Central Laborers' Pension, Welfare and Annuity Funds v. Griffee, 198 F.3d 642 (7th Cir. 1999)-A "trio" of affiliated multiemployer ERISA plans (a defined-benefit pension plan, a defined-contribution pension plan, and a welfare plan) for construction employees in Illinois brought suit against a contractor named Griffee to recover some $29,000 in delinquent contributions. However, the plans failed to serve Griffee with process. In an attempt to fix this mistake, they asked the court to dismiss the suit, and served process on Griffee the very next day. A month later they moved the district court to reinstate their suit nunc pro tunc, backdating the reinstatement to the day on which the suit had been dismissed. They then sought, and were granted, a default judgment against Griffee after he failed to respond.
Griffee moved the court to vacate the default judgment as void on the ground that service had been improper, not only because the suit had been dismissed before service was made but also because service had been made by a person who had a financial stake in the litigation—in this case, an official of one of the local unions whose members (including the official) were plan participants.
Writing for the court, Judge Posner stated, "the only proper office of a nunc pro tunc order is to correct a mistake in the records; it cannot be used to rewrite history." Because proper service was not made, there was no jurisdiction over the defendant. As for Griffee’s objection to the process server, the district judge erred in simply referring to Fed. R. Civ. P. 4(c)(2), which says that "service may be effected by any person who is not a party and who is at least 18 years of age." This court found that "when a suit is brought by a fiduciary, his beneficiary, while not a named party, is the real party in interest and it would be curious, to say the least, to have service performed by a real party in interest."
