Commercial Litigation and Arbitration

On Rule 60(b)(4) Motion to Vacate Default Judgment for Improper Service, Who Bears Burden of Proving/Disproving Effective Service? Circuit Split

Myers v. Moore, 2014 U.S. Dist. LEXIS 176409  (E.D. Pa. Dec. 22, 2014):

III.  RULE 60(b)(4)

Defendants Moore and Fisher argue that the default judgments entered against them should be vacated pursuant to Federal Rule of Civil Procedure Rule 60(b)(4) because they were not properly served with the Summons and Complaint, and therefore the Court's judgments are void.  Rule 60(b)(4) requires a court "to relieve a party from a final judgment if 'the judgment is void.' A judgment is void within the meaning of Rule 60(b)(4) if the court that rendered it lacked personal jurisdiction over the defendant." Budget Blinds, Inc. v. White, 536 F.3d 244, 258 (3d Cir. 2008); Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985) ("A [*9]  default judgment entered when there has been no proper service of the complaint is, a fortiori, void, and should be set aside."). It is well settled that "[p]roper service of process is [] a prerequisite to personal jurisdiction." Grand Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993). Thus, if the Court concludes that service was not proper, it must set aside the default judgments entered against defendants as a matter of law. See Gold Kist, Inc., 756 F.2d at 19; Arpaio v. Dupre, 527 F. App'x 108, 111 (3d Cir. 2013) ("The balancing test used to evaluate Rule 60(b)(1) motions has no bearing on a district court's jurisdiction over defendants, however - if a district court lacks jurisdiction over a defendant, the judgment is automatically void.") (citing Budget Blinds, 536 F.3d at 258); On Track Transp., Inc. v. Lakeside Warehouse & Trucking Inc., 245 F.R.D. 213, 215 (E.D. Pa. 2007) (explaining that "the law is settled that a court lacks discretion under clause (4): if jurisdiction was absent, the court must vacate the judgment as void"). Moreover, "[a]ny doubt should be resolved in favor of the petition to set aside the judgment so that cases may be decided on the merits." Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245 (3d Cir.1951).

Burden of Proof

At the outset, the Court notes that "[n]otice to a defendant that he has been sued does not cure defective service." Grand Entm't Grp., Ltd., 988 F.2d at 492. However, the question of defendants' actual notice of the lawsuit is relevant to who bears the burden of proof in the context of a Rule 60(b)(4) motion seeking vacatur [*10]  of a default judgment based on improper service of process.

Generally, plaintiff bears the burden of establishing subject matter and personal jurisdiction. See Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). "However, Rule 60 is silent, and the caselaw is unclear, on which party bears the burden after a judgment has been entered." On Track Transp., Inc., 245 F.R.D. at 223; see Arpaio, 527 F. App'x at 113 n.2 (declining to address the question, but acknowledging circuit court split on issue of who bears the burden of proof in the context of motions to vacate default judgment under Rule 60(b)(4)).

The Second, Seventh, and Ninth Circuits have held that, if a defendant had actual notice of the original action but delayed asserting improper service of process until after the entry of a default judgment, defendant bears the burden of proving that service was improper. Mortgage Elec. Registration Sys., Inc. v. Patock, No. 2006-190, 2009 WL 1421295, at *2 (D.V.I. May 20, 2009) (citing S.E.C. v. Internet Solutions for Business Inc., 509 F.3d 1161, 1165 (9th Cir. 2007); Burda Media, Inc. v. Viertel, 417 F.3d 292, 299 (2d Cir. 2005); Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 400-01 (7th Cir. 1986)); see also Whitehouse v. Rosenbluth Bros., 32 F.R.D. 247, 248 (E.D. Pa. 1962) (ordering defendants to submit evidence supporting their Rule 60(b) motion that Florida federal court that had entered a judgment against them did not have personal jurisdiction over them).

In contrast, the Eleventh Circuit has held that the burden of proof in establishing personal jurisdiction in a motion to vacate default judgment remains on plaintiff. Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir. 2009). Moreover, "several district courts and at least one commentator have advocated leaving the burden [*11]  on the plaintiff." On Track Transp., Inc., 245 F.R.D. at 223 (citing Sterling Indus. Corp. v. Tel., Inc., 484 F. Supp. 1294, 1296 (W.D. Mich. 1980); Rockwell Int'l Corp. v. KND Corp., 83 F.R.D. 556, 559 n. 1 (N.D. Tex. 1979); Ariel Waldman, Allocating the Burden of Proof in Rule 60(b)(4) Motions to Vacate A Default Judgment for Lack of Jurisdiction, 68 U. CHI. L. REV. 521, 536 (2001)).

The burden-shifting scheme adopted by the Second, Seventh, and Ninth Circuit is inapplicable to this case because the evidence presented is insufficient to demonstrate that defendants had actual knowledge of this lawsuit. See Khaldei v. Kaspiev, No. 10-8328, 2014 WL 2575774, at *7 (S.D.N.Y. June 9, 2014) (observing "that in most cases where courts have shifted the burden to the defendant to disprove service, including Burda, it was conceded or uncontroverted that defendant had knowledge of the underlying suit"), reconsideration denied, No. 10-8328, 2014 WL 3950707 (S.D.N.Y. Aug. 12, 2014).

Defendants Moore and Fisher deny having had any knowledge of plaintiff's second lawsuit against them until on or about February 14, 2014, when they discovered on the Internet that default judgments had been entered against them. (Moore Decl. ¶ 4, Defs.' Mot. to Vacate; Fisher Decl. ¶ 4, Defs.' Mot to Vacate.) In response, plaintiff primarily relies on two facts to establish that defendants had actual knowledge of the action: (1) documents mailed by plaintiff's counsel, the Court, and former defendant, The Agency Group, [*12]  which were sent to defendants Moore and Fisher were not returned by the United States Postal Service as undeliverable; and (2) in 2013, Fisher brought a box sent to him by plaintiff's counsel containing exhibits to plaintiff's Proposed Findings of Fact and Conclusions of Law with respect to the present action to Silverback's office.8 (Evidentiary Hearing Tr., August 4, 2014, 59; Pl.'s Resp. to Defs.' Mot. To Vacate, 7.)

It is based on this record that the Court concludes that the evidence presented does not establish that defendants had actual knowledge of this lawsuit. There is no evidence demonstrating that the mail sent to Moore and Fisher [*13]  was in fact opened and reviewed by them, such that they would have known that the mailings pertained to the present action, rather than plaintiff's previous action against them. Moreover, with respect to Fisher's delivery of the box of exhibits to Silverback, Fisher testified at the evidentiary hearing that he did not look at the documents, but instead gave them to John Phillips, Chief Executive Officer of Silverback. (Evidentiary Hearing Tr., August 4, 2014, 59-60.) The record reveals that there was a meeting between, Fisher, Hamlin, and Phillips at that time, but neither Fisher, nor Hamlin could recall what was discussed at the meeting. (Hamlin's Depo., Pl.'s Ex. 111; Evidentiary Hearing Tr., August 4, 2014, 59.) Furthermore, Fisher testified that Phillips later told Fisher that the documents pertained to plaintiff's first case against him. (Evidentiary Hearing Tr., August 4, 2014, 60, 61.) Finally, Fisher did not recall telling Moore about the box of exhibits. (Id.)

Because the Court concludes there is insufficient evidence in the record to establish that defendants had actual notice of the present lawsuit, it applies "the general rule that 'the party asserting the validity of service [*14]  bears the burden of proof on that issue.'" Mortgage Elec. Registration Sys., Inc., 2009 WL 1421295, at *3 (placing burden on plaintiff to prove validity of service where court was not convinced that defendant had actual notice of the lawsuit) (quoting Grand Entm't Group, Ltd.., 988 F.2d at 493). Thus, plaintiff bears the burden of proving valid service of process on defendants.

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