Tomas Miko v. Vernon Jones

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10839
Non-Argument Calendar
____________________
TOMAS MIKO,
Plaintiff-Appellee,
versus
REPRESENTATIVE VERNON JONES,
in his individual and official capacities,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-02147-SDG
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2 Opinion of the Court 23-10839
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Before WILLIAM PRYOR , Chief Judge, and J ORDAN and B RANCH, Cir-
cuit Judges.
PER CURIAM:
Vernon Jones, a former Georgia state representative, ap-
peals the denial of his motion for relief from the default judgment,
Fed. R. Civ. P. 60(b)(4), entered in favor of Tomas Miko. Jones ar-
gues that the default judgment is void for lack of service of process.
We affirm.
We review the denial of a motion to vacate a default judg-
ment as void for lack of service of process de novo. De Gazelle Grp.,
Inc. v. Tamaz Trading Establishment, 817 F.3d 747, 748 (11th Cir.
2016). Whether the requirements of service of process were met
involves questions of law and fact, see In re Worldwide Web Sys., Inc.,
328 F.3d 1291, 1299 (11th Cir. 2003), and we review findings of fact
only for clear error, Mitchell v. Hillsborough Cnty., 468 F.3d 1276,
1282 (11th Cir. 2006). Personal delivery of a copy of the summons
and complaint is a valid method of service. Fed. R. Civ. P.
4(e)(2)(A); O.C.G.A. § 9-11-4(e).
The district court did not err in ruling that the default judg-
ment is not void. Abundant evidence established that Miko
properly served Jones, and that evidence supports the finding that
Jones’s story to the contrary—including that he was unaware of
this lawsuit for nearly three years despite it being publicized in the
news—was not credible.
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23-10839 Opinion of the Court 3
At the hearing on Jones’s motion, Miko’s attorney stated
that he sent emails to Jones’s official email address, but Jones said
he “didn’t even know that email existed.” Miko’s attorney stated
that he left a voicemail with Jones’s state capitol office, but Jones
said he did not recall receiving the message. Miko’s attorney and
the district court mailed several documents about the order of de-
fault and motion for default judgment to Jones at multiple ad-
dresses including his address in Lithonia, which was the home ad-
dress he provided to his political party, but Jones said that he could
not recall receiving any documents. Jones maintained that he
learned about the lawsuit on the day the district court entered the
default judgment when his friend texted him a news article about
it. Miko’s process server attempted to serve Jones twice—once at
Jones’s state capitol office when he was not there and once at his
Lithonia address, where a woman answered the door and denied
that Jones lived there even though the process server, who had
studied Jones’s image and voice, saw a man matching Jones’s de-
scription inside the home and a car with a “Vernon Jones for Sen-
ate” bumper sticker parked outside the home.
Convinced that Jones “clearly wasn’t intending to be
served,” Miko hired a private investigator with a military intelli-
gence background to serve Jones. The investigator attested that on
November 28, 2020, he followed a man matching Jones’s descrip-
tion from a home on Moreland Avenue, which Jones admitted he
owned, to a shopping plaza about 13 miles away. The investigator
greeted him, “Mr. Jones, how are you today, sir,” and heard the
individual respond in a voice that matched Jones’s voice. Jones
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4 Opinion of the Court 23-10839
accepted service but then denied that he was “Vernon” Jones. Jones
argued that he could not have been the “Mr. Jones” who traveled
from his Moreland Avenue house to the shopping plaza because he
flew that day from Fort Lauderdale to Atlanta and, after arriving
around 2:20 p.m., visited a restaurant in downtown Atlanta, where
his bank statement confirmed he spent about $30.
We cannot say the district court committed clear error. The
district court determined that, although Jones’s testimony about
the flight and restaurant was credible, there still were “lots of hours
in that day that [were] unaccounted for” by his explanation, so it
credited the declaration of the private investigator and the testi-
mony of Miko’s attorney. See United States v. Rodriguez, 398 F.3d
1291, 1296 (11th Cir. 2005) (“Where the factfinding resolves a
swearing match of witnesses, the resolution will almost never be
clear error.”). Because the record supports the finding that Jones
was properly served, Fed. R. Civ. P. 4(e); O.C.G.A. § 9-11-4(e), the
default judgment against him is not void, Fed. R. Civ. P. 60(b)(4).
We AFFIRM the denial of Jones’s motion for relief from the
default judgment.
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