Nationwide Judgment Recovery, Inc. v. Song

Filing 28

ORDER denying 5 MOTION to Vacate 4 FIRST LETTER MOTION for Conference re: 3 Proposed Abstract of Judgment, 1 Registration of Foreign Judgment,, 2 Miscellaneous Cover Sheet, Abstract of Judgment Issued addressed to Judge Joh n G. Koeltl from ROBERT ADINOLFI dated May; denying 6 MOTION to Vacate 5 MOTION to Vacate 4 FIRST LETTER MOTION for Conference re: 3 Proposed Abstract of Judgment, 1 Registration of Foreign Judgment, 2 Miscellaneous Cover Sheet, Abstract of Judgment Issued addressed to Judge John G. Koeltl from, MOTION to Vacate Arbitration. Signed by Senior Judge Graham Mullen on 8/2/2022. (Pro se litigant served by US Mail.)(ef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22MC116-GCM
NTIONWIDE JUDGMENT RECOVERY,

)
)
Plaintiff,
)
)
v.
)
)
SHENG FENG SONG,
)
)
Defendant.
)
__________________________________________)

ORDER

This matter is before the Court upon Net Winner Sheng Feng Song’s Motion to Vacate
pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. The Motion was originally
filed in the United States District Court for the Southern District of New York on May 21, 2021.
The successor in interest to the Final Judgments entered against Net Winners, National Judgment
Recovery, responded to Mr. Song’s motion and no Reply was filed. The matter was properly
transferred to this Court on July 5, 2022.
Mr. Song seeks to have the Final Judgment issued against him five years ago set aside,
claiming that this Court lacks personal jurisdiction. After the Net Winner Class in this case was
certified, this Court entered a Process Order designed to (1) provide Net Winners with notice that
they were members of the Net Winner class; and (2) to provide Net Winners with the opportunity
to contest the amount of their winnings. See Bell v. Disner, 3:14cv91, Doc. No. 153 at 2. The
Process Order required the Receiver to provide notice to all persons that he believed were part of
the Net Winner Class with notice “by email to the email address provided by the net winner in
connection with any account” with ZeekRewards “as well as any other email address that has
been provided by the net winner.” Id. at 2, ¶ 3. “In the event that the notice [could not] be

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delivered to any email address provided by the Net Winner,” the Receiver was required to “send
a letter to the last known physical address of the Net Winner informing the Net Winner of the
proceedings and the availability of the amount of his or her Net Winnings.” Id. The Receiver was
also required to “post a link on the Receivership website” that allowed Net Winners to access all
this information. Id. All Net Winners were provided with an opportunity to contest their
membership in the Net Winner class as well as the Receiver’s calculation of their Net Winnings.
Id. at 3, ¶ 5. The Fourth Circuit approved of the Process Order, concluding that it “provided a
process by which damages could be individually challenged and litigated.” Bell v. Brockett, 922
F.3d 502, 514, n. 8 (4th Cir. 2019).
Rule 60(b)(4) permits a “void” judgment to be set aside upon a showing of extraordinary
circumstances. See Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). “An order is ‘void’ for
purposes of Rule 60(b)(4) only if the court rendering the decision lacked personal or subject
matter jurisdiction or acted in a manner inconsistent with due process of law.” Wendt v. Leonard,
431 F.3d 410, 412 (4th Cir. 2005). This is an extremely high standard, and relief may be granted
“only when there is a total want of jurisdiction and no arguable basis on which [the court] could
have rested a finding that it had jurisdiction.” Id. (quoting Nemaizer v. Baker, 793 F.2d 58, 65
(2d Cir. 1986)).
This Court entered a final judgment against Mr. Song, after notice, as a member of a
certified defendant Net Winner class. Courts throughout the country have held that a showing of
personal jurisdiction as to every class member is not necessary, so long as other procedural
safeguards regarding notice were adhered to. See, e.g. National Fair Housing Alliance v. A.G.
Spanos Const., Inc., 542 F. Supp. 2d 1054, 1065 (N.D. Cal. 2008) (“it is well settled that
jurisdiction is not needed over absent members of a defendant class”); U.S. v. Trucking Emp.,

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Inc., 72 F.R.D. 98, 99–100 (D.D.C. 1976); In re Integra Realty Resources, Inc., 354 F.3d 1246,
1261, 1265, (10th Cir. 2004); Weinman v. Fidelity Capital Appreciation Fund, 2008 WL 753958
*5 (N.D. Ill. 2008). In addition, Mr. Song, represented by class counsel, waived the issue of
personal jurisdiction by failing to make the argument to this court or raise it on appeal. See Bell,
922 F.3d at 512 n. 5. Accordingly, Mr. Song may not challenge personal jurisdiction in this
collateral attack.
IT IS THEREFORE ORDERED that Mr. Song’s Motion to Set Aside Judgment is hereby
DENIED.
Signed: August 2, 2022

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