Petition for Writ of Certiorari — Alamo v. Miller

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In The

Supreme Court of the United States

October Term, 1992

TONY ALAMO,

Petitioner,

ROBERT A. MILLER; KODY MILLER by

ROBERT A. MILLER; ROBERT MILLER by

ROBERT A. MILLER; CAREY MILLER;

JEREMIAH JUSTIN MILLER, by

CAREY MILLER; RICK MILLER;

and JAMES MILLER,

Respondents

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

e =_

EDWIN VIEIRA, JR.

13877 Napa Drive

Manassas, Virginia 22111

(703) 791-6780

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225.6964

OR CALL COLLECT (402) 342-2831

a a

QUESTIONS PRESENTED FOR REVIEW

|. Is an individual deprived of due process of law

when a District Court and Court of Appeals deny him the

opportunity under Federal Rule of Civil Procedure

60(b)(4) to contest as void for want of jurisdiction as to

him the original ruling of the District Court and the

decision of the Court of Appeals in an earlier appeal that

he is the alter ego of certain corporations, where, although

the corporations appeared in the District Court and then

unsuccessfully appealed its finding of their supposed

alter-ego status, the individual himself never appeared,

appealed, or otherwise participated in the action until he

filed his Rule 60(b)(4) motion long after the first appeal?

I]. Is an individual deprived of due process of law

when a District Court and Court of Appeals refuse to set

aside under Federal Rule of Civil Procedure 60(b)(4) a

default judgment the District Court entered against him

under Federal Rule of Civil Procedure 55, notwithstand-

ing that the Court of Appeals in an earlier appeal had

held that the individual had in fact appeared in the

original action in the District Court through his supposed

alter-ego corporations? Or, in the alternative, is Federal

Rule of Civil Procedure 55 repugnant as applied to the

Due Process Clause of the Fifth Amendment to the Con-

Stitution of the United States, because it allowed the

District Court to enter, and the Court of Appeals to

affirm, a default judgment against the individual under

those circumstances?

Ill. Is an individual deprived of due process of law

when a District Court and Court of Appeals deny him the

opportunity under Federal Rule of Civil Procedure

QUESTIONS PRESENTED FOR REVIEW -—- Continued

60(b)(4) to show that he had not been properly served

with process by publication pursuant to Arkansas Rule of

Civil Procedure 4(f), on the grounds that corporations

supposedly his alter egos had appealed that issue earlier

in the case and the Court of Appeals had decided it

against them, and notwithstanding that the individual

himself had neither appeared nor participated in either

that appeal or the District Court proceedings leading up

to it?

IV. Is Arkansas Rule of Civil Procedure 4(f) repug-

nant as applied to the Due Process Clause of the Four-

teenth Amendment to the Constitution of the United

States, because it licenses service of process by publica-

tion on an individual even though the parties purporting

to serve him thereby made no significant attempt to effect

service by other, more effective means first?

V. May an individual’s personal property, seized

from him but not sold in the course of execution on a civil

judgment, be retained by the judgment-creditor without

any judicial scrutiny of the creditor’s right to possession?

PARTIES TO THE PROCEEDING

IN THE COURT OF APPEALS

The parties to the proceeding in the United States

Court of Appeals for the Eighth Circuit, the judgment of

which is here for review, include

1. petitioner Tony Alamo (“Alamo”), appellant. in

the Court of Appeals; and

2. respondents Robert A. Miller; Kody Miller, by

Robert A. Miller; Robert Miller, by Robert A. Miller;

Carey Miller; Jeremiah Justin Miller, by Carey Miller; Rick

Miller; and James Miller (“the Millers”), appellees in the

Court of Appeals.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW...........

PARTIES TO THE PROCEEDING IN THE COURT OF

Pg”. Speer pe eae ener roe Se Sere hp rere iii

Py Be Be oS. rns ere Vv

TA SIE PAUP I 6 io av cave ese ewenwsce cen vii

PS IO 6nd neh sas os kU OSES EE eee oe ak ee 1

ee CPE don 560s Ke nN dciccauecawueueneseeee 1

re TT rer rrr rere 2

CONSTITUTIONAL PROVISIONS AND RULES OF

Bs Og |: ner remy eee rire rere ee 2

EPA EEE ADP BOR GAs 5 5 cis chee cctey es aeakes 2

SSNS ciara 6-4 Rattan sales aeeera ec oicums ee 2

If The original proceedings in the District Court 3

Sn. RO SE Ss Sa wn Vans Sa SACU AROaN Noe aN eS 8

IV The post-trial, post-appeal motions and the sec-

PN I iw 60 os wes | inn ooo ee ee 10

ARGUMENT FOR ALLOWANCE OF THE WRIT... 12

I With respect to Alamo’s status as the alter ego

of the Corporations, Miller I is void as to

Alamo under Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100 (1969) .......... 15

I] Either Miller I’s ruling that Alamo had

appeared ir the District Court through the

alter-ego Corporations rendered the default

judgment void; or Federal Rule of Civil Pro-

cedure 55 is unconstitutional as applied ... 19

TABLE OF CONTENTS

Page

Ill With respect to purported service of process

on Alamo under Arkansas Rule of Civil Pro-

cedure 4(f), Miller I is void, because its state-

ments on that issue are only dicta.......... 23

IV If Arkansas Rule of Civil Procedure 4(f) sanc-

tions service of process by publication under the

facts of this case, it violates due process ..... 25

V_ The lower courts’ refusal to investigate the

ownership of Alamo’s personal and business

records deprived him of due process....... 28

COIN LUIROIN anc occ cicncs dsdanne eee eee eens 29

APPENDIX

Opinion in Miller v. Tony Alamo, No. 91-1447WA

& No. 92-2205WA (8th Cir, 19 November

Order in Miller v. Tony and Susan Alamo Founda-

tion, Civil No. 88-2206 (W.D. Ark., 12 Febru-

Order in Miller v. Tony and Susan Alamo Founda-

tion, Civil No. 88-2206 (W.D. Ark., 27 April

Miller v. Tony and Susan Alamo Foundation, 924

RAG 163 GO CU Fite icc ans ccseciecese resis lla

Pertinent Texts of Constitutional Provisions and

a” Ue: ee, ir yy ge 23a

Vii

TABLE OF AUTHORITIES

Page

Cases

Archawski v. Hanioti, 239 F.2d 806 (2d Cir. 1956) ... 20

Armstrong v. Manzo, 380 U.S. 545 (1965)............ 19

Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949)....19, 21

Bishop v. Committee on Professional Ethics and

Conduct of the Iowa State Bar Association, 686

Pe Gee eR EO on ck rs sna y cee saa sa ceks 25

Brookhart v. Janis, 384 U.S. 1 (1966) ................ 23

Carr Enterprises, Inc. v. United States, 698 F.2d

Sy NN EO Ue 6 oh Ne cae weak vad ee oe ea “a

Chicago Life Insurance Co. v. Cherry, 244 U.S. 25

SCE ANU ER Osha iss sap threes cris G caine see 13

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)... . 23

Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785

DA 6b 0064-06 ha hes. v lees ches cane Me hee 26

DiCesare-Engler Productions, Inc. v. Mainman

Li, oe rae. Foo (wu. Pa. 1979)..........-..-5. 27

Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617

Eee re oy ee 24

Escoe v. Zerbst, 295 U.S. 490 (1935)................ 21

Galpin v. Page, 85 U.S. (18 Wall.) 350 (1874) ..... 24, 26

Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573

I ee Pe oe ek bbws ... 26

Hazeltine Research, Inc. v. Zenith Radio Corp.,

Ee er 18

Hovey v. Elliott, 167 U.S. 409 (1897) .. 2, 14, 20, 21,

Se)

ile

Vill

TABLE OF AUTHORITIES —- Continued

Page

Insurance Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982)........... 18

Iron Arrow Honor Society v. Heckler, 464 U.S. 67

ES yeas errr rrr her re nae pwd eee 25

Johnson v. Zerbst, 304 U.S. 458 (1938)............... 23

Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18

A er ae ere Co Tr eee Tee TT ee eer eee 27

Mid-Continent Wood Products, Inc. v. Harris, 936

Fe 2. Ye | rrr reer 28

Miller v. Tony and Susan Alamo Foundation, 924

ee Be | eee ee Teerer er passim

Miller v. Tony and Susan Alamo Foundation, 748

oe ke | rere r eer errr ry 8

Mullane v. Central Hanover Bank & Trust Co., 339

Sich SE CEM she Ga SCALE CEL ERE REAR Wie RR STAs 26

New York v. New York, N.H. & H.R.R., 344 U:S.

BE CAE Ci sok sa MAR aera ek 26

Nikwei v. Ross School of Aviation, Inc., 822 F.2d

et £8 | ee errr rte re ey ree 27

In re Noell, 93 F.2d 5 (Sth Cir. 1937).......20.00000: 21

Parklane Hosiery Co., Inc. v. Shore, 439 F.2d 322

2, POPE ERE eRe ee te Mtr Rowe rer 18

Pennoyer v. Neff, 95 U.S. 714 (1678) ...........0-05- 26

Recreational Properties, Inc. v. Southwest Mort-

gage Service Corp., 804 F.2d 311 (5th Cir. 1986) .... 27

Schroeder v. City of New York, 371 U.S. 208 (1962) .... 26

TABLE OF AUTHORITIES - Continued

Page

Sims v. Prescott Feed Mills, Inc., 286 Ark. 22, 688

et ee os os Wb erence eh han se eues 24

Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482

1 | BPRS a ae er rs ny re er eager rape rahe Cera 24, 27

Societe Internationale v. Rogers, 357 U.S. 197

RG Pee oh ee al eRe tae errs ag 21

Tiedeman v. Chicago, M., St. P. & P.R.R. Co., 513

oe er ga 5 TR rca reer 25

Tileston v. Ullman, 318 U.S. 44 (1943)............... 24

United States v. Sommers, 351 F.2d 354 (10th Cir.

Nn oes RAR ENE ee SS Bin ses 8 RH 17

Walden v. Craig’s Heirs, 39 U.S. (14 Pet.) 147

CU. Gouwaee io en ea Sols Cian iee WN ey ceva ae ee dae. 18

Warner v. Godfrey, 186 U.S. 365 (1902).............. 22

Webster v. Reid, 52 U.S. (11 How.) 437 (1851)....... 17

Wetmore v. Karrick, 205 U.S. 141 (1907).......... 18, 22

Winhoven v. United States, 201 F.2d 174 (9th Cir.

CR ee ee ee ee eee ea er erates Oe ee aK 22

Zenith Radio Corp. v. Hazeltine Research, Inc.,

Be Re Be, ee eee passim

STATUTES AND CourRT RULES

United States Code

en Es oc cic ce bos eres ean we ce ene vs 2

ee ee yaw oceet occ he ede eo oe ey 21

Arkansas Rule of Civil Procedure 4(f)........... passim

TABLE OF AUTHORITIES - Continued

Page

Federal Rules of Civil Procedure

| PPUPUPTCTTTeTTTTOLiTTere re ree ee 3

NN Oi bac dnngstde0stekbacevecsests eee 2, 19, 23

SE SN sna. c ce ecacacaxenstaescaueemes ene 8, 19, 21

Pe HE voc ccucdadcckbiedicadsdaeseuweeane passim

ROR eT ET ee rer ee ee oe 10

NN GIN 0din's Scan kndcndtianeskeeT ee anetaee 12

Rules of the Supreme Court of the United States

PE DEE no taaceudcdcedecCaeuereeieeicuae cians 13

BN POPPER TOURETTE TIP ET! PUTO TT TTT TC eee Te Te 2

‘

In The

Supreme Court of the United States

October Term, 1992

TONY ALAMO,

Petitioner,

ROBERT A. MILLER; KODY MILLER by

ROBERT A. MILLER; ROBERT MILLER by

ROBERT A. MILLER; CAREY MILLER;

JEREMIAH JUSTIN MILLER, by

CAREY MILLER; RICK MILLER;

and JAMES MILLER,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

Pursuant to Part III of the Rules of this Court, Tony

Alamo petitions this Court to issue a writ of certiorari to

the United States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion the Court of Appeals issued in support

of its judgment (“Miller II”) is unreported, and appears in

the Appendix hereto (“Pet. App.”) at la. The orders of the

United States District Court for the Western District of

Arkansas of 12 February and 24 April 1992, which Miller

I] affirmed, are unreported, and appear in Pet. App. at 3a

and 9a, respectively. The earlier opinion of the Court of

Appeals (“Miller I”) is reported at 924 F.2d 143 (8th Cir.

1991), and appears in Pet. App. at Ila.

JURISDICTION

The Court of Appeals entered its judgment and opin-

ion in Miller I] on 19 November 1992. This petition is

therefore timely under this Court’s Rule 13.1.

This Court has jurisdiction to review the judgment of

the Court of Appeals under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

RULES OF COURT INVOLVED

This case involves application of the Due Process

Clauses of the Fifth and Fourteenth Amendments to the

Constitution of the United States to Federal Rules of Civil

Procedure (“FRCP”) 55 and 60(b)(4), and to Arkansas

Rule of Civil Procedure (“ARCP”) 4(f), pertinent parts of

which appear in Pet. App. at 23a.

STATEMENT OF THE CASE

I. Overview. The facts of this case frame five funda-

mentally important issues of due process:

¢ Notwithstanding Zenith Radio Corp. v.

Hazeltine Research, Inc.'1, may Alamo be held to

be the alter ego of two corporations when they,

but not he, appeared in the District Court and

then unsuccessfully appealed the District

Court’s finding of alter-ego status?

+ Notwithstanding Hovey v. Elliott?, may

Alamo have a default judgment entered against

him when the District Court found that the cor-

porations that did appear were his alter egos,

1 395 U.S. 100 (1969).

2 167 U.S. 409 (1897).

TEP USnnenenss eienneneainen int epetien pene

and when on the corporations’ appeal the Cir-

cuit Court not only affirmed that finding but

also ruled that Alamo had in fact appeared in

the District Court through them?

+ Notwithstanding Zenith Radio, on an

appeal by the supposedly alter-ego corporations

may Alamo be held to have been properly

served by publication, when he personally par-

ticipated in neither the District Court proceed-

ings that led to the finding of alter-ego status nor

the appeal?

¢ May Alamo be served by publication

when the Millers made no significant effort to

attempt to serve him by more effective means

first? And,

. May Alamo’s personal property, seized

but not sold in the course of execution of the

judgment the Millers obtained, be retained by

them without any judicial scrutiny of their right

to possession?

Il. The original proceedings in the District Court.

On 12 October 1988 the Millers filed a complaint in the

District Court against the Tony and Susan Alamo Founda-

tion (“the Foundation”), the Music Square Church, and

five individuals including Alamo.* On i6 November 1988

the Corporations answered, for themselves and purpor-

tedly on behalf of Alamo, denying liability and asking

that the complaint “be denied, dismissed, and held for

naught”.* Disregarding this answer as an appearance by

Alamo, on 14 February 1989 the Millers moved for a

continuance, alleging that

- the Foundation “filed an Answer’;

* Alamo will refer to the entities collectively as “the Corpo

rations”.

4 Appellant Tony Alamo’s Appendix (Eighth Circuit Rule

30A(B)(3)) in Miller v. Alamo, No. 92-1447 WAFS (8th Cir.), at 31

This document will be cited hereinafter as “Alamo’s Cir. Ct

App.”.

° “[sJervice copies of the Complaint on all

other defendants were subsequently returned to

[the Millers’] counsel and marked ‘Return to

Sender, Not at This Address’ ”;

. the Millers “have been unable to perfect

service of process against * * * Alamo”;

° the Millers “have served interrogatories

upon [the Corporations] in an attempt to locate

[Alamo]”; and

. “{ujpon receipt of the answers to [their]

Interrogatories, [the Millers] shall secure the ser-

vices of a private detective agency to locate and

serve [Alamo]”.°

The Millers made only this one attempt to serve Alamo at

“P.O Box 398, Alma, Arkansas” between 12 October 1988

and 14 February 1989. On 16 February 1989 United States

District Judge Morris S. Arnold allowed the Millers until

12 May 1989 to serve Alamo.® Later, however, in another

case Judge Arnold testified that

. “good cause” for an extension of time

under FRCP 4(j) must be established “through

testimony or sworn affidavit”;

° Id. at 35. The Millers filed this motion because FRCP 4(j)

would otherwise have required dismissal of the action as to

Alamo. Although the motion was silent as to the date of

attempted service on Alamo, on 21 June 1989 one of the Millers’

attorneys stated in an affidavit that

[o]n or about October 24, 1988, service of process

was attempted on all named defendants *** at the

following last known address: P.O. Box 398, Alma,

Arkansas, 72921. Service copies of all of the Com-

plaints, except that directed to the Foundation, were

returned *** marked “Return to Sender, Not at This

Address.”

Alamo’s Cir. Ct. App. at 68.

6 Miller v. Tony and Susan Alamo Fd’n, No. 88-2206 (W.D.

Ark.), Docket No. 5, in Alamo’s Cir. Ct. App. at 4.

. the Millers attached “[n]o affidavit” and

“nothing under penalty of perjury” to their

motion;

° the motion did not allege that Alamo was

evading service;

. the motion “doesn’t say” what the Millers

did to perfect service other than the one mailing

to Alma, Arkansas; and

° the Millers’ statement that “they have been

unable to perfect service of process” was just a

bald assertion.”

Dissatisfied with the Corporations’ answers to inter-

rogatories, on 2 May 1989 the Millers moved for and were

granted an additional 60 days to serve Alamo.®

Overlapping these events, on 27 March 1989 the Dis-

trict Court allowed the Foundation to “strik[e] the incor-

rect reference to Tony Alamo individually in [its]

previously filed Answer”.? The Corporations then

answered separately, denying all liability. This clarified

that the Corporations’ counsel did not represent Alamo.'”

On 21 June 1989 B.E. Holmes, one of the Millers’

attorneys, filed an affidavit in support of service under

ARCP 4(f), stating that

. sometime after 23 May 1989, the Millers’

counsel “received a copy of a pamphlet distrib-

uted by the Holy Alamo Christian Church and

Seminary which mentioned the instant suit in a

message from * * * Alamo” and listed “[t]he

address of the * * * Church * * * as 13136 Sierra

Highway, Canyon Country, California 91350”;

7 Alamo’s Cir. Ct. App. at 140-145.

8 Id. at 60, 64. The Foundation had answered that Alamo

was living in “some hotel in Los Angeles”, California. /d. at 54

This corroborated other information the Millers already had. See

post, note 13 & accompanying text.

* Alamo’s Cir. Ct. App. at 59.

10 As Miller I recognized, 924 F.2d at 147: “Appellants’ [i.c.,

the Corporations’] attorney does not represent Alamo.”

spec ipenidieeniatcenneaanence eminem

> on 6 June 1989 the Millers mailed the com-

plaint, summons, and returns of service to

Alamo at that address — but “[t]he Complaint

was returned to [Holmes] on June 19, 1989,

marked ‘Return to Sender. Not presently at this

sm,

address’ ”;

. “[djespite diligent inquiry, [Holmes] has

been unable to date to obtain information con-

cerning the whereabouts of the individual

defendants” — but Holmes described no “dili-

gent inquiry” other than receipt of the pamphlet

and mailing to the “Sierra Highway” address;

and

° “the defendants are evading service of pro-

cess” — but Holmes described no “evasfion]”,

explicitly conceding instead that, “[dJespite

indications that Mr. Alamo is operating out of

the Holy Alamo Church in California, a return

of ‘not presently at this address’ has been made.

Use of the word ‘presently’ implies that Mr.

Alamo has recently been there or will be return-

ing there, and that his whereabouts are known

to one or more individuals at the Holy Alamo

Church”.!}

In fact, the Millers knew much earlier that the Holy

Alamo Church was located in Saugus, California,!?

because (among other things) the allegedly tortious con-

duct that underlay their complaint took place there in

January of 1988.'%

1 Alamo’s Cir. Ct. App. at 70-71.

12 In the mid-1980s, Canyon Country changed its name to

Saugus.

13 See Complaint ¥ 31. See also, e.g., Transcript of the Trial of

27-28 November 1989, Miller v. Tony and Susan Alamo Fd’n, No.

88-2206 (W.D. Ark.), Vol. 1, at 25; Vol. 2, at 97-98, 114-15; Vol. 3,

at 13. Fora key example, Carey Miller described how, in January

of 1988, he had hired a private detective who located his son at

the church property. Transcript, Vol. 2, at 97-98.

On 9 August 1989 Holmes filed an affidavit of ser-

vice, stating that

. “(a] Warning Order {under ARCP 4(f)] was

published in [a local Arkansas newspaper] on

June 29, 1989 and July 6, 1989”; and

° “[a]lso, in accordance with [ARCP 4(f)], the

Warning Order, together with a copy of the

Complaint and Summons * * * , were served

upon each of the individual defendants at their

last known address by U.S. Mail restricted deliv-

ery, on June 26, 1989. Attempts for service were

made for each of these packages on June 28,

1989 and July 7, 1989, but the envelopes were

‘unclaimed,’ and were ultimately returned to

[Holmes] on July 14, 1989”.14

Holmes attached a letter of 6 June 1989 from her to the

Postmaster of the Alma Arkansas Branch, seeking “any

more recent addresses [than P.O. Box 398, Alma,

Arkansas 72921]|” for four individual defendants, but not

including Alamo. The Postmaster replied that “[w]e are

unable to provide up-dated addresses for these individ-

uals”.'° Holmes attached nothing that sought a “more

recent address” for Alamo from the Postmaster either in

Alma or in Saugus. Holmes also attached a copy of the

envelope and postal return-receipt addressed (but not

delivered) to Alamo at “P.O. Box 398, Alma, Arkansas

72921”, and marked “Unclaimed” and “postage due

$2.00”.'* But the Millers sent nothing to Alamo at the

Saugus address, respecting which Holmes had earlier

stated that “[u]se of the word ‘presently’ implies that Mr.

Alamo has recently been there or will be returning there”

On 9 August 1989 the Millers sought entry of, and on

17 August 1989 the Court Clerk entered, default against

Alamo for “hav[ing] failed to plead or otherwise

14 Alamo’s Cir. Ct. App. at 91.

15 Id. at 101-02.

16 Id. at 108.

defend”.'7 On 27 and 28 November 1989 the District

Court held a default hearing on the issue of damages

against Alamo. Neither the Corporations nor Alamo par-

ticipated.'!§

On 5 and 6 March 1990 the District Court held a

hearing on whether the Corporations were Alamo’s alter

egos. Alamo did not participate.'? On 19 April 1990 the

court found the Corporations to be Alamo’s alter egos, set

aside their corporate forms, dismissed them as parties to

the case, and ruled that any judgment thereafter entered

against Alamo would also lie against them.2° And on 27

April 1990 the court entered a huge money judgment

(later amended) against Alamo,?! which resulted in the

seizure of real and personal property. The court did not

consider whether, having held the Corporations to be

Alamo’s alter egos, and the Corporations having denied

all liability in the answers they filed prior to 9 August

1989, the entries of a default and a default judgment

against Alamo were improper.??

III. The first appeal. The Corporations appealed,

raising two issues relevant here: namely, that the District

Court (i) lacked in personam jurisdiction over Alamo, and

17 Id. at 110, 111.

18 See Transcript of the Trial of 27-28 November 1989, Miller

v. Tony and Susan Alamo Fd’n, No. 88-2206 (W.D. Ark.), cover

sheet (showing appearance by the Millers’ counsel only); Tran-

script of the Trial of 6-7 March 1990, No. 88-2206 (W.D. Ark.),

Vol. 1, at 44-45 (showing the Corporations not parties to the

default hearing).

| 19 See Transcript of the Trial of 6-7 March 1990, Miller v.

Tony and Susan Alamo Fd’n, No. 88-2206 (W.D. Ark.), Vol. 1, at 3.

20 See Miller I, 924 F.2d at 145-46.

21 See Miller v. Tony and Susan Alamo Fd’n, 748 F. Supp.

695 (W.D. Ark. 1990).

22 FRCP 55(a) permits entry of default only “[w]hen a party

against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend”.

I ereerneaen ennr ner ie ae nee

(ii) erred in finding the Corporations his alter egos. Alamo

did not appeal. “No action [was] taken regarding the

default, and no appeal [was] perfected therefrom”; “[n]o

appeal [was] perfected from th[e personal] judgment

[against Alamo]”; and the Corporations’ “attorney d[id]

not represent Alamo” .?3

The Circuit Court decided the appeal on 23 January

1991. As to personal jurisdiction, the court “noted in

passing” that

service on Alamo, a fugitive from justice whose

whereabouts are unknown, was strictly in accor-

dance with [ARCP] 4(f). The rule reads:

Where it appears by the affidavit of a party

or his attorney that, after diligent inquiry,

the identity or whereabouts of a defendant

remains unknown, service shall be by warn-

ing order * **.

The affidavit required by this Rule, which

recites in great detail the difficulty in locating

Alamo and efforts to serve him, was duly

filed. * * * The warning order was * * * duly

published.+4

The court adverted to no supposed “facts” other than

“[t}]he affidavit required by [ARCP 4(f)]” to show how the

Millers had engaged in “diligent inquiry”.

And on the alter-ego issue, the court said simply that

the Corporations

have appeared in this litigation. These entities

were found to be alter egos of Tony Alamo.

Thus, the entry of appearance by these entities

23 Miller I, 924 F.2d at 145, 147. See Alamo’s Cir. Ct. App. at

112 (notice of appeal in Miller 1).

24 924 F.2d at 147 (emphasis supplied). The phrase “noted

in passing” is peculiarly apt, because the passage addressing

ARCP 4(f) is clearly dicta in light of the court’s subsequent

treatment of the alter-ego question.

constituted an entry of appearance by Tony

Alamo.?5

The court did not, however, resolve the inconsistency

between its statements that “none of the individuals filed

an answer” and “the entry of appearance by [the Corpo

rations] constituted an entry of appearance by Tony

Alamo”.?6 Neither did the court explain how a default

judgment against Alamo was proper when “the entry of

appearance by [the Corporations] constituted an entry of

appearance by [him]” prior to the alleged default.

IV. The post-trial, post-appeal motions and the

second appeal. On 21 October and 12 November 1991,

respectively, Alamo moved the District Court under

FRCP 60(b)(4) and 65 to set aside the default judgment as

void for want of in personam jurisdiction, and for a pre

liminary injunction with respect to execution of the judg

ment the Millers had obtained.?7 Alamo also requested a

hearing, offering to prove that:

. from filing of the complaint on 12 October

1988 through the Clerk’s entry of default against

Alamo on 9 August 1988, the Millers had made

only one unsuccessful mailing each to Alma,

Arkansas, and Saugus, California;?*

2° 924 F.2d at 148.

26 Id. at 145, 148. The Corporations filed answers denying

all liability. Ante, page 5. If these answers were “appearances”

for Alamo perforce of the Corporations’ alter-ego status, then ex

necessitate Alamo filed an answer, too.

27 Alamo’s Cir. Ct. App. at 117, 179. The motion for prelimi-

nary injunction relied on the motion to set aside, as “[s]aid

motion propounds *** grounds requiring the setting aside of

the default entered against Alamo and the return of all property

seized pursuant to said default judgment”. /d. at 185.

26 24 October 1988 (sent back marked “Not at This Address

Return to Sender”) and 6 June 1989 (sent back marked “Return

to Sender Not presently at this Address”), respectively.

. the Millers had not requested the Postmas

ters in Alma or Saugus to provide forwarding

addresses for Alamo;2?

. the Millers had retained no private investi

gator or process server, or taken other action, to

locate Alamo in Arkansas, California, or any

where else; *”?

° for years, the Millers had known about the

church in Saugus, and were admittedly aware

on 19 June 1989 of “indications that Mr. Alamo

is operating out of” that facility and “has

recently been there or will be returning there”;*!

° from at least 26 October 1988 to late April

1989, Alamo was regularly and openly at the

church in Saugus;*

° on 3 April 1989, Alamo was personally

served with process in a pending California civil

case at 13136 Sierra Highway, Saugus, Califor

nia, which address the process server described

as Alamo’s “Home”;** and

° based on a check of official records in Cali

fornia, Alamo had no reason to believe he was a

“fugitive from justice” when he left that State

for Las Vegas, Nevada, in late April, 1989.“

*? As they had done for other individual defendants. See

ante, page 7.

” As they had promised to do in their motion for a continu

ance of 14 February 1989. See ante, page 4

! See ante, page 6 & note 13

- -

2 Alamo’s Cir. Ct. App. at 155-78, 207-20

3 Id. at 148-53, 204-06.

“ Id. at 154, 204-12. In opposition to Alamo’s motion, the

Millers conceded that their case “d[id] not rest on any allegation

that Mr. Alamo was actually aware that the authorities were

looking for him from October, 1988 through July, 1989”. [d. at

222. They also admitted that, “[w]hile evidence that investiga

tors for Los Angeles County could not locate Mr. Alamo

On 11 February 1992 the District Court denied both

of Alamo’s motions,

conclud[ing] that neither an evidentiary hearing

nor further argument is required. * * * [T]he

Eighth Circuit in [Miller I] has already decided

that the district court had personal jurisdiction

over Alamo pursuant to Arkansas Civil Pro-

cedure Rule 4(f) and that, in any case, the entry

of appearance of the corporate entities, which

have been found to be alter egos of Alamo,

constituted an entry of appearance by Alamo.*

On 18 February 1992 Alamo moved the District Court

under FRCP 69 for a determination of who owned certain

of Alamo’s and the Corporations’ personal and business

records of which the Millers were in possession as a

result of the execution of the judgment against Alamo.

Alamo contended that these records were rightfully his

and not the Millers’, and that he needed the records to

defend himself in other on-going civil and criminal litiga-

tion. The District Court denied the motion because Alamo

“failed to cite any legal authority for his request”.

On a consolidated appeal, tre Circuit Court affirmed,

saying only that “[t]he district court’s rulings are clearly

correct” .97

This petition followed.

ARGUMENT FOR ALLOWANCE OF THE WRIT

Miller II's affirmance of the District Court’s denial of

Alamo’s FRCP 60(b)(4) motion on the authority of Miller I

deprived Alamo of due process of law, because Miller I is

between October, 1988 and April, 1989 would tend to show that

Mr. Alamo was not so easy to find as he now lets on, the current

record does not show that to be a fact”. Id. at 223 (emphasis sup-

plied; footnote omitted).

35 Pet. App. at 6a.

% Id. at 10a.

37 Id. at 2a.

inapplicable or void as to him. Miller I can bind only

parties to that appeal and their privies, and only as to

matters adjudicated therein.*® But Alamo did not person-

ally appeal or appear in Miller 1.99 And the Corporations

did not appeal the default judgment.*° Thus, properly to

address Alamo’s FRCP 60(b)(4) motion, the District Court

and the Court of Appeals needed to decide, but instead

avoided even investigating, whether he was privy to Miller |

at all, and (if so) how its rulings affected him. That

inquiry would have exposed Miller I as a four-headed

judicial Frankenstein’s monster “that conflicts with appli-

cable decisions of this Court”4' and offends the first

principles of due process.

First, Miller I’s affirmance of the District Court’s find-

ing that the Corporations were Alamo’s alter egos4#? cannot

bind Alamo. For under Zenith Radio that finding - with-

out service on or appearance by him - binds only them.*°

Thus, Miller I’s extrapolation of the District Court's alter-

ego finding to Alamo is necessarily void as to him.

Second, as a product of the alter-ego theory, Miller I's

ruling that “the entry of appearance by the [Corpora-

tions] constituted an entry of appearance by Tony

Alamo”* also constitutes a void judgment under Zenith

Radio. Even worse, were this ruling correct its effect

would be to sanction a logically and legally impossible

38 “TA] court cannot conclude all persons interested by its

mere assertion of its own power.” Chicago Life Ins. Co. v.

Cherry, 244 U.S. 25, 29 (1917).

39 See Miller I, 924 F.2d at 146, 147.

40 Id. at 145, 147.

41 Rule 10.1(c) of the Rules of the Supreme Court of the

United States.

42 924 F.2d at 148.

43 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

100 (1969).

44 924 F.2d at 148.

“non-default default judgment” against Alamo, which

must be void for want of jurisdiction under Hovey*.

Third, Miller I stated that Alamo was served under

ARCP 4(f).4¢ If the Corporations had standing, indepen-

dent of their alter-ego status, to contest the issue, this

statement is a holding, but binds only them.47 If, con-

versely, they had standing only because of that supposed

status, Miller I's ruling that “the entry of appearance by

the [Corporations] constituted an entry of appearance by

Tony Alamo”* rendered its “ruling” on the ARCP 4(f)

issue moot and mere dicta. Moreover, even if not moot or

dicta, under Zenith Radio this “ruling” could bind only the

Corporations; and its extrapolation to Alamo is void.

And fourth, Miller I claimed that the Millers were

entitled to employ ARCP 4(f) to serve Alamo by publica-

tion, because they had had “difficulty in locating [him]

and efforts to serve him”.49 In fact, the Millers’ “efforts”

were so insubstantial as to render their (mis)use of ARCP

4(f) a violation of due process, and any judgment based

on such service void for want of jurisdiction.

Moreover, Miller II's affirmance of the District Court's

refusal even to investigate the ownership of Alamo’s

records palpably deprived him of due process.

45 Hovey v. Elliott, 167 U.S. 409 (1897).

46 924 F.2d at 147-48.

47 If Alamo was nota party or in privity with a party to the

first appeo' he cannot be bound by Miller I's judgment against

the Corporations simply because both he and they (according to

the supposition in the text) had standing to raise the ARCP 4(f)

issue.

48 924 F.2d at 148.

49 Id. at 147.

I. With respect to Alamo’s status as the alter ego of the

Corporations, Miller I is void as to Alamo under

Zenith Radic Corp. v. Hazeltine Research, Inc., 395

U.S. 100 (1969).

The alter-ego issues presented here are important and

recurring ones that demand this Court’s attention, not

only for Alamo’s sake but also to provide guidance in

other litigation. Zenith Radio remains the controlling pre-

cedent.© There, HRI (a subsidiary of non-party

Hazeltine) sued Zenith. HRI and Zenith stipulated that

HRI and Hazeltine were “one and the same company”,

thereby “eliminat[ing] the necessity for Zenith to

* * * pierce] the corporate veil”. Zenith then counter-

claimed against HRI, but neither named Hazeltine as a

party nor served it with the counterclaim. When Zenith

sought a judgment against Hazeltine, the latter filed a

“special appearance”. Based on the stipulation and its

own finding that Hazeltine and HRI “would be consid-

ered as one entity”, the trial court entered judgment

against both HRI and Hazeltine, “thereby rejecting

Hazeltine’s objection that the court was without jurisdic-

tion over it”.

Concluding that the judgment against Hazeltine must

be vacated, this Court explained

that one is not bound by a judgment in personam

resulting from litigation in which he is not des-

ignated as a party or to which he has not been

made a party by service of process. * * * The

consistent constitutional rule has been that a

court has no power to adjudicate a personal

claim or obligation unless it has jurisdiction

over the person of the defendant. * * *

Here, Hazeltine was not named as a party,

was never served and did not formally appear

% Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.

100, 108-11 (1969). All quotations in the following section of the

petition are from these pages in Zenith Radio.

at the trial. Nor was the stipulation an adequate

substitute for the normal means of obtaining

jurisdiction Over a person or a corporation. ** ”

Perhaps Zenith could have proved and the

trial court might have found that HRI and

Hazeltine were alter egos; but absent jurisdiction

over Hazeltine, that determination would bind

only HRI. If the alter ego issue had been litigated,

and if the trial court had decided that HR! and

Hazeltine were one and the same entity and that

jurisdiction over HRI gave the court jurisdiction

over Hazeltine, perhaps Hazeltine’s appearance

before judgment with full opportunity to contest

jurisdiction would warrant entry of judgment

against it. But that is not what occurred here. The

trial court’s judgment against Hazeltine was based

wholly on HRI’s stipulation. HRI may have exe-

cuted the stipulation to avoid litigating the alter ego

issue, but this fact cannot foreclose Hazeltine,

which has never had its day in court on the ques-

tion of whether it and its subsidiary should be

considered the same entity for purposes of this

litigation.>!

Here, Alamo did not personally participate in the

original District Court proceedings or the first appeal

(unlike Hazeltine, which filed a special appearance, and

then appealed). Alamo was named as a defendant — but

this could not confer in personam jurisdiction on the Dis-

trict Court, absent his voluntary appearance or valid

service of process. And Alamo was not properly served

under ARCP 4(f).5? So, he is in a position at least as

strong as Hazeltine’s.

*! Bold-face emphasis supplied; footnotes omitted.

°2 Alamo did not appear in the District Court to challenge

purported ARCP 4(f) service, and therefore is not bound by any

(non-existent) jurisdictional ruling of that court that he failed to

appeal. Furthermore, the statements in Miller | on the ARCP 4(f)

issue are only dicta. Thus, the question of improper service

remained open for determination on Alamo’s FRCP 60(b)(4)

Here, the District Court decided the alter-ego issue

after a trial between the Corporations and the Millers, but

without Alamo’s participation.5> Under Zenith Radio,

“absent jurisdiction over [Alamo], that determination

would bind only [the Corporations]”. Furthermore, if,

after litigating the alter-ego issue, the District Court “had

decided that [the Corporations] and [Alamo] were one

and the same entity and that jurisdiction over [the Corpo-

rations] gave the court jurisdiction over [Alamo], perhaps

[Alamo’s] appearance before judgment with full oppor-

tunity to contest jurisdiction would [have] warrant[ed]

entry of judgment against [him]. But that is not what

occurred”. To the contrary:

* The District Court never considered, let alone

decided, “that jurisdiction over [the Corporations] gave

the court jurisdiction over [Alamo]”, because it erro-

neously assumed Alamo had been served under ARC?

4(f). And,

. Alamo did not “appear[] before judgment with

full opportunity to contest jurisdiction [predicated on the

theory of alter egos|”, because neither the Millers nor the

District Court advanced that theory during the proceed-

ings; and neither Alamo nor the Corporations could rea-

sonably have predicted that Miller | would suddenly

seize upon it on appeal. Rather, as was his right, Alamo

withheld his appearance in reliance on the insufficiency

of service under ARCP 4(f), the only jurisdictional predi-

cate of which he, the Millers, and the District Court were

aware.>4

motion; and therefore the impropriety of service may be

assumed arguendo for the purposes of this part of the argument.

53 In Zenith Radio, Zenith and HRI stipulated to that issue.

But this is a distinction without a difference, as stipulations “are

to be considered facts on the trial, without further evidence”.

United States v. Sommers, 351 F.2d 354, 357 (10th Cir. 1965).

4 “No person is required to answer in a suit on whom

process has not been served.” Webster v. Reid, 52 U.S. (11 How.)

In Zenith Radio, although Hazeltine appeared and the

trial court “reject{[ed] Hazeltine’s objection that [it] was

without jurisdiction over [Hazeltine], Hazeltine was not

“foreclose[d]” on the question of in personam jurisdiction,

because it “ha[d] never had its day in court on the ques-

tion of whether it and its subsidiary should be considered

the same entity for [jurisdictional] purposes”.°> Here,

where Alamo never appeared, where the District Court

never addressed the issue of jurisdiction premised upon

alter-ego status, and where the issue arose only on an

appeal in which Alamo did not participate (again, as was

his right were ARCP 4(f) service defective), Alamo has

unquestionably not “ha[d] his day in court” — and for the

District Court on Alamo’s FRCP 60(b)(4) motion and the

Court of Appeals in Miller Il to hold otherwise deprived

him of due process of law.5

437, 459-60 (1851). Absent service, “[a] defendant is always free

to ignore the judicial proceedings, risk a default judgment, and

then challenge that judgment on jurisdictional grounds”. Insur-

ance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 706 (1982). And “a judgment rendered in personam

against a defendant without jurisdiction of his person is * * *

void”, and “a nullity”. Wetmore v. Karrick, 205 U.S. 141, 149

(1907); Walden v. Craig’s Heirs, 39 U.S. (14 Pet.) 147, 154 (1841).

55 Zenith Radio denied that Hazeltine could be deemed to

have “ha[d] its day in court” simply because HRI stipulated that

Hazeltine was its alter ego, or because (absent Hazeltine as a

party) “Zenith could have proved and the trial court might have

found that HRI and Hazeltine were alter egos”. “[A]bsent juris-

diction over Hazeltine”, this Court held, “that determination

would bind only HRI”. See also Hazeltine Research, Inc. v. Zenith

Radio Corp., 388 F.2d 25, 30 (7th Cir. 1967).

% E.g., Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327

n.7 (1979)(“violation of due process for a judgment to be bind-

ing on a litigant who was not a party or a privy and therefore

has never had an opportunity to be heard”).

Il. Either Miller I’s ruling that Alamo had appeared in

the District Court through the alter-ego Corpora-

tions rendered the default judgment void; or Fed-

eral Rule of Civil Procedure 55 is unconstitutional

as applied.

Besides running afoul of Zenith Radio, Miller I's the-

ory of Alamo’s vicarious representation by the alter-ego

Corporations crashes head-on, with logical and legal

fatality, into the core principle of due process: the right to

notice and hearing “at a meaningful time and in a mean-

ingful manner” .57

Under Miller I's vicarious-representation theory, “the

entry of appearance by th{e Corporations in the District

Court] constituted an entry of appearance by Tony

Alamo”.5* But this entry, denying all liability, occurred

months before the Millers sought Alamo’s default.°% Dur

ing that time, the Corporations (and, under Miller I's

theory, Alamo too) neither had “failed to plead or other-

wise defend”, nor were subject to any sanctions on the

issue of liability,“’ and therefore were not conceivably in

default, even had they failed to appear at a hearing on

that issue.* But the District Court held no such hearing

” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

% 924 F.2d at 148.

See Miller v. Tony and Susan Alamo Fd’‘n, No. 88-2206

(W.D. Ark.), Docket Nos. 3, 8, 10, in Alamo’s Cir. Ct. App. at 4

Fed. R. Civ. P. 55(a).

1 Later, the Millers unsuccessfully sought a default against

the Corporations, but did obtain sanctions excluding the latters’

witnesses from the hearing on the alter-ego issue. Miller v. Tony

and Susan Alamo Fd’n, No. 88-2206 (W.D. Ark.), Docket Nos. 63,

65, 103, in Alamo’s Cir. Ct. App. at 5, 7.

62 E.g., Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949)

(FRCP 55(a) “does not require that to escape default the defen-

dant must not only file a sufficient answer to the merits, but

must also *** be present in court when the case is called for a

instead, it excluded the Corporations from the later default

hearing on damages; and, after finding the Corporations to be

Alamo’s alter egos, let stand the earlier default against him.

In Hovey v. Elliott,“ this Court asked

whether a court * * * has the right to summon a

defendant to answer, and then after obtaining

jurisdiction by the summons, refuse to allow the

party summoned to answer or strike his answer

from the files, suppress the testimony in his

favor, and condemn him without consideration

thereof and without a hearing * * * . The mere

statement of this proposition would seem, in

reason and conscience, to render imperative a

negative answer. The fundamental conception of

a court of justice is condemnation only after

hearing. To say that courts have inherent power

to deny all right to defend an action and to

render decrees without any hearing whatever is,

in the very nature of things, to convert the court

exercising such authority into an instrument of

wrong and oppression, and hence to strip it of

that attribute of justice upon which the exercise

of judicial power necessarily depends.

The Court then asked

whether a judgment based upon the exercise of

such an assumed power is void for want of

trial. ** * When [the defendant] by his attorney filed a denial of

the plaintiff’s case neither the clerk nor the judge could enter a

default against him”). Archawski v. Hanioti, 239 F.2d 806, 807

(2d Cir. 1956) (party’s “failure to appear [at trial] ** * was not

properly speaking a default and did not admit all the * * *

allegations of the libel. His answer had put all these allegations

in issue and [other parties] were accordingly put to their

proof”).

63 167 U.S. 409, 413-14, 444-45, 446 (1897). Hovey involved

entry of a decree that a bill be taken pro confesso, as punishment

for an alleged contempt of court. Id. at 411-12. Here, the default

entered against Alamo involved no purported sanction; so the

relief he requests follows a fortiori from Hovey.

jurisdiction * * * . It cannot be doubted that

where a judgment is rendered without the issu-

ance and service of summons against a party

who did not enter an appearance, the court ren-

dering it is without jurisdiction to do so, and it

can be assailed as void * * * [T]he judgment [sub

judice] was substantially one without a hearing,

for of what efficacy or avail was the summons to

appear when the court which issued the sum-

mons rendered its judgment upon the theory

that the summons was inefficacious, and that

the defendant had no right either to appear or

be heard in his defense?

* * *

There is no distinction in principle between

determining a cause upon issues not raised by

the pleadings in the actual! absence of the party,

and rendering a decree by refusing to permit a

defendant to be heard in his defense or to con-

sider the merits of a sufficient defense, and,

indeed, by striking the pleading containing such

defense from the files.

Mutatis mutandis, this reasoning applies in both principle

and practice to entry of a default without a hearing where

(according to Miller I’s theory) Alamo actually

appeared.

“4 In principle: Compare FRCP 55(a) with Societe Interna-

tionale v. Rogers, 357 U.S. 197, 209 (1958)(Hovey “establish[es]

that there are constitutional limitations upon the power of

courts *** to dismiss an action without affording a party the

opportunity for a hearing on the merits”), and with 28 U.S.C.

§ 2072(a) (“rules shall not abridge *** any substantive right”)

In practice: Bass v. Hoagland, 172 F.2d 205, 209-11 (5th Cir. 1949)

(entry of default where party not in default violates due process,

and judgment set aside, following Hovey). See also Escoe v.

Zerbst, 295 U.S. 490, 494 (1935)(“[w]hen an opportunity to be

heard is denied altogether, the ensuing mandate of the court is

void”); In re Noell, 93 F.2d 5, 6 (8th Cir. 1937)(” ‘sentence of a

Thus, when Miller | suddenly seized on the theory of

vicarious representation, it impliedly condemned the

default judgment against Alamo as void ab initio. Yet, sub

silentio, Miller I allowed that judgment to stand - in effect,

creating a new, unheard-of, and self-contradictory “non-

default default judgment”! This result, however, plainly

deprived Alamo of due process of law.®

To argue that, by not appealing the default judg-

ment, Alamo, the Corporations, or both “waived” any

right to object to ex post appellate invention of this “non-

default default judgment” is doubly wrong: First, if (as

Zenith Radio teaches) Miller I erred in treating the Corpo-

rations’ appearances as appearances by Alamo, then

Alamo “waived” nothing, because (as shown ante) he was

not a party to the appeal, was not required to appeal, was

entitled to attack the default judgment as void under

FRCP 60(b)(4) at any time notwithstanding the dicta in

Miller | on the ARCP 4(f) issue, and was not bound by

Miller I’s erroneous application of the alter-ego theory to

the Corporations. Second, even if Miller I correctly held

that Alamo appeared in the District Court through the

Corporations, nevertheless -

¢ Neither that court, nor the Millers, nor the Cor-

porations and Alamo had any inkling during the original

District Court proceedings that Miller | would invoke a

court pronounced against a party without *** giving him an

opportunity to be heard, is not a judicial determination of his

rights, and is not entitled to respect in any other tribunal’ ”,

following Hovey); Winhoven v. United States, 201 F.2d 174,

174-75 (9th Cir. 1952) (judgment entered without right to hear-

ing denies due process and is void).

65 Cf. Wetmore v. Karrick, 205 U.S. 141, 160 (1907)(entry of

new judgment against party without opportunity to be heard

violates due process); Warner v. Godfrey, 186 U.S. 365, 377

(1902)(allowing amendment of bill to assert new basis for relief,

but precluding defendants from interposing defense, violates

due process).

6 See 924 F.2d at 147.

theory of vicarious representation “out of the blue” on

appeal.°”

¢ Alamo proceeded on the good-faith beliefs that

service under ARCP 4(f) was ineffective, that the pres-

ence of his supposed alter-ego Corporations did not give

the District Court in personam jurisdiction over him

(Zenith Radio), and that he did not need to appeal but

instead could challenge the default judgment under FRCP

60(b)(4) later on. And,

¢ Alamo lacked pre-appeal! notice that he might

be held to have appeared through the Corporations, and

therefore had no meaningful opportunity to consider

whether to appeal the default judgment.

These facts show anything but a “waiver” of due-

process rights.

In the alternative, if Federal Rule of Civil Procedure

55 sanctions Miller I’s “non-default default judgment”,

then that rule is unconstitutional as applied.

III. With respect to purported service of process on

Alamo under Arkansas Rule of Civil Procedure

4(f), Miller I is void, because its statements on that

issue are only dicta.

The lower courts were on no firmer ground to rely on

Miller I with respect to service of process on Alamo under

67 Indeed, a theory of vicarious representation was totally

inconsistent with the course of action followed: viz., the Millers

sought to serve Alamo personally under ARCP 4(f); the Corpo-

rations answered, but default was entered against Alamo any-

way; and the Corporations were precluded from participating in

the default hearing on damages.

68 To overcome the strong presumption against the waiver

of constitutional rights, it must be “clearly established” with

“circumstances *** clear and compelling” that there has been

“an intentional relinquishment or abandonment of a known

right or privilege”. Brookhart v. Janis, 384 U.S. 1, 4 (1966); Curtis

Publishing Co. v. Butts, 388 U.S. 130, 145 (1967); Johnson vy.

Zerbst, 304 U.S. 458, 464 (1938).

ARCP 4(f). For Miller I’s language on this issue is only

dicta.

Alamo did not appeal in Miller 1. If the Corporations

did not vicariously represent him under an alter-ego the-

ory of in personam jurisdiction (as Alamo has shown ante),

then they lacked standing to appeal the question of per-

sonal service on him under ARCP 4(f); and the Circuit

Court therefore lacked jurisdiction to opine on the mat-

ter.°? Conversely, if the Corporations did vicariously rep-

resent Alamo, then (as Miller I itself said) “the entry of

appearance by these entities [in the District Court] consti-

tuted an entry of appearance [there] by Tony Alamo”

months before the Millers applied for an ARCP 4(f)

“warning order”.”? Inasmuch as that rule allows service

only when the “whereabouts of a defendant remains

unknown”,”! substituted service on Alamo was never nec-

essary or proper (he being present in court through the

alter-ego Corporations under the assumption of vicarious

952, 953 (8th Cir. 1983)(corporation may not assert rights of

individual); Tileston v. Ullman, 318 U.S. 44, 46 (1943)(appeal

“must be dismissed” where appellants lack standing).

70 The Corporations answered on 16 November 1988, and

27 and 28 March 1989. Miller v. Tony and Susan Alamo Fd’n, No.

88-2206 (W.D. Ark.), Docket Nos. 3, 8, 10, in Alamo’s Cir. Ct.

App. at 4. The Millers filed their first affidavit in support of

ARCP 4(f) service on 21 June 1989. Id., Docket No. 16, in Alamo’s

Cir. Ct. App. at 4.

71 Pet. App. at 23a (emphasis supplied). See Smith v.

Edwards, 279 Ark. 79, 82, 648 S.W.2d 482, 484 (1983). Arkansas’

rules of substituted service are mandatory, must be strictly con-

strued, and require exact compliance. E.g., Sims v. Prescott Feed

Mills, Inc., 286 Ark. 22, 23, 688 S.W.2d 743, 744 (1985); Edmon-

son v. Farris, 263 Ark. 505, 508, 565 S.W. 2d 617, 618 (1978). See

also Galpin v. Page, 85 U.S. (18 Wall.) 350, 368 (1874)(when

“constructive service of process by publication is substituted in

place of personal citation, *** every principle of justice exacts

a strict and literal compliance with the statutory provisions”).

representation). And the issue of such service therefore

became moot and nonjusticiable as soon as Miller | deno-

ted the Corporations Alamo’s alter egos.”? Thus, in either

event, Miller I's comments on the ARCP 4(f) issue were

only dicta. These dicta, however, could not foreclose the

District Court from plumbing the sufficiency of ARCP

4(f) service on Alamo’s Rule 60(b)(4) motion. And to the

extent that the District Court and Miller II relied on these

dicta to deny that motion, they deprived Alamo of due

process of law.

IV. If Arkansas Rule of Civil Procedure 4(f) sanctions

service of process by publication under the facts of

this case, it violates due process.

Finally, Miller | misperceived the key facts on the

ARCP 4(f) issue when it wrongly related in dicta that

“(t]he affidavit required by this Rule * * * recites in great

detail the [Millers’] difficulty in locating Alamo and

efforts to serve him”.”* And the District Court and Miller

I] rashly relied on this language to deny Alamo an evi-

dentiary hearing on his FRCP 60(b)(4) motion. For, if the

Millers’ affidavit was sufficient to allow service by pub-

lication under ARCP 4(f), then (as applied) that rule

deprived Alamo of due process.

72 By upholding the District Court’s finding on the Corpo-

rations’ alter-ego status and applying the theory of vicarious

representation, Miller | excluded any rational basis for finding

simultaneous ARCP 4(f) jurisdiction, and mooted that issue. See,

e.g., Tiedeman v. Chicago, M., St. P. & P.R.R. Co., 513 F.2d 1267,

1273 (8th Cir. 1975) (decision on one issue can moot other issue)

At that point, the Miller | court lost jurisdiction to “decide” the

issue. Compare Iron Arrow Honor Society v. Heckler, 464 U.S. 67,

70 (1983), with Bishop v. Committee on Professional Ethics and

Conduct of the lowa State Bar Ass’n, 686 F.2d 1278, 1283-84 (th

Cir. 1982).

73 924 F.2d at 147.

“[JJudgments in personam, obtained ex parte

against * * * absent parties, upon mere publication of

process * * * [can] be the constant instruments of fraud

and oppression.”74 That ARCP 4(f) mandates “diligent

inquiry” prior to publication of a “warning order” is not

enough. Arkansas itself recognizes that, if true diligence is

not required to ascertain a defendant’s “last known

address”, a “long-arm” statute is unconstitutional.7> And

process which is a mere gesture is not due pro-

cess. The means employed must be such as one

desirous of actually informing the absentee

might reasonably adopt to accomplish it. * * *

* * * Where the names and * * * addresses of

those affected by a proceeding are at hand, the

reasons disappear for resort to means less likely

than the mails to apprise them of its pendency.76

Here, the record —- in which “the facts essential to the

exercise of [ARCP 4(f)] jurisdiction must appear”, lest “a

judgment in the proceeding [be] void”’” - refutes any

notion that the Millers experienced “difficulty in locating

Alamo and efforts to serve him”’8 that was the product of

something other than their own sloth, and thereby attests

that they engaged in no constitutionally sufficient inquiry.

In a period of almost eight months, when they had every

reason to believe Alamo was in Saugus, the Millers made

74 Pennoyer v. Neff, 95 U.S. 714, 726 (1878).

75 See Halliman v. Stiles, 250 Ark. 249, 255, 464 S.W.2d 573,

577 (1971).

76 Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 316, 318 (1950), followed in Schroeder v. City of New York,

371 U.S. 208, 212-13 (1962). A non-party’s mere knowledge that

court-proceedings are taking place is not enough. New York v.

New York, N.H. & H.R.R., 344 U.S. 293, 296-97 (1953).

77 Davis v. Schimmel, 252 Ark. 1201, 1213, 482 S.W.2d 785,

791-92 (1972). Accord, Galpin v. Page, 85 U.S. (18 Wall.) 350, 371

(1874).

78 924 F.2d at 147.

but three mailings: twice to the outdated address in Alma

(28 October 1988 and 26 June 1989), and only once to

Saugus (6 June 1989). Also, the Millers clearly did not

comply with what must be the constitutional minimum

for ARCP 4(f) by mailing to Alma on 26 June 1989, when

their mailing of 28 October 1988 to that location had been

returned “Not at This Address”, and when on 19 June

1989 they received the return of their Saugus mailing of 6

June 1989, indicating Alamo “ha[d] recently been there or

w[ould] be returning there”.79

Moreover, nothing evidences that Alamo ever

“evaded” service by refusing to accept mail.®° Indeed,

just the opposite: The first mailing to Alma was returned

“Not at This Address”, not refused. The second mailing

to Alma was returned “Unclaimed” and “postage due”,

not refused.®! And the mailing to Saugus was not refused,

either, but returned “Not presently at this address”, from

which the Millers’ own attorney concluded “that Mr.

Alamo ha[d] recently been there or w[ould] be returning

there, and that his whereabouts [were] known to one or

more individuals at the * * * Church”.82 No one could

79 See DiCesare-Engler Productions, Inc. v. Mainman Ltd.,

81 F.R.D. 703, 704-05 (W.D. Pa. 1979)(“[w]hen put on notice

[defendant] had moved *** [plaintiff] was required to make at

least a minimal effort to obtain his new address”).

80 Contrast, e.g., Nikwei v. Ross School of Aviation, Inc., 822

F.2d 939, 941-43 (10th Cir. 1987).

81 See Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990)

(return of certified mail “unclaimed” does not constitute refusal

or create a presumption of refusal); Recreational Properties, Inc. |

v. Southwest Mortgage Service Corp., 804 F.2d 311, 314-15 (5th

Cir. 1986)(“no requirement that the addressee pay for postage

prior to receiving [mail]”, and “did not have to accept the

envelopes”).

82 Significant is that a litigant in another case was able to

serve Alamo at the Saugus church during April, 1989, and that

the Millers never used the Saugus address as the starting-point

for a search. See Smith v. Edwards, 279 Ark. 79, 82, 648 S.W.2d

“infer[] evasion on the part of [Alamo] because of the[se]

repeated, though faulty, attempts at service~ by the Mil-

lers.*

In short, if the Millers’ attempts at service were no

“mere gesture”, nothing would be. And if such a “mere

gesture” is “diligent inquiry” under ARCP 4(f), then

application of that rule deprived Alamo of due process.

V. The lower courts’ refusal to investigate the owner-

ship of Alamo’s personal and business records

deprived him of due process.

Finally, the lower courts’ treatment of Alamo’s

motion as to the records further exemplifies their disdain

for the rudiments of due process. The records were not

sold as personalty to the Millers on execution of the

judgment against Alamo. Rather, the Millers contended

that Alamo had abandoned the records on certain real

property they purchased pursuant to the judgment. But

that contention raised a complex factual issue of Alamo’s

intent under Arkansas common law which the District

Court refused even to investigate.

Instead, the District Court (affirmed in Miller Il) glibly

denied Alamo’s motion on the ground that he “failed to

cite any legal authority for his request”.84 Alamo, how-

ever, knows of no authority hoiding that an individual

irretrievably loses his right to attempt to prove owner-

ship of personal records and business records of corpora-

tions declared to be his alter egos simply because he has

had a default judgment entered against him for damages,

and notwithstanding that execution on that judgment has

not involved any purported sale of the records. To the

contrary: the entire corpus of due-process jurisprudence

482, 484 (1983)(treating similar facts as evidence that party “did

not make a diligent search”).

&3 Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d

297, 303 (7th Cir. 1991)(emphasis in the original).

“ Pet. App. at 10a.

affirms that an individual may not be finally deprived of

property until he has had a meaningful hearing on his

claim.

CONCLUSION

As applied to Alamo, Miller I is a judicial travesty.

The Circuit Court treated Alamo as having personally

been found to be the Corporations’ alter ego - although he

was never served, did not appear in the District Court,

never litigated the alter-ego issue, and did not appeal. The

Circuit Court ruled that Alamo did appear in the District

Court through the alter-ego Corporations — although the

latter court had entered a default judgment against him

for failing to appear (which non-default default judg-

ment the Circuit Court implicitly condoned). And the

Circuit Court concluded that the alter-ego Corporations

had standing to raise (and lose) the issue of ARCP 4(f)

service — although, if Alamo had appeared in the District

Court through them (as the Circuit Court said he had) he

could not possibly have been subject to service by pub-

lication at all.

Worse yet, Miller II is a judicial dereliction. For, con-

fronted with an unanswerable critique of Miller I’s outra-

geous deficiencies in due process in the light of Zenith

Radio and Hovey, the Circuit Court simply looked the

other way in an unpublished opinion that avoids even

acknowledging the issues, let alone addressing the merits

~ thus leaving the deprivations of Alamo’s due-process

rights not only unrectified but also unscrutinized. The

court also left unscrutinized the issue of ownership of

key records Alamo needs to defend himself in on-going

litigation — thus setting the stage for further deprivations

of due process.

And most serious of all, unless reversed, Miller | and

Miller II will provide the most perverse of precedents in

the important provinces of alter-ego jurisprudence, default

judgments, and due process, potentially perverting a

plenitude of future cases.

For these compelling reasons, this Court should grant

Alamo’s petition and issue a writ of certiorari.

Respectfully submitted,

EDWIN VIEIRA, JR

13877 Napa Drive

Manassas, Virginia 2211]

(703) 791-6780

Counsel of Record for Petitioner

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 92-1447WA

No. 92-2205WA

Robert A. Miller; Kody Miller,

by Robert A. Miller; Robert

Miller, by Robert A. Miller;

Carey Miller; leremiah Justin

Miller, by Carey Miller; Rick

Miller; James Miller,

Appellees,

Vv.

Tony Alamo, also known as

Tony Fernando, also known as

Tony Fernando Alamo, also

known as Bernie Lazar, also

known as Bernie Hoffman, also

known as Bernie Lazar Hoffman,

also known as Boris Lazar, also

known as Papa Tony,

individually and as officer &

director of Tony & Susan Alamo

Foundation & Music Square

Church,

Appellant.

Submitted:

Filed:

November 12, 1992

November 19, 1992

Appeals from the

United States

District Court for

the Western

District of

Arkansas.

[UNPUBLISHED]

Before FAGG, BEAM, and HANSEN, Circuit Judges.

PER CURIAM.

Tony Alamo appeals adverse rulings of the district

court in these combined cases. Having reviewed the

record and the parties’ briefs, we conclude the issues

raised on appeal do not require further consideration.

The district court’s rulings are clearly correct. We affirm

the district court. See 8th Cir. R. 47B.

[2] A true copy

Attest

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

ROBERT A. MILLER, ET AL. PLAINTIFFS

v. Civil No. 88-2206

TONY AND SUSAN ALAMO

FOUNDATION, ET AL. DEFENDANTS

ORDER

On October 21, 1991, Tony Alamo (Alamo) filed a

motion to dismiss or set aside the default judgment

entered on April 27, 1990, and for return of property sold

as a result of that judgment. The afternoon of November

12th, Alamo filed a motion for temporary restraining

order (TRO) along with a motion for preliminary injunc-

tion. He sought to restrain the U.S. Marshal, the plaintiffs

and the buyers of the auctioned property from disposing

of, degrading the value of or selling any property

obtained as a result of this case until the Court could rule

on his motion to set aside and vacate the default judg-

ment. The Court held a telephonic conference the morn-

ing of November 14th.

By order filed on November 15th reflecting the rul-

ings announced at the conference, the Court denied the

November 12th motion for TRO and noted the parties

had stipulated that there would be a merger of the

motion for preliminary injunction with a decision on the

merits of the motion to set aside. Alamo was directed to

file his brief by November 25th on whether the [2] hoid-

ings in Miller v. Tony and Susan Alamo Foundation, 924 F.2d

143 (8th Cir. 1991) (Miller) that the district court had

personal jurisdiction of Alamo and that the corporate

entities were his alter egos are dispositive of his motion

with replies to Alamo’s brief to be filed by December 2nd

The Court stated that once all the briefs were filed a

review of the file would be made to determine if a ruling

could be made on the record without additional testi

mony or argument

On November 22nd, plaintiffs filed a response to the

motion for return of property. They argue that if Alamo is

correct in his assertion that the property is his, then he is

admitting that the Court was correct in findings that the

corporations were acting as his “alter egos.” They con

tinue that if Alamo ts instead arguing that the corpora

tions are distinct and separate entities from him, then he

Is not the proper party to demand the property’s return

On November 26th, Alamo filed his brief on the

Eighth Circuit decision. He argues that the issues pre

sented by his October 21st motion were not litigated in

the kighth Circuit, that this Court is not prohibited from

addressing the merits of a Civil Procedure Rule 60(b)

motion after an appeal, that he would be denied due

process if the prior judgment is considered binding on

him since he was a non-party, that there is no privity

between himself and the corporate entities, that the doc-

trine of res judicata does not apply to a direct attack on

the judgment, that the corporate entities lacked standing

to raise the issue of whether there was [3] jurisdiction

over him, and that even if plaintiffs had complied with

Arkansas’ provision for service by publication, such rule

was constitutionally deficient as applied in this case.

He filed his response on November 27th to Plaintiffs’

November 12th objection and motion to strike exhibits

that were attached to his October 21st motion. He asserts

that the exhibits constitute an offer of proof of what

evidence would be presented at an evidentiary hearing

On November 29th, he filed a reply on the motion for

return of property that if the default judgment is set

aside, then plaintiffs have no legal right to the property

regardless of whether he or the corporate entities own the

property. That same date, he filed a supplement to his

November 26th brief adding the argument that his lia-

bility for the damages awarded to plaintiff was not

briefed or considered on appeal.

Plaintiffs filed a combined response to the motion to

dismiss/motion to set aside and vacate default judgment

and their brief regarding the Eighth Circuit decision. The

brief first deals with Alamo’s argument that the claims

against him should be dismissed since he was not served

within 120 days and then discusses the service by the

warning order. Besides responding to the points raised by

Alamo, plaintiffs discuss the preclusive effects of the

prior litigation, his failure to meet the burden of proof,

and the issues of waiver and estoppel due to Alamo’s

affirmative misconduct.

[4) Alamo filed a reply on December 5th attaching

transcript portions of the detention hearings held in

Alamo’s criminal case. That same date, plaintiffs filed an

opposition to Alamo’s November 29th supplemental! brief

on both timeliness and substantive grounds

On December 6th, plaintiffs filed a reply on the

motion for return of property. Their surreply on the

motion to vacate was filed on December 12th attacking

the admissibility of the exhibits to Alamo’s December Sth

pleading.

The Court has carefully examined the arguments of

Alamo and plaintiffs in the context of the record includ-

ing the Miller opinion and the applicable law. The Court

has concluded that neither an evidentiary hearing nor

further argument is required. It is not necessary to get

bogged down in addressing all the fallacies of Alamo’s

arguments since plaintiffs have fully done so. The bottom

line is that the Eighth Circuit in Muller has already

decided that the district court had personal jurisdiction

over Alamo pursuant to Arkansas Civil Procedure Rule

4(f) and that, in any case, the entry of appearance of the

corporate entities, which have been found to be alter egos

of Alamo, constituted an entry of appearance by Alamo.

Alamo has simply not shown any basis for the Court to

ignore and relitigate those factual and legal determina-

tions. He is not entitled to another bite at the apple under

the guise of imaginative, post-appeal variations that ulti-

mately still challenge personal jurisdiction.

[5] On December 6th, plaintiffs filed a motion to

Strike the appearance of the corporate entities through

Roy Gean, III. They ask that all parties be relieved from

serving anyone purporting to represent Music Square

Church, Inc. and/or Tony and Susan Alamo Foundation

since those entities have no existence separate from

Alamo. In particular, plaintiffs are concerned that the

reappearance of Gean in the certificates of service might

be used by Alamo as a waiver by plaintiffs or demon-

Strating inconsistent action by the Court. Attached as an

exhibit is Gean’s February 25, 1991 letter explaining why

——————EEE———

he would no longer be participating in the proceedings.

No response to this motion has been filed. Besides the

points made in plaintiffs’ motion, the Court notes that

Gean did not participate in the November 14th telephonic

conference. Plaintiffs’ arguments and concerns are well

taken and the motion to strike the appearance of the

previously dismissed corporate defendants will be

granted.

Finally, it appears that there is an outstanding motion

filed by plaintiffs on August Ist for attorney’s fees and

costs under the Equal Access to Justice Act (EAJA)

against the United States. This motion is referred to U. S.

Magistrate Judge Stites for recommended disposition.

Accordingly, Alamo’s October 21st motion to dismiss

or, in the alternative, to set aside and vacate default

judgment and for return of property is denied. As

Alamo’s motion for preliminary injunction was merged

with the merits of the October 21st motion, the November

12th motion for preliminary injunction is denied. [6]

Since the exhibits do not affect the Court’s ruling, plain-

tiffs’ November 12th motion to strike exhibits is denied.

Plaintiffs’ December 6th motion to strike the appearance

of the previously dismissed corporate defendants is

granted. Plaintiffs’ August Ist motion for attorney’s fees

and costs under EAJA against the United States is

referred to Magistrate Judge Stites for recommended dis-

position. Unless the parties notify the Court in writing

within 15 days from the file-date of this order of any

outstanding motion not addressed by this order, such

motion will be deemed moot.

IT IS SO ORDERED this 1] day of February, 1992.

UNITED STATES

DISTRICT JUDGE

/s/ George Howard, Jr.

U.S. DISTRICT COURT

WESTERN DIST.

ARKANSAS This document entered on

FILED docket in compliance with

FEB 12 1992 Rule 58 and 79(a), FRCP,

9.19.99

CHRIS R. JOHNSON, Clerk 0” 2:12:92 by MSJ

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

ROBERT A. MILLER, ET AL. PLAINTIFFS

V. Civil No. 88-2206

TONY AND SUSAN ALAMO

FOUNDATION, ET AL. DEFENDANTS

ORDER

(Filed April 27, 1992)

On February 18th, Alamo filed a motion for deter-

mination of ownership and the release of records seized

by the U.S. Marshal Service during the execution of the

money judgment in favor of the plaintiffs. This motion is

supported by exhibits. Plaintiffs responded on February

25th and also moved for imposition of sanctions. Alamo

filed a reply to his motion that also responded to the

request for sanctions on February 28th. Plaintiffs filed a

reply to their sanctions motion on March 5th. Alamo filed

a supplemental response on sanctions on March 13th and

plaintiffs filed a sur-reply on April 2nd.

On October 17th, a motion for order to release

records so they could be used in another case was filed at

Alamo’s request. After the matter was referred to Magis-

trate Judge Stites for disposition, the motion was denied

by order filed on October 21st on the ground that no legal

authority for the unusual request had been presented

Plaintiffs argue that in light of the October [2] 21st deci-

sion, Alamo should be assessed sanctions for trying to

relitigate this issue.

10a

The records at issue were left on properties that were

executed upon in February of 1991 and later sold to

plaintiffs at execution sale in this case. Alamo has once

again failed to cite any legal authority for his request. The

motion for determination of ownership of records and for

order of release is denied. However, the Court is per-

suaded that sanctions are not warranted and so plaintiffs’

motion for imposition of sanctions will be denied.

Finally, plaintiffs filed a third petition for allowance

of attorney’s fees and costs on February 26th. No

response to this petition has been filed. This petition is

referred to Magistrate Judge Stites for recommended dis

position.

Alamo’s February 18th motion for determination of

ownership of records and for order for release and plain-

tiffs’ February 25th motion for imposition of sanctions are

denied. Plaintiffs’ February 26th third petition for

allowance of attorney’s fees and costs is referred to Mag-

istrate Judge Stites for recommended disposition

IT IS SO ORDERED this 24 day of April, 1992.

This document entered on /s/ George Howard, Jr.

docket in compliance with UNITED STATES

Rule 58 and 79(a), FRCP, DISTRICT JUDGE

on 4-27-92 by MSJ

lla

Robert A. MILLER; Kody Miller by Robert A. Miller;

Robert Miller by Robert A. Miller; Carey Miller; Jer-

emiah Justin Miller by Carey Miller; Rick Miller; James

Miller; Claudia Greiner; Ave Maria Askey; Nanette Mil-

ler, Appellees.

Vv.

TONY AND SUSAN ALAMO

FOUNDATION, Appellant,

t/d/b/a Southwest Business Management Co., Tony and

Susan Alamo Christian Foundation, Holy Alamo Chris-

tian Church, Alamo Builders Emporium of Alma, Ark.,

Alamo Candy Company, Alamo Construction Company,

Alamo Electric of Alma, Ark., Alamo Expert Roofing of

Fort Smith Ark., Alamo Land Development Company of

Alma, Ark., Alamo Plumbing of Alma, Ark., Tennessee

Country Boy Distributors & TCB Distributors;

Music Square Church, Appellant.

t/d/b/a Alamo Mini Mart, Holiness Tabernacle Christian

School, Alamo of Nashville in Alma, Alamo Ready Mix,

Alamo Discount Grocery, Hartford Advertising, Aiamo

Freight, Alamo Farms, Alamo Restaurant, Alamo Kerr-

McGee Transmission Shop, Alamo DX, & End Times

Books; Tony Alamo, a/k/a/ Tony Fernandoi,a/k/a Tony

Fernando Alamo, a/k/a/ Bernie Lazar, a/k/a Bernie Hoff-

man, a/k/a Bernie Lazar Hoffman, a/k/a Boris Lazar, a/k/

a Papa Tony, ind. & as officer & dir. of Tony & Susan

Alamo Foundation & Music Square church; Marc

Lundgarten, ind. & managing agent for Tony & Susan

Alamo Foundation & Music Square Church; Tommy

Scarcello, ind. & managing agent for Tony & Susan

Alamo Foundation & Music Square Church; Carol Ann

Miller, a/k/a Carol Ann [144] Landgarten, ind. & manag-

ing agent for Tony & Susan Alamo Foundation & Music

Square Church; Susan L. Miller a/k/a Susan Scarcello,

ind. & managing agent for Tony & Susan Alamo Foun-

dation & Music Square Church.

12a

No. 90-1826.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1990.

Decided Jan. 23, 1991.

Plaintiffs brought suit against four individuals and

two alleged corporate entities, alleging violations of the

Fair Labor Standards Act, the Davis-Bacon Act, and the

Arkansas minimum wage law. Other counts alleged var-

ious common-law torts perpetrated against defendants.

The United States District Court fer the Western District

of Arkansas, Morris Sheppard Arnold, J., ruled that cor-

porate entities were alter egos of individual defendant,

and entered personal judgment against individuai defen-

dant in the amount of $1,448,549. Corporate entities

appealed. The Court of Appeals, Henry Woods, District

Judge, sitting by designation, held that: (1) district court

did not err in disallowing testimony of defense witnesses;

(2) court properly denied motion for recusal; (3) court

had personal jurisdiction over defendant under the

Arkansas Long Arm Act; and (4) evidence supported

finding that alleged corporate entities were alter egos of

individual defendant.

Affirmed.