Ramsay v. Sanibel & Lancaster Insurance, LLC et al

Filing 39

OPINION AND ORDER: The Court DENIES IN PART and TAKES UNDER ADVISEMENT IN PART Defendants' Petition for Rehearing/Reopening of Case, ECF No. 32. To the extent Defendants seek relief in such motion under Federal Rules of Civil Procedure 60(b)(3 ) and 60(d)(3), the Court DENIES Defendants' motion. However, to the extent Defendants' motion contends that the judgment against them is void under Rule 60(b)(4), the Court TAKES UNDER ADVISEMENT such motion, pending an evidentiary he aring. The Court DIRECTS Defendants to confer with Plaintiff's counsel and then contact the Clerk of the Court to schedule an evidentiary hearing to address the parties' factual dispute over whether Defendants were validly served with proce ss. The Court ADVISES Defendants that they have fourteen (14) days after the entry of this Opinion and Order to schedule such a hearing and that, if they fail to do so, the Court will resolve their motion on the papers currently before it. The Court TAKES UNDER ADVISEMENT Plaintiff's Motion for Execution Sale, pending the resolution of Defendants' Rule 60(b)(4) motion. re 32 MOTION Petition for ReHearing/Reopening of Case filed by Roberta L. Garcia-Guajardo, Sanibel & Lancaster In surance, LLC, Steven Guajardo. 37 MOTION Execution Sale re 27 Writ Issued filed by Christopher Ramsay. Copy mailed to Pro Se Defendants at address of record and to counsel of record on 12/15/2014. Signed by District Judge Mark S. Davis on 12/15/2014 and filed on 12/15/2014. (bgra)

UNITED

STATES

DISTRICT

EASTERN DISTRICT

OF

FILED

COURT

VIRGINIA

DEC 1 5 2014

Norfolk Division

CHRISTOPHER RAMSAY,

CL EHK, US DISTRICT COURT
'.:; IFOLK. VA

Plaintiff,
Civil

v.

SANIBEL &

LANCASTER INSURANCE,

ROBERTA L.

J.

2:llcv207

LLC,

GARCIA-GUAJARDO,

STEVEN GARCIA-GUAJARDO,
GARY

Action No.

and

HUNTER,

Defendants.

OPINION

This

matter

is

before

AND

ORDER

the

Court

Rehearing/Reopening of Case, ECF No. 32,
2014

by

Steven

Roberta
Guajardo

Guajardo,

37,

on

("Plaintiff").1

from

Garcia-Guajardo

("Guajardo"

"Defendants")

filed

Petition

L.

for

4,

as

Court

a

Petition

will

("Garcia-Guajardo")

motion

for

by

construe
of

for

filed on September 19,

collectively

2014

Rehearing/Reopening

Judgment")

a

with

and a Motion for Execution Sale,

November

The

and,

on

Case

relief

and

GarciaECF No.

Christopher

Ramsay

Defendants'

pro se

("Motion
from

for

judgment

Relief
under

1 Defendants purported to file their motion on behalf of a third
defendant

in
Insurance").

this action,
Sanibel Lancaster Insurance,
LLC
("S&L
However, S&L Insurance, as a limited liability company,

"cannot appear pro se,

even if represented by one of its members,"

and

must be represented by an attorney.
See Vick v. Wong, 263 F.R.D. 325,
328 n. 1 (E.D. Va. 2009) (citing United States v. Hagerman, 545 F.3d
579, 580-81 (7th Cir. 2008) ; Lattanzio v. Comm. on Massage Therapy
Accreditation,

481 F.3d 137,

138,

140

(2d Cir.

2007)).

Given that S&L

Insurance is not represented by an attorney in this matter, the Court
will not consider it as a movant with respect to this motion.

Federal

Rules

60(d)(3).

of

Civil

Procedure

60(b)(3),

60(b)(4),

After examining the briefs and the record,

determines that oral
Rule 60(d)(3)

argument on Defendants'

Rule

and

the Court

60(b)(3)

and

motions is unnecessary because the facts and legal

contentions are adequately presented and oral argument would not
aid in the decisional process.

Fed.

Loc.

a

R.

60(b)(4)
and

7 (J) .

The

motion

TAKES

is

UNDER

need

for

addressed

ADVISEMENT

R. Civ.

hearing

below.
IN

The

PART

P. 78(b); E.D.

on

Defendants'

Court

DENIES

Defendants'

Va.
Rule

IN

PART

motion.

The

Court TAKES UNDER ADVISEMENT Plaintiff's motion.
I.

On April 12,

FACTUAL AND PROCEDURAL

2011,

HISTORY

Plaintiff filed an action in this Court

alleging causes of action against Defendants for unpaid overtime
under

the

Fair

Labor

Standards

Act,

29

U.S.C.

§§

201-19

("FLSA"), wrongful discharge in violation of public policy under
Virginia

law,

No.

Returns

1.

and breach of
of

service

contract under Virginia law.
indicate

that Guajardo and Garcia-

Guajardo were served with process on May 4,
On May 16,

2011,

2011.

ECF No.

S&L Insurance was served with process

its registered agent.

ECF No. 4.

ECF

On May 26, 2011,

3.

through

the Clerk of

the

Court entered default against Garcia-Guajardo and Guajardo.

ECF

No.

8.

On

May

31,

2011,

default against S&L Insurance.

the

Clerk

ECF No.

10.

of

the

Court

entered

Plaintiff moved for

default judgment on August
No.

1,

2011.

Mot.

for Default J.,

ECF

11.

On March 28,

2012,

favor of Plaintiff:

this

Court entered default

judgment

on his FLSA claim against Defendants,

on his

wrongful discharge claim against S&L Insurance and Guajardo,
on his breach of contract claim against S&L Insurance.
and Order,

ECF No. 17.

in

and

Opinion

In its March 28, 2012 Opinion and Order,

the Court severed the wrongful discharge claim against GarciaGuajardo and stayed such claim pending resolution of VanBuren v.
Grubb,

733

S.E.2d 919

(Va.

2012).

Following the Supreme Court

of Virginia's decision in VanBuren,

entered

judgment

against

on March 27, 2013,

Garcia-Guajardo,

Plaintiff's wrongful discharge claim.

Plaintiff

judgment

asserts

entered

against

resisted collection."

at 2,

ECF No. 33.

submitted
Suffolk

appear

two
that

for

Nos.

33-1,

City

of

"has

pursued

[Defendants],"

collection

but

Opp'n Mot.

from

debtor's

the

that

Circuit

that

In one such order,

found

that

Court

See
the

they

of

had

"have

from J.

the

ex.

Circuit

the

Plaintiff has

twice

id.

Garcia-Guajardo

on

on

for Relief

Garcia-Guajardo

interrogatories.

well,

24.

In support of such contention,

indicate

Suffolk

he

PL's Br.

orders

33-2.

that

ECF No.

as

the Court

City

of

failed

to

1 &

2,

ECF

Court

of

the

been

properly

served with both debtor's interrogatories and a motion to show

cause as to why she

failed to appear for such interrogatories.

Order on Motion to Show Cause,

20,

2013).

Case No.

In a subsequent order,

CM13-1020

(Va. Cir. Nov.

the Circuit Court found that

Garcia-Guajardo's failure to appear for debtor's interrogatories
was "willful and without good cause" and that "she intentionally
obstructed the proceedings
on Motion
Feb.

24,

for Order of

to

frustrate their purpose."

Contempt,

Case

No.

CM13-1020

Order

(Va.

Cir.

2014).

On September 19,

injunction

for

relief

2014,

of

Defendants moved the

the

judgment"

and

Court

for

"for an

rehearing,

as

well as for sanctions against Plaintiff and Plaintiff's counsel.
Mot.

for

appears

Relief

that

Plaintiff

from

J.

at

3-4.

they seek relief

committed

misrepresentations

See id. at 3.2

to

fraud
the

From

Defendants'

motion,

from judgment on the basis

upon

Court,

the

Court

presumably

in

by

his

Complaint.

Defendants also seek relief from judgment on the

Applying a

required

because

Erickson v.

that

making

basis that they were not properly served with process.

3.

it

liberal
of

Pardus,

construction to Defendants'

Defendants'
551 U.S.

89,

pro
94

se

status,

Id. at

pleadings,
see,

e.g.,

(2007) , to the extent that

Defendants seek to set aside this Court's judgment on the basis

2 In Defendants'
Plaintiff's race.

motion,

without

explanation,

From the context of Defendants'

they

motion,

refer

to

Defendants'

reference to Plaintiff's race strikes the Court, at minimum, as tinged
with a racially discriminatory undertone.
The Court ADMONISHES
Defendants that such reference to race is grossly inappropriate and
will not be tolerated.
If Defendants file any future pleading
containing
such a
reference,
the
Court
will
not
hesitate
to
appropriately sanction them.

of fraud,
Rule

the Court will construe their motion as a motion under

60(b)(3)

and

Rule

60(d)(3).

Given

that

Defendants

argue

that the Court's judgment is void due to insufficient service of

process, the Court will also construe their motion as a motion
under Rule 60(b)(4).

On October 3,
to

Defendants'

motion
not

under

seek relief

response

to

in

Plaintiff

is

contends

untimely

that

because

PL's Br.

to

Opp'n Mot.

Defendants

Defendants'

argues

that

60(d)(3)

October

27,

the

entry of

from J.

motion,

did

at

2.

Plaintiff

allegations do not present a sufficient

relief

response

Rule

for Relief

from

to

judgment

Defendants'

Defendants

under

Rule

were,

in

2014,

Plaintiff's opposition.

Defendants

Ans.

Rule

60(d)(3).

60(b)(4)
fact,

process "at the address listed on their paper."
On

Defendants'

from judgment within one year of

warrant

Finally,

Plaintiff

60(b)(3)

argues that Defendants'
basis

Plaintiff filed his brief in opposition

motion.

Rule

such judgment.

In

2014,

motion,

served

with

Id. at 3.

filed

to PL's Filing,

a

reply

to

ECF No. 36.

In

response to Plaintiff's argument that their motion is untimely,
Defendants cite provisions of the Code of Virginia governing the
tolling

that

such

provisions apply because Garcia-Guajardo was incapacitated.

Id.

at

2.

from

of

the

statute

Defendants
the

process

of

limitations

also argue
server

who

that

and

contend

they never received process

attempted

to

serve

process

on

Garcia-Guajardo at

her home.

request that the Court

Id.

"give

at

special

master

property

at

Virginia"
37.

and

4301

for

sale

Newport

a

asserts

special

Defendants

jail time along with

Id. at 3-4.

Plaintiff moved for appointment of

public

a/k/a

Mot.

that

master

at

Ave,

("the property").

Plaintiff

appoint

2014,

Finally,

[Plaintiff]

his attorney" and seek compensation.
On November 4,

3.

69

to

of

Maryland

for

Rule

auction

Ave,

a

this

judicial

real

Norfolk,

Execution sale,
authorizes

conduct

"the

a

ECF No.
Court

sale

of

to

the

property because such Rule "directs that State procedure must be
followed
sale of

execution

on

a debtor's

equity and court
sell

the

procedures"

real

property

appointment

debtor's

of

property.

and

Virginia

through a

law authorizes

creditor's

bill

in

a commissioner in chancery to

See

id.

at

2.

In

his

motion,

Plaintiff alleges that the property is subject to: a March 28,
2005

deed

$382,183.59

of

trust

federal

to

secure

tax

a

$220,000

lien recorded

promissory

on March

3,

2009,

$13,533.81 federal tax lien recorded on February 3,
Other than such liens

and encumbrances,

Defendants own the property.

the

Court:

Company,

Id. at 3.

"order David Weeks,

LLC,

Noteholder,

within twenty-one days of
to participate herein;"

Trustee,

Plaintiff

a

and

2010.

asserts

a

Id.
that

Plaintiff requests that

and New York Mortgage

to appear and respond

service of

note,

to

this

Motion

same or waive their right

"order the United States to appear and

respond to this Motion within sixty days of service of the same

upon it or waive its right to participate herein;" and appoint a
special master to determine "[t]he identities of the owners of
the
of

property,"

"[t]he liens against

their priority,

the property and the order

including tax liens,"

"[t]he fee simple and

annual rental value of the property," and "[w]hether all parties

in interest are properly before the Court."
Plaintiff

requests

satisfy Plaintiff's

that

the

Court

judgment,

if

order

the

Id. at 3.
the

rents

property

from

cannot satisfy such judgment within five years,
are

sufficient

years,

to

satisfy

Plaintiff's

sold

to

such property

or if such rents

judgment

within

five

order that those rents be applied to the satisfaction of

Plaintiff's
Defendants

judgment.
to

respond

See
to

id.

at

Plaintiff's

4.3
motion

The

deadline

for

for

execution

has

passed and Defendants have not responded thereto.

the

Finally,

motions

currently

before

the

Court

are

Accordingly,

now

ripe

for

disposition.4

3 Plaintiff's request appears to comport with the requirements
under Section 8.01-462 of the Code of Virginia, which provides:
"Jurisdiction to enforce the lien of a judgment shall be in equity. If
it appear [sic] to the court that the rents and profits of all real
estate subject to the lien will not satisfy the judgment in five
years, the court may decree such real estate, or any part thereof, to
be sold, and the proceeds applied to the discharge of the judgment."
Va.

Code Ann.

§ 8.01-462.

40n December 1, 2014, Defendants moved for summary judgment, ECF
No. 38, however, such motion is not ripe for disposition.

II.

STANDARD OF REVIEW

A.

Federal

Rule

of

Civil

Rule 60(b)

Procedure

60(b)

permits

a

party

seek relief "from a final judgment, order, or proceeding."
R.

Civ.

P.

60(b).

A

court's

proceeds in two stages.

analysis

First,

of

that

his

motion

defense to the action,

is

timely,

(quoting

Park

(4th Cir.

1987));

(4th Cir.

Bd.

Corp.

2011)

60(b)

motion

that

tt,a moving party must
he

has

a

meritorious

and that the opposing party would not be

unfairly prejudiced by having the
Credit Union Admin.

Rule

Fed.

a court considers whether the

movant has met three threshold conditions:
show

a

to

v.

v.

Gray,

judgment set aside.'"

1 F.3d 262,

Lexington

Ins.

see also Aikens v.

264

Co.,

812

Ingram,

652

(citing Nat'l Credit Union,

Nat' 1

(4th Cir.

F.2d

1993)

894,

896

F.3d 496,

501

1 F.3d at 264).5

Once a movant has demonstrated the three threshold requirements,
Federal

which a

Rule

of

court

Credit Union,

Civil

Procedure

may grant

relief

1 F.3d at 266.

60(b)

from a

lists

the

final

grounds

under

judgment.

Nat'1

These grounds are:

(1)
mistake,
inadvertence,
surprise,
or excusable
neglect;
(2)
newly discovered evidence that,
with
reasonable diligence, could not have been discovered
in

(3)

time

fraud

to

move

for

(whether

a

new

trial

previously

under

called

Rule

5 9(b);

intrinsic

or

s The Fourth Circuit has also noted a fourth threshold showing,
"exceptional circumstances," in some instances.
Nat'l Credit Union, 1
F.3d at 264 (quoting Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.
1984)).
8

extrinsic),
misrepresentation,
or misconduct by an
opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is
no longer equitable;
justifies relief.
Fed.

R.

60(b)

Civ.

P.

"must

60(b).

clearly

satisfaction of

or

The

(6)

any

party

establish

seeking

the

the district court

other

relief

grounds

3

(4th Cir.

1992)

that

under

therefor

Rule

to

the

. . . and such grounds must

be clearly substantiated by adequate proof."
F.2d 1,

reason

In re Burnley,

(internal citations

omitted).

988

Relief

under Rule 60(b) is an "extraordinary remedy" that is to be used
only in "exceptional circumstances."
608

F.2d

Perry,

96,

102

292 F.R.D.

F.2d at

102).

appropriate,

Compton,

316, 320

see

also

(E.D. Va. 2013)

final judgments,
and

the

Ebersole

v.

Kline-

(quoting Compton,

608

F.2d
Co.

cert, denied,

at
v.

expressed in the

incessant

that justice be

Bankers Mortg.
1970),

1979);

608

the court "must engage in the delicate balancing of

judicata,

conscience

Cir.

Co.,

To determine whether such exceptional relief is

'the sanctity of
res

(4th

Compton v. Alton S.S.

done

102

in

command

light of

(alteration

United States,

399 U.S.

927

in

423

of

[a] 11

doctrine of
the

the

original)

F.2d 73,

court's

77

facts."
(quoting

(5th Cir.

(1970)).

The Fourth Circuit has held that

a

motion under Rule

60(b)

is addressed to the sound discretion of the trial judge and will
not

be

disturbed on appeal

save

for

a

showing of

abuse.

See

Aikens,

at

652 F.3d at 501.

issue,

over

increasingly

the

808,

811

(4th Cir.

R. Miller,

(noting

years

liberal

Fiberglass Coatings,

"However,

where default judgments are

[the Fourth

view

of

Inc.

v.

1988);

Circuit]

60(b)

Rule

.

.

has
.

"[t]he

granting Rule

60(b)

default judgments.

an

Augusta
843

F.3d

see also Charles Alan Wright & Arthur

cases

calling

motions,
There

."

Fodor Contracting Corp.,

11 Federal Practice & Procedure § 2857

that

taken

for

for

the

great

most

(3d ed.

2012)

liberality

part,

have

in

involved

is much more reason for liberality in

reopening a judgment when the merits of the case never have been
considered than there

is

trial on the merits.").

pit

the

merits

court's
against

strong

when

the

This

is so because

preference

countervailing

judgment

for

comes

in

preserving the court's ability to control its
v.

M.L.

Mktg.

Augusta,

843

Co.,

F.3d at

116

F.3d

811).

91,

94

(4th

Nonetheless,

fault,

dominate[s]
order

to

original)

the

[court's interest

cases

finality

docket."

Cir.

1997)

on
and

the
in

Heyman
(citing

in considering a Rule

60(b) motion to set aside a default judgment,
is at

full

"default judgments

deciding

interests

after a

"*[w]hen the party

in finality and efficiency]

and the party must adequately defend its conduct in
show

excusable

(quoting Augusta,
B.

neglect.'"

Id.

843 F.3d at 811).
Rule 60(d)

10

(alterations

in

Federal Rule of Civil Procedure 60(d)(3)

provides that Rule

60 "does not limit a court's power to . . . set aside a judgment
for fraud on the court."
exercise

its

inherent

Thus,

such clause "permits a court to

equitable

powers

to

obviate

judgment after one year for 'fraud on the court.'"
Fox v.

Elk Run Coal Co.,

However,
relief
Glass

"ordinary cases
under

Co.

Rule

v.

(1944)).

on

fraud"

60(d)(3).

not

plot

the

of

to

deceive

public

at

Co.,

only must

135-36

136

interest

in

a

way

be applied "only when parties attempt
of subversion of the legal process
expect

process.'"

Id.

Bhd.

of

to

675

fabricated

F.2d

by

1349,

.

675 F.2d at 1357).

situations
influence

such as
exerted

integrity of

the

Rather,

'bribery of
on

the

court

a
by

it

must

fraud

an

also

between

Rule 60(d) should

the

1357

.

normal

Express,

.

not

Id.

cannot

adversary

Inc.

(4th

[are]

v.

Cir.

Int'l

1982)).

adequate

to

(citing Great

"the doctrine is limited to

judge
an

or

juror,

attorney,

court and its ability to
11

246

involve

those that we

permit relief as fraud on the court . . . ."
Coastal,

244,

'the more egregious forms

Coastal

evidence

that

for

Hazel-Atlas

238,

but

2014).

a basis

court

Id.

. . .,

exposed

(quoting Great

Teamsters,

"Perjury and

be

the

judiciary,

individual parties generally does not."

necessarily

U.S.

fraud on

the

(4th Cir.

(citing

322

final

Fox ex rel.

do not provide

Id.

Hartford-Empire

"Thus,

intentional
touch

739 F.3d 131,

a

or
in

improper

which

the

function impartially

is directly impinged.'"
1356).

Id.

Unsurprisingly,

(citing Great Coastal, 675 F.2d at

"[p]roving

fraud

on

the

presents ... a very high bar for any litigant."

court

thus

Id. at 136-

37.

C.

Federal Rule of

Rule

69

Civil Procedure 69 governs the enforcement

of money judgments.

Such Rule provides in relevant part:

A money judgment is enforced by a writ of execution,
unless the court directs otherwise. The procedure on
execution--and in proceedings supplementary to and in
aid of judgment or execution--must accord with the
procedure of the state where the court is located, but
a federal statute governs to the extent it applies.
Fed.

R.

that,

Civ.

P.

as a general rule,

such Rule

Virginia law governs

execution in this Court.
is controlling,

Accordingly,

69(a)(1).

However,

establishes

the procedure on

an applicable federal statute

notwithstanding Virginia law.

See id.;

see also

12 Wright & Miller, supra, § 3012 (3d ed. 2014) .
III.

A.

As
motion

stated
appears

to

based

on

60(d)(3)
based

above,

on

Defendants'

when

seek

under

alleged

to

Rule

60(b) (3)

fraud

and

Rule

60(b)(4)

motion

12

not

Rule

and

served

fraud grounds

were

Defendants'

properly

the

Defendants

construed,

The Court will first consider Defendants'

with process.

that

Motion

liberally

relief

Plaintiff's

allegations

with respect

DISCUSSION

for relief.

The Court will

then turn to Defendants'

as

a

show

threshold

that:

defense,

to

relief

their

and

Rule 60(b)(4)

motion

Plaintiff

under

Rule

is

not

As stated above,

60(b)(3),

timely,

would

motion.

they

be

Defendants

have

unfairly

a

must

meritorious

prejudiced

by

having the judgment against Defendants set aside.
Defendants'

Rule

60(b)(3)

motion

fails

because

Defendants

have not satisfied the threshold element of timeliness.

Rule 60

imposes mandatory time restrictions on a Rule 60(b)(3) motion by
providing that "[a]

motion under Rule 60(b) must be made within

a reasonable time-and for reasons

(1),

(2), and (3)

no more than

a year after the entry of the judgment or order or the date of
the proceeding."
this

case,

Fed. R. Civ. P. 60(c)(1) (emphasis added).

Defendants

seek

relief

from

judgment

based

In
on

Plaintiff's alleged fraud and, therefore, Rule 60(c)(1) mandated

that Defendants file any Rule 60 motion on that basis "no more
than

a

entered

year

after

judgment

the

entry

against

of

judgment."

Guajardo

on

Here,

Plaintiff's

the

Court

FLSA

and

wrongful discharge claims on March 28, 2012, ECF No. 18, against
Garcia-Guajardo on March 28,
FLSA claim,

ECF No.

2012 with

24.

Thus,

to Plaintiff's

18, and against Garcia-Guajardo on March 27,

2013 with respect to Plaintiff's
No.

respect

Rule

60(c)(1)

wrongful discharge claim,
required

Guajardo

and

ECF

Garcia-

Guajardo, with respect to Plaintiff's FLSA claims, to file their
Rule 60(b)(3)

motions no later than March 28,

13

2013.

Similarly

such rule mandated that Garcia-Guajardo

motion

challenging

the

judgment

against

discharge claim no later than March 27,
the

instant

motion

on

file

September

19,

any Rule

her

on

2014.
2014.

the

60(b)(3)

wrongful

Defendants'
Thus,

filed

Defendants'

motions under Rule 60(b)(3) are DENIED as untimely.6
Defendants'

assuming

the

Rule

truth

60(d)(3)

of

the

motion

allegations

fails

in

because,

Defendants'

even

motion,

such allegations are not sufficient to demonstrate fraud on the
court.

At

"blatantly
However,

most,

lied"

the

fabricated

Defendants

to

the

Fourth

fraud on the Court.

Defendants

have

fraud that,

not

Court.

Circuit

evidence,"

have

has

though

Ans.

to

reprehensible,

that

that

PL's

underscored

Great Coastal,

alleged

alleged

that
do

Filing

Plaintiff

not

have

not

demonstrated

that

To

the

3.

as

Moreover,

acts

of

"directly impinge" on "the
See Fox,

the Court concludes that Defendants

relief

from

based on fraud on the court under Rule
Rule 60(d)(3)

qualify

committed

integrity of the court and its ability to function."
Therefore,

at

"perjury and

675 F.2d at 1357.

like bribery of a judge,

739 F.3d at 136.

Plaintiff

judgment

60(d)(3)

is

warranted

and Defendants'

motion is DENIED.

extent

that

Defendants

contend

that

they were

not

properly served with process because the process server did not

6 The Court need not assess the remaining two threshold elements
or the
second stage of
the
Rule 60 analysis in light of
determination that Defendants' Rule 60(b)(3) motions are untimely.
14

its

leave

process

with

Garcia-Guajardo,

their motion as a Rule 60(b)(4)

the

motion.

Court

has

construed

Such rule provides that

the Court may "[o]n motion and just terms,

. . . relieve a party

. . . from a final judgment . . . for the following reaso [n] :
the judgment is void."
60

is

phrased

discretion

to

Philos Techs.,
Cir.

2011)

Domestic

in

permissive

refuse
Inc.

v.

F.3d 389,

394

a

court

Although Rule
does

not

a

void

judgment.

Philos & D,

Inc.,

645 F.3d 851,

omitted);

Hukill

542

F.3d

794,

v.
797

(5th Cir.

supra,

2001)

e.g.,

855

Native

(10th

(7th
Am.

Cir.

2008)

Keaty &

Keaty,

(citation omitted);

§ 2862

have

See,

Okla.

Harper Macleod Solicitors v.

11 Wright & Miller,
" [t] here

terms,

vacate

Coal. ,

(citation omitted);
260

to

(citations

Violence

Fed. R. Civ. P. 60(b)(4).

(3d ed. 2012)

see also

(stating that

is no question of discretion on the part of the court

when a motion is under Rule 60(b)(4)").

motions under Rule 60(b),

Moreover,

unlike other

a party may seek to set aside a void

judgment even years after the court has entered such judgment.7

7 See, e.g., Philos, 645 F.3d at 857 (citations omitted) (stating
that a "collateral challenge to jurisdiction can be brought at any
time"); Gschwind v. Cessna Aircraft Co., 232 F.3d 1342, 1345 (10th
Cir. 2000) (holding that a Rule 60(b) (4) motion may be made at any
time); Sea-Land Serv. Inc. v. Ceramica Europa II, Inc., 160 F.3d 849,
852

(1st Cir.

1998)

(same);

Meadows

v.

Dominican Republic,

817 F.2d.

517, 521 (9th Cir. 1987) (same); see also James Wm. Moore et al., 12
Moore's Federal Practice § 60.44[5][c]; 11 Wright & Miller, supra, §

2862 (stating that" there is no time limit on an attack on a judgment

as void"); cf^ Foster v. Arletty 3 Sari, 278 F.3d 409, 414 (4th Cir.
2002)
(citations
omitted)
(noting
that
"[o]ther
circuit
addressing the issue have concluded that a motion to vacate
15

courts
a void

Similarly,
not

to prevail on a Rule 60(b) (4)

establish the

Bond Shipyard Inc.

Cir.

1988)

under

existence of

a

motion,

meritorious

v. M/V Caribbean Wind,

the movant need

defense.

Bludworth

841 F.2d 646,

649 (5th

(noting that a court must set aside a void judgment

Rule

60(b) (4)

regardless

meritorious defense);

whether

11 Moore et al.,

the

supra,

movant

has

a

§ 60.44 [5] [b]; 11

Wright & Miller, supra, § 2862.
For the purposes of Rule 60(b)(4),
if the court rendering the

a judgment is void "only

decision lacked personal or

subject

matter jurisdiction or acted in a manner inconsistent with due
process of law."
2005)
F.3d

Wendt v. Leonard,

431 F.3d 410, 412

(citing Eberhart v. Integrated Design & Constr.,
861,

construe

871

the

(4th

Cir.

concept

of

1999)).

a

However,

'void'

order

courts

under

(4th Cir.
Inc.,

167

"narrowly

Rule

60(b)(4)

precisely because of the threat to finality of judgments and the
risk that litigants
an appeal process

(citations

such

Armco v.

(4th

Nonetheless,

it without
defendant

1984)

pursuant

was

(holding

to

Rule

to

a

to circumvent

follow."

judgment

Id.

is

at

void

412-13

when

a

personal jurisdiction over a defendant
not

Penrod-Stauffer Bldg.

Cir.

judgment

they elected not

omitted).

court enters
because

. . . will use Rule 60(b)(4)

validly

Sys.,

that

60(b)(4)

limit.").
16

Inc.,

"[s]ince

contains

served
733

with

process.

F.2d 1087,

there

little,

was

if

no

any,

1089

valid

time

service of process,

the district court was without jurisdiction

of the defendant,

and the default judgment was void.");

see also

12 Moore et al.,

supra,

judgment

may

void

...

be

theoretical

power

defendant,

the

§ 60.44 [3]
because,

to

although

exercise

defendant

(stating that

personal

was

not

the

"[a]

court

had

jurisdiction

adequately

the

over

served

a

with

process.").
Although

the

Fourth

Circuit

has

not

addressed

the

issue,

other courts of appeals have split on which party has the burden
of

proof

motion,

of

establishing,

that

a

court

for

the

purposes

lacked personal

default judgment.

See Arpaio v. Dupre,

4

(unpublished)

(3d Cir.

issue) .

2013)

Some

courts

of

of

a

Rule

jurisdiction

to

enter

a

527 F. App'x 108, 113 n.

(noting a circuit

appeals

60(b) (4)

have

held

that

split on the
"a

defendant

moving to vacate a default judgment based on improper service of
process,

where

the

defendant had actual notice of

the

original

proceeding but delayed in bringing the motion until after entry
of

default

did not

judgment,

occur."

F.3d 1161,
417

1163

F.3d 292,

Ltd. , 804

Internet

(9th Cir.

2007);

299

F.2d 398,

burden

of

the burden of

SEC v.

least one court of
the

bears

(2d Cir.
401

2005);

(7th Cir.

proving

Solutions

for Bus.

Burda Media,
Bally Exp.
1986).

that

service

Inc.,

509

Inc.

v.

Viertel,

Corp.

v.

Balicar,

On the other hand,

at

appeals has held that a plaintiff maintains

proving

that

personal

17

jurisdiction

is

present,

even

under

Rule

60(b)(4).

S.A. , 558 F.3d 1210,
App'x at 113 & n.4
the

parties

return

of

service,

raised

the

Pueblo

De

of

proof

issue

as a general principle,

constitutes

prima

can

be

overcome

v.

Jones-Bey,

facie

only by
415

strong

F.3d

1394, 1398 (7th Cir. 1993) ).8

proof

of

establish

"'[a]

evidence

Lora,

in

the

signed

of

valid

and

convincing

752

(7th Cir.

748,

(quoting O'Brien v. R.J. O'Brien & Assocs.,

60(b)(4),

Bahia

2009); cf^ Arpaio, 527 F.

burden

Homer

evidence.'"

2005)

1217 (11th Cir.

However,

service

which

v.

(placing burden on plaintiff but noting that

had not

district court).

Oldfield

Inc., 998 F.2d

Therefore, in the context of Rule

regardless whether the plaintiff bears the burden of

demonstrating
personal

sufficient

jurisdiction

service

over

a

of

process

defendant,

once

to
the

plaintiff has submitted a signed return of service, the burden
shifts

to

the

defendant

to demonstrate

that

it

did not

receive

valid service of process.
In this case,

that Defendants
has

filed

a

Plaintiff has submitted prima facie evidence

were properly served with process.

return

of

service

and

affidavit

8 Accord Blair v. City of Worcester,
2008)

(citations

omitted);

see

also

1

of

Plaintiff

service

that

522 F.3d 105, 112 (1st Cir.

Moore

et

al.,

supra,

§

4.103

(stating that " [w]hether filed by a marshal or by the server, proof of
service filed with the court establishes prima facie evidence that
service was properly made."); 4B Wright & Miller, supra, § 1130 (3d
ed. 2002 & Supp. 2014) (stating that " [a]lthough the return of service
of the summons and the complaint is strong evidence of the facts
stated therein, it is not conclusive and may be controverted upon a
showing that the return is inaccurate."); 5B id. § 1353 (3d ed. 2004).
18

state

that

a

private

process

Guajardo with process at

May 4, 2011.
a

return

of

service

and

affidavit

sufficient

process under Rule 4(e) (2) (B)
8.01-296(2)(a).

establish

Similarly,
of

prima

state

that

a

through leaving process

or Rule 4(e) (1)

evidence

that

to establish valid service of

Accordingly,

facie

Plaintiff has filed

service

server served Guajardo

with Garcia-Guajardo,

served Garcia-

the address listed in the summons on

ECF No. 3 at 4-6.

private process

§

server personally

such

that

and Va. Code Ann.

returns

service

were

Defendants

of

properly

served with process.

In response,
they were

not

in their papers,

validly

Defendants have alleged that

served with process

because

server did not leave process with Defendants.

Thus,

the

process

it appears

to the Court that a factual dispute exists between the parties

regarding whether Defendants were

validly served with process.

In light of the prima facie showing of valid service of process
that Plaintiff has made through submission of returns of service
as

to both Defendants,

the Court notes

that Defendants now have

the burden of establishing "by strong and convincing evidence"
that

they were

F.3d at 752.

not

properly

served with process.

best

to

415

At this stage, Defendants have not presented any

evidence that service of process was
Defendants'

Homer,

pro se status,

provide

the

Defendants

improper.

However,

given

Court believes that it would be

with
19

an

opportunity

to

present

evidence

regarding

process.

The

whether

they

were

properly

served

with

Court proposes conducting an evidentiary hearing

to resolve this issue.9

As it is currently Defendants' burden to

present evidence that they were not validly served with process,
the

Court

counsel

will

and

DIRECT

then

Defendants

contact

evidentiary

hearing.

Defendants'

Rule

hearing.

The

the

The

60(b)(4)

Clerk

Court
motion,

Court will

to
of

confer
the

will

with

Court

TAKE

pending

to

schedule

UNDER

such

PROVIDE Defendants

Plaintiff's

an

an

ADVISEMENT
evidentiary

with fourteen

(14)

days after the entry of this Opinion and Order to schedule such

hearing.
the

If Defendants

Court

will

fail

resolve

to timely schedule

this

issue

based

such hearing,

on

the

evidence

currently before the Court.
B.

The

under

Court

will

advisement

60(b)(4)

motion.

denies Defendants'

any

sale

of

9 In

the

Plaintiff's Motion

hold

Plaintiff's

pending

the

However,
motion,

realty

resolution

assuming,

for

of

by

arguendo,

Defendants

Defendants

might

Execution

Sale

Defendants'

the Court notes that,

owned

alternative,

Motion

that

the

Rule

Court

under Rule 69,

in

submit

execution

affidavits

of

as

evidence to support their contention that they were not properly
served with process.
However, such affidavits likely would simply
confirm the factual dispute that the Court currently perceives on the
basis of Plaintiff's evidence and Defendants' pleadings, and then
require the Court to conduct an evidentiary hearing to determine the
credibility and weight of such conflicting evidence.
Accordingly, the
Court believes that conducting an evidentiary hearing at this stage
would promote the most efficient resolution of this issue.
20

Plaintiff's judgment must comport with 28 U.S.C.
than Virginia's law governing such sales.

§ 2001,

rather

Under Rule 69,

this

Court's procedure on execution of a judgment must comport with
Virginia
Civ.

law,

unless

P. 69(a).

a

federal

statute

applies.

See

Fed.

Congress has established a federal statute that

governs the sale of realty under any order of this Court.
statute provides:
(a) Any realty or interest therein sold under any
order or decree of any court of the United States
shall be sold as a whole or in separate parcels at
public sale at the courthouse of the county, parish,
or city in which the greater part of the property is
located, or upon the premises or some parcel thereof
located therein,

be

upon

such

as the court directs.

terms

and

conditions

Such sale shall

as

the

court

directs.

b) After a hearing, of which notice to all interested
parties shall be given by publication or otherwise as
the court directs, the court may order the sale of
such realty or interest or any part thereof at private
sale for cash or other consideration and upon such
terms and conditions as the court approves, if it
finds

that

the

best

interests

of

the

estate

will

be

conserved thereby. Before confirmation of any private
sale,
the court shall appoint three disinterested
persons to appraise such property or different groups
of three appraisers each to appraise properties of
different

classes

or

situated

in different

localities.

No private sale shall be confirmed at a price less
than
two-thirds
of
the
appraised
value.
Before
confirmation of any private sale, the terms thereof
shall be published in such newspaper or newspapers of
general circulation as the court directs at least ten
days before confirmation. The private sale shall not
be

R.

confirmed

if

a

bona

fide

offer

is

made,

under

conditions prescribed by the court, which guarantees
at least a 10 per centum increase over the price
offered in the private sale.

21

Such

28 U.S.C.

§ 2001.

Furthermore,

Congress has provided that:

A public sale of realty or interest therein under any
order, judgment or decree of any court of the United
States shall not be made without notice published once
a week for at least four weeks prior to the sale in at
least one newspaper regularly issued and of general
circulation in the county, state, or judicial district
of the United States wherein the realty is situated.

If such realty is situated in more than one county,
state,
district or circuit,
such notice shall be
published in one or more of the counties, states, or
districts

wherein

it

is

situated,

as

the

court

directs. The notice shall be substantially in such
form and contain such description of the property by
reference or otherwise as the court approves. The
court may direct that the publication be made in other
newspapers.

28

U.S.C.

.

.

§ 2002.

Defendants'

Rule

.

Accordingly,
60(b)(4)

subject

motion,

this

to

the

Court

resolution

notes

that

of
any

judicial sale of realty that Plaintiff seeks in execution of its
judgment against Defendants will be governed by federal statute,
rather than, as Plaintiff had suggested in his motion,

Virginia

law.

IV.

CONCLUSION

For the reasons stated above,
TAKES

UNDER

ADVISEMENT

Rehearing/Reopening
Defendants
Civil

seek

relief

Procedure

Defendants'

contends

of

the

PART

Case,

ECF

in

such

60(b)(3)

and

motion.

that

IN

However,

judgment

the

to

Defendants'

No.

motion

32.

the

Petition

To

under

60(d)(3),

against
22

Court DENIES IN PART and

the

Federal

the

is

Court

void

extent

Rules

extent Defendants'

them

for

of

DENIES

motion

under

Rule

60(b)(4),

the

Court TAKES UNDER ADVISEMENT

an evidentiary hearing.
with

to

Plaintiff's

schedule

an

such motion,

pending

The Court DIRECTS Defendants to confer

counsel

and

then

evidentiary

contact

hearing

the

to

Clerk

address

of

the

the

Court

parties'

factual dispute over whether Defendants were validly served with
process.

The

Court ADVISES Defendants

(14) days after the entry of

such a hearing and that,

that

they have

fourteen

this Opinion and Order to schedule

if they fail

to do so, the Court will

resolve their motion on the papers currently before it.
The

Court

Execution
60(b)(4)

TAKES

Sale,

UNDER

pending

the

Plaintiff's

resolution

of

Motion

Defendants'

for

Rule

motion.

The Clerk is REQUESTED
Order to all

counsel of

their address

of

IT

ADVISEMENT

IS

SO

to

send a copy of

record and to

this Opinion and

the pro se Defendants

at

record.

ORDERED.

M
Mark S. Davis

United States District Judge
Mark

S.

Davis

United States District Judge
Norfolk, Virginia
December /5 , 2014

23