x 306

Background

Kutrubis filed Chapter 11 (converted to Chapter 7) bankruptcy; creditor Gloria Bowman filed an adversary complaint objecting to discharge and later filed a Second Amended Complaint adding a new §727(a)(6)(A) claim.
Bowman properly served the original complaint and summons; Kutrubis did not answer or appear and was treated as in default.
Bowman did not attach or issue a proper summons with the Second Amended Complaint required for adding a new claim against a defaulted party under Fed. R. Civ. P. 4 and 5.
Bankruptcy court entered default judgment denying Kutrubis’s discharge for disobeying court orders; Kutrubis moved to vacate under Rules 59(e) and 60(b)(1), arguing manifest error and excusable neglect, but did not raise lack of personal jurisdiction/service.
District court affirmed, holding Kutrubis waived any challenge to personal jurisdiction by failing to raise it in his motion to vacate; appellate court affirms that waiver and declines to excuse it.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the bankruptcy court’s default judgment void for lack of personal jurisdiction because Bowman failed to properly serve the Second Amended Complaint?	Bowman: service on original complaint sufficed initially; judgment proper.	Kutrubis: Second Amended Complaint added a new claim and required a summons; lack of service deprived court of personal jurisdiction.	Court: Service was deficient but Kutrubis waived the challenge by not raising it in his motion to vacate; appeal rejected.
Did Kutrubis waive the personal jurisdiction defense by failing to raise it at the first available opportunity (motion to vacate)?	—	Kutrubis: conceded omission but argued waiver should be excused because Bowman never made a prima facie showing of proper service.	Court: Waiver binds; failure to raise is forfeiture and Bowman’s evidentiary shortcomings are irrelevant when not litigated below.
Should appellate court exercise discretion to consider the jurisdictional defect raised for the first time on appeal?	—	Kutrubis: urged exercise of discretion given apparent service failure.	Court: Declines; permitting it would encourage strategic delay and defeat prompt assertion requirements.
Standard for when amended pleading against a defaulted party must be served with a summons	Bowman: had initial service; amendment practice acceptable.	Kutrubis: Rule 5(a)(2) and Rule 4 require summons when adding new claims against a defaulted party.	Court: Confirms Rules 4(c)(1) and 5(a)(2) require serving amended pleading with summons; Bowman failed to do so.

Key Cases Cited

Singleton v. Wulff, 428 U.S. 106 (1976) (appellate courts have discretion whether to consider issues not passed on below)
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) (personal-jurisdiction is an individual right that can be waived)
e360 Insight v. Spamhaus Project, 500 F.3d 594 (7th Cir. 2007) (failure to raise defenses in Rule 60(b) motion can waive them on appeal)
Swaim v. Moltan Co., 73 F.3d 711 (7th Cir. 1996) (in personam jurisdiction challenges to default judgments are forfeited if not asserted in Rule 60(b) motion)
O’Brien v. R.J. O’Brien & Assocs., Inc., 998 F.2d 1394 (7th Cir. 1993) (insufficiency of process objection waived if not raised in motion to vacate default)
Homer v. Jones-Bey, 415 F.3d 748 (7th Cir. 2005) (plaintiff’s burden to make a prima facie showing of service when jurisdiction is challenged)
In re Trans World Airlines, Inc., 145 F.3d 124 (3d Cir. 1998) (review of waiver determinations in bankruptcy appeals for abuse of discretion)
Rice v. Nova Biomedical Corp., 38 F.3d 909 (7th Cir. 1994) (policy against allowing defendants to delay pressing jurisdictional objections)
Peterson v. Islamic Rep. of Iran, 627 F.3d 1117 (9th Cir. 2010) (default status consequences in jurisdictional context)
Lessee of Walden v. Craig’s Heirs, 39 U.S. 147 (1840) (service of process is necessary for a court to exercise jurisdiction)