Appeal from the United States District Court for the Southern District of New York.
Present: HONORABLE IRVING R. KAUFMAN, Chief Judge. HONORABLE J. JOSEPH SMITH, HONORABLE WILLIAM H. TIMBERS, Circuit Judges
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was submitted.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
1. On appeal from a default judgment where defendant did not appear, our review is limited to defects appearing on the face of the record. 6 Moore's Federal Practice P 55.09, at 55-201; 9 id. P 203.06, at 720-21. If a defendant wishes to raise factual issues not apparent on the face of the record, his proper course is to file a motion in the district court pursuant to Fed. R. Civ. P. 60(b).See Fed. R. Civ. P. 55(c).
2. The NAEGA 2 terms, incorporated by reference in the contract of sale, specified arbitration in New York and provided that judgment on the award might be entered in the New York courts "or any other court having jurisdiction thereof." Under § 9 of the Arbitration Act, 9 U.S.C. § 9, this was an effective consent to the jurisdiction of the court below. Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268 (2d Cir. 1971). Accordingly, if service of process was valid, the judgment must be affirmed.
3. Section 9 of the Arbitration Act does not require service of a summons and complaint upon a respondent, but merely "[notice] of the application,... [whereupon] the court shall have jurisdiction of such party as though he had appeared generally in the proceeding." Appellant's contention that a Notice of Motion is required to vest jurisdiction has no support in the statute or the cases.
4. The petition was mailed to appellant by the Clerk of the Court, and the return receipt (which bears a Bologna postmark) appears in the record. Accordingly, the requirements of Fed. R. Civ. P. 4(i)(1)(D), (i)(2) were met, and service of process was valid. The return receipt need not have been signed by the addressee; if the signature is not that of an agent of the appellant and appellant did not receive actual notice of the petition, he may apply for relief, if any is available, in the court below.