Ramsay v. Sanibel & Lancaster Insurance, LLC et al
Filing
64
AMENDED 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 hearing. 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 v/ere validly served with pr ocess. 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 Cou rt TAKES UNDER ADVISEMENT Plaintiff's Motion for Execution Sale, pending the resolution of Defendants' Rule 60 (b) (4) motion. Signed by District Judge Mark S. Davis on 6/19/15. Nunc pro tunc to 12/15/14, the date the original Opinion and Order was signed and entered. (Copies distributed as directed 6/19/15)(afar)
FILED
UNITED STATES DISTRICT COURT
JUN 1 9 2015
EASTERN DISTRICT OF VIRGINIA
Norfolk
Division
CLERK, US DISTRICT COURT
NORFOLK, VA
CHRISTOPHER RAMSAY,
Plaintiff,
v.
Civil Action No.
SANIBEL
&
2:llcv207
LANCASTER
INSURANCE,
LLC,
ROBERTA L. GARCIA-GUAJARDO,
STEVEN GUAJARDO, and
GARY J. HUNTER,
Defendants.
AMENDED OPINION AND ORDER1
This
matter
is
before
2014
by
Steven
Roberta
32,
Garcia-Guajardo
Petition
for
filed on September 19,
("Garcia-Guajardo")
ECF No.
("Plaintiff") .2
November
4,
collectively
and
Guajardo, "Defendants") and a Motion for Execution Sale,
on
and,
a
Garcia-
filed
("Guajardo"
on
with
37,
Guajardo
L.
Court
ECF No.
Rehearing/Reopening of Case,
the
2014
by
Christopher
Ramsay
The Court will construe Defendants'
pro se
'The instant "Amended Opinion and Order" replaces the Opinion and
Order entered in this case on December 15,
2014.
ECF No.
39.
The
Court's disposition of Defendants' Petition for Rehearing/Reopening of
Case remains unchanged from the Court's prior Opinion and Order.
Accordingly, this Amended Opinion and Order has no effect on such
motion.
The only substantive changes contained herein consist of
revisions to the Court's discussion, contained in Part III.B, of the
standard applicable to Plaintiff's Motion for Execution Sale.
Defendants purported to file their motion on behalf of a third
defendant in this action, Sanibel Lancaster Insurance, LLC ("S&L
Insurance"). However, S&L Insurance, as a limited liability company,
"cannot appear pro se, even if represented by one of its members," and
Petition
for
Rehearing/Reopening
from Judgment")
Federal
as
Rules
60(d)(3).
of
a motion
Civil
of Case
("Motion
for relief
Procedure
for
Relief
from judgment under
60(b)(3),
60(b)(4),
and
After examining the briefs and the record, the Court
determines that oral argument on Defendants'
Rule 60(b)(3) and
Rule 60(d)(3) motions is unnecessary because the facts and legal
contentions are adequately presented and oral argument would not
aid in the decisional process.
Fed. R. Civ.
Loc.
a
R.
60(b)(4)
and
7 (J) .
The
motion
TAKES
need
for
hearing
is addressed below.
UNDER
ADVISEMENT
IN
The
PART
P. 78(b); E.D. Va.
on
Defendants'
Court DENIES
Defendants'
Rule
IN PART
motion.
The
Plaintiff filed an action in this
Court
Court TAKES UNDER ADVISEMENT Plaintiff's motion.
I.
On April
FACTUAL AND PROCEDURAL HISTORY
12, 2011,
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.
1.
and breach of contract under Virginia law.
ECF
Returns of service indicate that Guajardo and Garcia-
Guajardo were served with process on May 4,
2011.
ECF No.
3.
On May 16, 2011, S&L Insurance was served with process through
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. Haqerman, 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.
its registered agent.
ECF No. 4.
On May 26, 2011, 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 of the Court entered
ECF No. 10.
default judgment on August 1, 2011.
No.
Mot.
Plaintiff moved for
for Default J., ECF
11.
On March 28,
2012,
this Court entered default judgment in
favor of Plaintiff: on his FLSA claim against Defendants, on his
wrongful
discharge
claim
against
S&L
Insurance,
breach of contract claim against S&L Insurance.
and
on
his
Opinion and
Order, ECF No. 17.
In its March 28, 2012 Opinion and Order, the
Court
wrongful
severed
the
discharge
claim
against
Garcia-
Guajardo 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, on March 27, 2013, the Court
entered
judgment
against
Garcia-Guajardo,
Plaintiff's wrongful discharge claim.
Plaintiff asserts
at 2, ECF No. 33.
well,
on
ECF No. 24.
that he "has pursued collection on the
judgment entered against
resisted collection."
as
[Defendants],"
but
PL's Br. Opp'n Mot.
that
they
"have
for Relief from J.
In support of such contention, Plaintiff has
submitted two orders from the Circuit Court of the City of
Suffolk
that
indicate
that
Garcia-Guajardo
appear for debtor's interrogatories.
See id.
twice
ex.
failed
1 & 2,
to
ECF
Nos.
33-1,
33-2.
In one such order,
the Circuit Court of the
City of Suffolk found that Garcia-Guajardo had 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, Case No. CM13-1020 (Va. Cir. Nov.
20, 2013).
In a subsequent order,
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 to frustrate their purpose."
on Motion
Feb.
24,
On
for Order of Contempt,
Case No.
CM13-1020
Order
(Va.
Cir.
2014) .
September
19,
2014,
Defendants
moved
the
Court
"for
injunction for relief of the judgment" and for rehearing,
an
as
well as for sanctions against Plaintiff and Plaintiff's counsel.
Mot.
for Relief from J.
at 3-4.
From Defendants'
appears that they seek relief from judgment
Plaintiff
committed
fraud
upon
misrepresentations to the Court,
See icl. at 3.3
the
motion,
it
on the basis that
Court
by
making
presumably in his Complaint.
Defendants also seek relief from judgment on the
basis that they were not properly served with process.
id. at
In Defendants' motion, without explanation, they refer to
Plaintiff's race.
From the context of Defendants' motion, 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
containing
tolerated.
such
a
If Defendants
reference,
appropriately sanction them.
the
file
Court
any future pleading
will
not
hesitate
to
3.
Applying a liberal construction to Defendants' pleadings,
required
because
Erickson v.
of
Pardus,
Defendants'
551 U.S.
89,
pro
94
se
status,
(2007),
see,
e.g.,
to the extent that
Defendants seek to set aside this Court's judgment on the basis
of fraud, the Court will construe their motion as a motion under
Rule 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, 2014,
to
Defendants'
motion
under
Plaintiff filed his brief in opposition
motion.
Rule
Plaintiff
60(b)(3)
contends
is untimely
that
because
Defendants'
Defendants did
not seek relief from judgment within one year of the entry of
such
In
judgment.
response
PL's Br.
to
Defendants'
argues that Defendants'
basis
to warrant
Finally,
Plaintiff
in
that
Rule
for Relief from J.
60(d)(3)
motion,
from
to
judgment
Defendants'
Defendants
were,
under
Rule
October
27,
Plaintiff's opposition.
Plaintiff
in
2014,
Defendants
Rule
60(d)(3).
60(b)(4)
fact,
process "at the address listed on their paper."
On
at 2.
allegations do not present a sufficient
relief
response
argues
Opp'n Mot.
motion,
served
with
Id. at 3.
filed
a
reply
to
Ans. to PL's Filing, 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 of the statute of
limitations
and contend that such
provisions apply because Garcia-Guajardo was incapacitated.
at 2.
from
Defendants also argue that they never received process
the
process
server
who
attempted
Garcia-Guajardo at her home.
icL
to
at 3.
request that the Court "give [Plaintiff]
his attorney" and seek compensation.
On November 4,
special master and
property
Virginia"
37.
Id.
at
4301
for
special
Finally,
on
Defendants
jail time along with
Id. at 3-4.
sale at public auction of
Newport
asserts
process
Plaintiff moved for appointment of a
Ave,
("the property").
Plaintiff
appoint a
2014,
serve
Maryland
Ave,
Mot.
that
master
a/k/a
"the
for Execution sale,
Rule
69 authorizes
to conduct a
real
Norfolk,
ECF No.
this Court
judicial sale of
to
the
property because such Rule "directs that State procedure must be
followed on execution procedures"
and Virginia
law authorizes
sale of a debtor's real property through a creditor's bill in
equity and court appointment of a commissioner in chancery to
sell the debtor's property.
See id.
at
2.
In his motion,
Plaintiff alleges that the property is subject to: a March 28,
2005 deed of trust to secure a $220,000 promissory note,
a
$382,183.59 federal tax lien recorded on March 3, 2009, and a
$13,533.81 federal tax lien recorded on February 3, 2010.
Id.
Other than such liens and encumbrances,
Plaintiff asserts that
Defendants own the property.
Plaintiff requests that
Id. at 3.
the Court: "order David Weeks, Trustee, and New York Mortgage
Company,
LLC, Noteholder,
to appear and respond to this Motion
within twenty-one days of service of same or waive their right
to participate herein;" "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 property," "[t]he liens against the property and the order
of their priority, 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."
Id. at 3.
Finally,
Plaintiff requests that the Court order the property sold to
satisfy Plaintiff's judgment,
if the rents from such property
cannot satisfy such judgment within five years, or if such rents
are
sufficient
years,
to
satisfy
Plaintiff's
judgment
five
order that those rents be applied to the satisfaction of
Plaintiff's
judgment.
See
id^
at
4.4
Defendants to respond to Plaintiff's motion
The
deadline
for
for execution has
passed and Defendants have not responded thereto.
under
within
Accordingly,
Plaintiff's request appears to comport with the requirements
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.
the
motions
currently
before
the
Court
are
now
ripe
for
disposition.5
II.
STANDARD OF REVIEW
A.
Rule 60(b)
Federal Rule of Civil Procedure 60(b)
permits a party to
seek relief "from a final judgment, order, or proceeding."
R.
Civ.
proceeds
P.
60(b).
Fed.
A court's analysis of a Rule 60(b) motion
in two stages.
First,
a court considers
whether the
movant has met three threshold conditions: "'a moving party must
show
that
his
motion
is
timely,
that he
has
a
meritorious
defense to the action, and that the opposing party would not be
unfairly prejudiced by having the judgment set aside.'"
Nat' 1
Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993)
(quoting Park Corp.
v.
Lexington Ins.
Co.,
812 F.2d 894,
896
(4th Cir. 1987)); see also Aikens v. Ingram, 652 F.3d 496, 501
(4th Cir.
2011)
(citing Nat'1 Credit Union,
1 F.3d at 264).6
Once a movant has demonstrated the three threshold requirements,
Federal Rule of Civil Procedure 60(b)
lists the grounds under
which a court may grant relief from a final judgment.
Credit Union, 1 F.3d at 266.
Nat'l
These grounds are:
On December 1, 2014, Defendants moved for summary judgment, ECF
No. 38, however, such motion is not ripe for disposition.
6
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,
1984)).
8
731
F.2d 204,
207
(4th Cir
(1)
mistake,
neglect;
(2)
reasonable
inadvertence,
surprise,
or excusable
newly discovered evidence that, with
diligence,
could
not
have
been
discovered
in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic),
misrepresentation,
opposing party;
(4)
or
the judgment
judgment has been satisfied,
misconduct
is void;
by
(5)
an
the
released or discharged;
it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that
justifies relief.
Fed.
R.
60(b)
Civ.
"must
P.
60(b).
clearly
The party seeking relief under Rule
establish
the
grounds
therefor
to
the
satisfaction of the district court . . . and such grounds must
be clearly substantiated by adequate proof."
F.2d 1,
3 (4th Cir. 1992)
In re Burnley, 988
(internal citations omitted).
Relief
under Rule 60(b) is an "extraordinary remedy" that is to be used
only in "exceptional circumstances."
608 F.2d 96,
102
Compton v. Alton S.S. Co.,
(4th Cir. 1979); see also Ebersole v.
Perry, 292 F.R.D. 316, 320 (E.D. Va. 2013)
F.2d at 102) .
Kline-
(quoting Compton, 608
To determine whether such exceptional relief is
appropriate, the court "must engage in the delicate balancing of
'the sanctity of final judgments,
res
judicata,
and
the
expressed in the doctrine of
incessant
command
of
the
court's
conscience that justice be done in light of [a]11 the facts."
Compton,
608
F.2d
at
102
(alteration
in
original)
(quoting
Bankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir.
1970), cert, denied, 399 U.S. 927 (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.
Aikens, 652 F.3d at 501.
at
issue,
over the
"However, where default judgments are
years
[the
Fourth
Circuit]
has
taken an
. . . ."
Augusta
Fodor Contracting Corp.,
843 F.3d
increasingly liberal view of Rule 60(b)
Fiberglass Coatings,
See
Inc. v.
808, 811 (4th Cir. 1988); see also Charles Alan Wright & Arthur
R. Miller, 11 Federal Practice & Procedure § 2857 (3d ed. 2012)
(noting
that
"[t]he
granting Rule 60(b)
cases
calling
motions,
for
great
for the most part,
liberality
in
have involved
default judgments. There is much more reason for liberality in
reopening a judgment when the merits of the case never have been
considered than there is when the judgment comes after a full
trial on the merits.").
pit
the court's
merits
against
This is so because "default judgments
strong preference
countervailing
for deciding
interests
in
cases
finality
preserving the court's ability to control its docket."
v.
M.L.
Mktg.
Co.,
116 F.3d 91,
Augusta, 843 F.3d at 811).
94
(4th Cir.
1997)
on the
and
in
Heyman
(citing
Nonetheless, in considering a Rule
60(b) motion to set aside a default judgment, "Mw]hen the party
is at fault, the [court's interest in finality and efficiency]
dominate[s] and the party must adequately defend its conduct in
10
order
to
original)
show
excusable
neglect.'"
Io\
(alterations
in
(quoting Augusta, 843 F.3d at 811).
B. Rule 60(d)
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,
Co.
v.
(1944)).
on
plot
the
60(d)(3).
Fox ex rel.
135-36 (4th Cir. 2014).
Id^ at
Hartford-Empire
"Thus,
intentional
touch
final
"ordinary cases of fraud" do not provide a basis for
relief under Rule
Glass
739 F.3d 131,
a
not
to
only
must
deceive
public
Co.,
136
322
fraud
the
interest
(citing Hazel-Atlas
U.S.
on the
judiciary,
in
a
way
individual parties generally does not."
238,
court
but
that
Id.
244,
246
involve
an
it must
fraud
also
between
Rule 60(d) should
be applied "only when parties attempt 'the more egregious forms
of subversion of the legal process . . .,
necessarily
expect
process.'"
Id^
Bhd.
of
to
be
exposed
by
those that we cannot
the
normal
(quoting Great Coastal Express,
Teamsters,
675
F.2d
1349,
1357
(4th
"Perjury and fabricated evidence . . . [are]
permit relief as fraud on the court . . . ."
Coastal, 675 F.2d at 1357).
Rather,
11
Inc.
Cir.
adversary
v.
Int'l
1982)).
not adequate to
id. (citing Great
"the doctrine is limited to
situations such as 'bribery of a judge or juror, or improper
influence exerted on the court by an attorney,
in which the
integrity of the court and its ability to function impartially
is directly impinged.'"
1356).
io\ (citing Great Coastal, 675 F.2d at
Unsurprisingly,
"[p]roving
fraud
on
the
presents ... a very high bar for any litigant."
court
thus
IdL at 136-
37.
C.
Rule 69
Federal Rule of 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.
Civ.
P.
69(a)(1).
Accordingly,
such Rule establishes
that, as a general rule, Virginia law governs the procedure on
execution in this Court.
However, an applicable federal statute
is controlling, notwithstanding Virginia law.
See id.; see also
12 Wright & Miller, supra, § 3012 (3d ed. 2014).
III.
A.
As
motion
stated
appears
above,
to
seek
DISCUSSION
Defendants'
when
Motion
liberally
relief under
construed,
Rule
60(b)(3)
Defendants'
and Rule
60(d)(3) based on Plaintiff's alleged fraud and Rule 60(b)(4)
12
based on allegations that Defendants were not properly served
with process.
The Court will first consider Defendants' motion
with respect to the fraud grounds for relief.
The Court will
then turn to Defendants' Rule 60(b)(4) motion.
As stated above,
as a threshold to relief under Rule 60(b)(3),
show that:
defense,
their motion
is
timely,
they
Defendants must
have
a meritorious
and Plaintiff would not be unfairly 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)
Defendants
seek
relief
(emphasis added).
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 year after
entered
judgment
the entry of judgment."
against
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,
2012 with respect to Plaintiff's
FLSA claim, ECF No. 18, and against Garcia-Guajardo on March 27,
2013 with respect to Plaintiff's wrongful discharge claim, ECF
13
No.
24.
Thus,
Rule
60(c)(1)
required
Guajardo
and
Garcia-
Guajardo, with respect to Plaintiff's FLSA claims, to file their
Rule 60(b)(3) motions no later than March 28, 2013.
Similarly
such rule mandated that Garcia-Guajardo file any Rule 60(b)(3)
motion challenging
the
judgment against her on the wrongful
discharge claim no later than March 27, 2014.
the instant motion on September 19,
Defendants' filed
2014.
Thus,
Defendants'
motions under Rule 60(b) (3) are DENIED as untimely.7
Defendants'
Rule
60(d)(3)
motion
fails
because,
assuming the truth of the allegations in Defendants'
even
motion,
such allegations are not sufficient to demonstrate fraud on the
court.
At
most,
Defendants
"blatantly lied" to the Court.
However,
have
alleged
Ans.
that
Plaintiff
to PL's Filing at 3.
the Fourth Circuit has underscored that "perjury and
fabricated evidence," though reprehensible,
fraud on the Court.
Defendants
do not qualify as
Great Coastal, 675 F.2d at 1357.
have not alleged that Plaintiff
Moreover,
committed acts
of
fraud that, like bribery of a judge, "directly impinge" on "the
integrity of the court and its ability to function."
739 F.3d at 136.
See Fox,
Therefore, the Court concludes that Defendants
have not demonstrated that relief from judgment is warranted
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
based on fraud on the court under Rule 60(d)(3) and Defendants'
Rule 60(d)(3)
motion is DENIED.
To the extent that Defendants contend that they were not
properly served with process because the process server did not
leave
process
with
Garcia-Guajardo,
the
their motion as a Rule 60(b)(4) 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
in
Fed. R. Civ. P. 60(b)(4).
permissive
terms,
a
court
Although Rule
does
discretion to refuse to vacate a void judgment.
not
See,
have
e.g.,
Philos Techs., Inc. v. Philos & D, Inc., 645 F.3d 851, 855 (7th
Cir.
2011)
Domestic
(citations
Violence
omitted);
Coal.,
542
Hukill
F.3d 794,
v.
797
Okla.
Native
(10th Cir.
Am.
2008)
(citation omitted); Harper Macleod Solicitors v. Keaty & Keaty,
260 F.3d 389, 394
(5th Cir. 2001)
(citation omitted); see also
11 Wright & Miller, supra, § 2862 (3d ed. 2012)
(stating that
"[tjhere is no question of discretion on the part of the court
when a motion is under Rule 60(b)(4)").
Moreover, unlike other
motions under Rule 60(b), a party may seek to set aside a void
judgment even years after the court has entered such judgment.8
See' e-q-/ 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,
15
Similarly, to prevail on a Rule 60(b)(4) motion, the movant need
not establish the existence of a meritorious defense.
Bludworth
Bond Shipyard Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th
Cir. 1988) (noting that a court must set aside a void judgment
under
Rule
60(b)(4)
regardless
whether
the
movant
has
a
meritorious defense); 11 Moore et al., supra, § 60.44 [5] [b]; 11
Wright & Miller,
supra,
§ 2862.
For the purposes of Rule 60(b)(4), a judgment is void "only
if the court rendering the decision lacked personal or subject
matter
jurisdiction or
process of law."
2005)
F.3d
acted in a manner inconsistent with
Wendt v.
due
Leonard, 431 F.3d 410, 412 (4th Cir.
(citing Eberhart v. Integrated Design & Constr., Inc., 167
861,
construe
871
the
(4th
Cir.
concept
of
1999)).
a
However,
'void'
order
courts
under
Rule
"narrowly
60(b)(4)
precisely because of the threat to finality of judgments and the
risk that litigants . . . will use Rule 60(b)(4)
to circumvent
an appeal process
id. at 412-13
they elected not to follow."
(citations omitted).
Nonetheless,
court enters it without
personal
a judgment is void when a
jurisdiction over a defendant
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"); cL_ Foster v. Arletty 3 Sari, 278 F.3d 409, 414 (4th Cir.
2002)
(citations omitted)
(noting that "[o]ther circuit courts
addressing the issue have concluded that a motion to vacate a void
judgment pursuant
to Rule
60(b)(4)
limit.").
16
contains
little,
if any,
time
because
such
Armco v.
(4th
defendant
was
not
validly
Penrod-Stauffer Bldq. Sys.,
Cir.
1984)
(holding
that
Inc.,
"[s]ince
served
with
process.
733 F.2d 1087,
there
was
no
1089
valid
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, § 60.44[3]
maY
...
be
void
theoretical
power
defendant,
the
because,
to
exercise
defendant
(stating that "[a] judgment
although
personal
was
not
the
court
jurisdiction
adequately
had
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 of establishing,
motion,
that a court
for the purposes of a Rule 60(b)(4)
lacked personal
jurisdiction to enter a
default judgment.
See Arpaio v. Dupre, 527 F. App'x 108, 113 n.
4 (3d Cir. 2013)
(unpublished)
issue) .
Some courts
(noting a circuit split on the
of appeals
have held that
"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 judgment, bears the burden of proving that service
did not occur."
SEC v.
Internet Solutions for Bus. Inc.,
509
F.3d 1161, 1163 (9th Cir. 2007); Burda Media, Inc. v. Viertel,
417 F.3d 292, 299 (2d Cir. 2005); Bally Exp. Corp. v. Balicar,
17
Ltd.,
804 F.2d 398,
401 (7th Cir. 1986).
On the other hand,
at
least one court of appeals has held that a plaintiff maintains
the burden of proving that personal
even
under
S.A.,
Rule
60(b)(4).
558 F.3d 1210,
Oldfield
jurisdiction is present,
v.
Pueblo
De
Bahia
1217 (11th Cir. 2009); cL_ Arpaio,
Lora,
527 F.
App'x at 113 & n.4 (placing burden on plaintiff but noting that
the parties
had
not
district court).
return
of
service,
the burden
of
proof
constitutes
prima
facie
of
establish
"'[a]
signed
Homer
v.
Jones-Bey,
415
F.3d
748,
752
to
valid
regardless whether
demonstrating
personal
the plaintiff bears
sufficient
to
Cir.
998 F.2d
Therefore, in the context of Rule
jurisdiction
the defendant
(7th
Inc.,
over
service
a
the burden of
of
defendant,
plaintiff has submitted a signed return of service,
shifts
of
which can be overcome only by strong and convincing
1394, 1398 (7th Cir. 1993)).9
proof
in the
evidence
(quoting O'Brien v. R.J. O'Brien & Assocs.,
60(b)(4),
issue
However, as a general principle,
service
evidence.'"
2005)
raised
demonstrate
that
it
did
process
to
once
the
the burden
not
receive
valid service of process.
9 Accord Blair v. City of Worcester, 522 F.3d 105, 112 (1st Cir.
2008) (citations omitted); see also 1 Moore et al., supra, § 4.103
(stating that "[wjhether 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
In this case,
Plaintiff has submitted prima facie evidence
that Defendants were properly served with process.
Plaintiff
has filed a return of service and affidavit of service
that
state that a private process server personally served GarciaGuajardo with process at the address listed in the summons on
May 4, 2011.
ECF No. 3 at 4-6.
Similarly, Plaintiff has filed
a return of service and affidavit of service that state that a
private process server served Guajardo through leaving process
with Garcia-Guajardo,
sufficient
process under Rule 4(e)(2)(B)
§
8.01-296(2)(a).
establish prima
to establish valid
or Rule 4(e)(1)
Accordingly,
facie
evidence
such
service of
and Va. Code Ann.
returns
that Defendants
of
service
were properly
served with process .
In response,
in their papers, Defendants have alleged that
they were not validly served with process because the process
server did not leave process with Defendants.
Thus, 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 not properly served with process.
F.3d at 752.
Homer,
415
At this stage, Defendants have not presented any
19
evidence that service of process was improper.
Defendants'
best
to
pro se status,
provide
However, given
the Court believes that
Defendants
with
opportunity
they
whether
an
were
properly
it would be
to
present
evidence
regarding
process.
The Court proposes conducting an evidentiary hearing
to resolve this issue.10
to
present evidence
process,
the
with
As it is currently Defendants' burden
that
they were
will
Court
served
DIRECT
not
validly
Defendants
served with
to
confer
with
Plaintiff's counsel and then contact the Clerk of the Court to
schedule
an
ADVISEMENT
evidentiary
evidentiary
Defendants'
hearing.
hearing.
Rule
The
The
60(b)(4)
Court
Court
motion,
will
PROVIDE
will
TAKE
UNDER
pending such an
Defendants
with
fourteen (14) days after the entry of this Opinion and Order to
schedule such hearing.
If Defendants fail to timely schedule
such
will
hearing,
the
Court
resolve
this
issue
based
on
the
evidence currently before the Court.
B.
Plaintiff's Motion
The Court will hold Plaintiff's Motion for Execution Sale
under
advisement
In
pending
the alternative,
the
resolution
Defendants
might
of
Defendants'
Rule
submit affidavits
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
60(b)(4) motion.
However, assuming, for the sake of argument,
that the Court denies Defendants'
motion,
the Court notes that
Plaintiff's motion raises questions regarding the appropriate
procedure that the Court should apply in resolving such motion.
Federal Rule of Civil Procedure 69 governs execution of a
money judgment.
Such rule provides:
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. Civ. P. 69(a).
Thus, Rule 69 establishes a general rule
that this Court will apply Virginia's procedure on execution,
but, if a federal statute is applicable, it is controlling.
See
13 Moore et al., supra, § 69.03[1].
In Chapter 127
of Title 28 of the United
States
Code,
Congress has established a statutory scheme governing sales of
realty
"sold under
United States."
any order
or decree
28 U.S.C. § 2001(a).
among other things,
the manner of
notice such sales require,
of any court
of the
Such statutes prescribe,
such sales,
id_;_ § 2002.
icL,
and
the
The Fourth Circuit has
stated that "such statute very definitely announces the policy
of the law that federal judicial sales should be made only in
accordance with the requirements of the statute,
and it is the
duty of the courts to enforce the statutory mandate when
21
the
point
is
Elliott,
directly
94
and
F.2d
55,
properly
60
(4th
presented
Cir.
1938);
Lumber Co. v. Tunis Lumber Co., 171 F.
However,
"[n]ot
every
minor
.
.
see
.
."
also
Read
v,
Cumberland
352, 359 (4th Cir. 1909).
departure
from
strict
compliance
with the statute where no prejudice has thereby resulted to the
objecting party, will require setting a sale aside . . . ."
Id.
(citing Bovay v. Townsend, 78 F.2d 343, 347 (8th Cir. 1935)).
Importantly,
however,
courts have held that Rule 69(a)
does
not mandate the application of the Chapter 127 statutory scheme
because
they
have
judicial sales,
are distinct
as
construed
such
scheme
opposed to execution
to
apply
sales.
only
Judicial
to
sales
from execution sales:
Execution sales are conducted by an officer of the law
in pursuance of the directions of a statute, while
judicial sales are made by the agent of a court in
pursuance of the directions of the court;
sales
the
sheriff
is
the
vendor,
in
in execution
judicial
sales,
the court.
30 Am.
Jur.
In light
of
Chapter
2d Executions and Enforcement of Judgments § 384.
such
127,
distinction-and
"Executions
and
notwithstanding
Judicial
the
title
Sales"-courts
concluded that:
the language of
[28 U.S.C.
§ 2001(a)]
limits its
application to judicial sales made under order or
decree of the court and requiring confirmation by the
court
for their validity,
and that
it
does
not extend
to sales under common-law executions which issue by
mere praecipe of the judgment creditor on the judgment
without order of the court, and in which the levy and
sale
of
the
marshal
are
ministerial,
22
do
not
need
of
have
confirmation to give them effect, and only come under
judicial supervision on complaint of either party.
Yazoo
& M.V.R.
Co.
v.
City
of
Clarksdale,
257
U.S.
10,
20
(1921); Weir v. United States, 339 F. 2d 82, 85 (8th Cir. 1964);
Prudential Ins. Co. of Am. v. Land Estates, Inc., 90 F.2d 457,
458 (2d Cir. 1937) (per curiam) .
Thus, courts view Chapter 127
of Title 28 as establishing the procedure for judicial sales.
And, given that Rule 69(a) provides that "a money judgment is
enforced by a writ of execution," courts have determined that,
under Rule 69(a), the federal statutes governing judicial sales
do
not
apply.
Weir,
339
F.2d
at
85-86.
procedures on writs of execution apply,
of realty.
Instead,
state
even to execution sales
See id.
That said, at least one court has interpreted Rule 69(a) as
permitting a court to order a judicial sale under 28 U.S.C.
2001.
In
United
States
v.
Branch
Coal
Corp.,
the
Court
§
of
Appeals for the Third Circuit upheld a judicial sale of realty
following a default judgment.
The
Court
noted
that,
"Rule
390 F.2d 7, 8, 10 (3d Cir. 1968).
69(a)
has
been
interpreted as
precluding the application of federal procedures, as outlined in
28 U.S.C. §§ 2001-2002 (1965),
However,
the Court
then
to execution sales."
stated:
"we are
aware
IcL at 9.
of no decision
that has construed Rule 69(a) as requiring an execution sale in
every case where the United States is seeking to enforce a money
23
judgment.
provides
Indeed,
for
the first sentence of the Rule specifically
alternate
directs otherwise.'"
means
Id^
of
enforcement
when
the
'court
Accordingly, the Court concluded that
the district court permissibly had conducted a judicial sale,
rather than an execution sale,
and upheld the sale.
Id. at 9-
10.
After thoroughly considering the issue,
assuming,
for the
sake of argument, that the Court denies Defendants' motion, the
Court concludes that it will conduct any sale of realty pursuant
to Chapter 127 of Title 28 because Virginia law does not permit
a plaintiff to enforce a judgment against realty by "writ of
execution"
general
and
rule,
mandatory.
Virginia's
the
Fourth
Circuit
the provisions
Although
procedure
Rule
judgment
creditor
of Chapter
69(a)
regarding
on a judgment of this Court,
to
has
indicated that,
as
a
127 of Title 28 are
directs
the
Court
writs of execution
to
apply
to execution
Virginia law does not authorize a
obtain
satisfaction
from
a
debtor's real property through a writ of execution.
judgment
At common
law, a judgment creditor had no method for ordering the sale of
realty through a writ of execution.
Commentaries
*417
(describing
the
See 2 William Blackstone,
writ of
fieri
facias
as a
"species of execution . . . against the goods and chattels of
the
defendant");
W.
Procedure § 18.02[8]
Hamilton
Bryson,
Bryson
on
Virginia
("A judgment creditor could not by the
24
traditional common law reach his or her debtor's real estate.").
Indeed,
an entire branch of equity jurisdiction developed to
allow
a creditor
because
Norton
1941)
of
the
Pomeroy,
to
recover
narrowness
Equity
from
of
the
a debtor's
real
common-law
writs.
§ 1415,
at 1065
Jurisprudence
property
4
John
(5th ed.
(noting that "[t]he jurisdiction of equity to entertain
suits in aid of creditors undoubtedly had its origin in the
narrowness of the common-law remedies by writs of execution.").
As at common
law,
in Virginia-unlike
some
states-a
judgment
creditor may not reach a judgment debtor's realty through a writ
of execution.
See Va.
("By a writ of fieri
ma
o
facias,
§ 8.01-474
(emphasis added)
the officer shall be commanded to
ke the money therein mentioned out of the goods and chattels
f the person against
(emphasis added)
we
Code Ann.
whom
the judgment
("The writ of fieri
is.");
id.
§ 9.01-478
facias may be levied as
11 on the current money and bank notes,
as on the goods and
chattels of the judgment debtor, except such as are exempt from
levy under Title 34, and shall bind what is capable of being
levied on only from the time it is actually levied by the
officer to whom it has been delivered to be executed.");
Kent
Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure §
14.10(A)
(noting that it "is a well [-]established proposition[n]
of law" that "in Virginia, the writ of fieri facias may not be
levied upon the real estate of the judgment debtor except in the
25
case of judgments in favor of the Commonwealth.").11
General
Assembly
creditors
can
has
enforce
provided
a
a mechanism
judgment
lien
to
Rather, the
by which
obtain
judgment
satisfaction
from a judgment debtor's realty.
In
Virginia,
a
judgment
creditor
may
collect
from
a
judgment debtor's realty through a creditor's bill to enforce a
judgment lien.
The General Assembly,
as a general matter,
has
established that:
Every judgment for money rendered in this Commonwealth
by any state or federal court or by confession of
judgment, as provided by law, shall be a lien on all
the real estate of or to which the defendant in the
judgment is or becomes possessed or entitled, from the
time such judgment is recorded on the judgment lien
docket of the clerk's office of the county or city
where such land is situated.
Va.
Code Ann.
§ 8.01-458.
judgment debtor's realty,
Thus,
to satisfy a judgment from a
a judgment creditor must first docket
his judgment in the clerk's office of the county or city where
the land is situated.
See id.;
Doug Rendleman,
Judgments and Liens in Virginia § 6.2 (3d ed.
Enforcement of
2014) .
Once a
judgment creditor has obtained a judgment lien on the realty,
the General Assembly has determined that:
In Virginia, another species of writ of execution, the writ of
possession, will lie to allow a plaintiff to obtain the return of his
property.
See Va.
Code Ann.
§
8.01-470;
Middleditch & Sinclair,
sup_ra, § 15.1.
Plaintiff seeks a sale of a parcel of land owned by
Defendants to satisfy a judgment unrelated to such parcel.
Thus, the
writ of possession provides no basis for Plaintiff to obtain the
relief he seeks.
26
Jurisdiction to enforce the lien of a judgment shall
be in equity.
If it appear 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.
If
the
court
determines
that
rents
and profits from the property will not satisfy the judgment in
five
years,
"[t]he
court
will
then
appoint
a
special
commissioner for the sale and the proceedings will be conducted
as
other
judicial
sales."
14.10[B]; Rendleman,
supra,
Middleditch
§ 6.3[A].
&
Sinclair,
supra,
§
"The court's confirmation
of the special commissioner's sale is essential to the validity
of the transaction."
Rendleman,
Zion
v.
Baptist
S.E.2d 291,
Church
supra,
Conservators
293 (Va. 2000)
§ 6.4; see also Trs. of
of
Estate
of
Peay,
525
("In the course of a judicial sale,
'[u]pon the entry of a decree of confirmation[,]
the transaction
becomes a completed contract of sale.'" (alteration in original)
(quoting Staples v.
Somers,
Additionally,
there are various
"where
judgment debtor,
it
84 S.E.2d 523,
527
liens on
(Va.
the
1954))).
lands of
is erroneous to decree a sale of his
to satisfy such liens without first
ascertaining all
liens
delinquent
binding
thereon,
including
a
lands
of the
taxes,
and
determining and fixing their respective amounts and priorities."
Tackett
v.
omitted);
Boiling,
1
S.E.2d
see also Capitol
285,
Bldg.
27
287
(Va.
Supply v.
1939)
Chang,
(citations
84 Va.
Cir.
267,
273
(Fairfax County
2012)
(citing Tackett,
1 S.E.2d
at
287) .
To
the
extent
that
Virginia
creditor to obtain satisfaction
property through a
only
permits
a
judgment
from a judgment debtor's real
judicial sale,
the Court
finds
that Rule
69
does not require it to apply Virginia's procedure for judicial
sales.
As noted above,
Virginia's
procedures
Rule
69 requires
"on execution."
the Court to apply
Fed.
R.
Civ
P.
69(a).
However, as the forgoing discussion indicates, Virginia does not
permit "execution" against realty.
judgment creditor
to obtain
enforcing a judgment lien.
judgment
creditor
must
Instead,
satisfaction
Given that,
file
a
bill
in
Virginia permits a
from realty only by
under Virginia
equity
to
law,
a
enforce
a
judgment lien and that such proceedings are conducted under the
court's direction through a commissioner in chancery,
any such
sale undoubtedly is "made under order or decree of the court and
requiring confirmation by the court for their validity," Yazoo &
M.V.R.
Co.,
257 U.S.
"judicial sale."
at 20,
and therefore should be considered a
Indeed, nothing about such procedure suggests
that it can be categorized as an execution
sale,
which results
from "mere praecipe of the judgment creditor on the judgment
without order of the court,
and in which the levy and sale of
the marshal are ministerial,
do not need confirmation to give
them
effect,
and
only
come
under
28
judicial
supervision
on
complaint of either party."
See id.
Thus,
implicitly,
to
Virginia's
judicial
asks
sales
Virginia's
anomalous
to
court
because
realty,
for
procedure
held
governs
to
apply
of
Court
interpret
have
statute
of
procedure
Virginia's
courts
the
the
execution sale.
to
the
the
even
though
execution
Rule
for
that
apply
69
to
of
69
incorporates
it
would
be
of
realty when
that
does
federal
statute
between
a
federal
federal
require
judicial
judicial
See Weir, 339 F.2d at 85-86.
"a
not
governing
distinction
for
application
the
statement
it applies"
at least
procedure
Yet,
require
69's
extent
Rule
sales.
judicial sales
Rule
Plaintiff,
sale
a
sales
and
an
Put differently,
if the federal statute governing judicial sales is inapplicable
under Rule
the
same
69 because the statute concerns
reasoning,
Rule
69
would
not
a judicial sale,
incorporate
on
Virginia's
procedure for enforcing a judgment lien because it too requires
a judicial, rather than execution, sale.
Accordingly, the Court
concludes that Rule 69 does not incorporate Virginia's procedure
for enforcing a judgment lien on realty.
To
the
extent
that
execution sale of realty,
the
provisions
judicial
sale
of
Chapter
in this
Virginia
law
the Court,
127
matter.12
of
does
not
if necessary,
Title
28
to
As noted above,
permit
an
will apply
conduct
the
any
Fourth
12 In the alternative, assuming Rule 69 incorporated Virginia's
procedure for enforcing judgment liens, the Court finds it appropriate
to "direc[t]
otherwise"
that
any judicial sale
29
will
occur under
the
Circuit has suggested that,
as a general rule,
the provisions of
such chapter are mandatory and "federal judicial sales should be
made only in accordance with the requirements of the statute . .
. ."
764
Read,
F.2d
1033,
district
pursuant
such
court's
to
28
any
an
60;
1035
cf.
(4th
ACLI Gov't Sec,
Cir.
1985)
confirmation
U.S.C.
guidance.
motion,
under
94 F.2d at
§§
If
sale
order of
2001,
the
of
sale
a
of
The
satisfy
will
v. Rhoades,
curiam)
ultimately
to
Court,
(per
2002).
Court
realty
this
of
Inc.
(affirming
real
Court
will
denies
follow
Defendants'
Plaintiff's
accord with
property
judgment,
the
procedures
outlined in Chapter 127 of Title 28 of the United States Code.
IV.
For the
TAKES
reasons
UNDER
Defendants
Civil
seek
contends
of
relief
Procedure
Defendants'
the
IN
Case,
ECF
such
60(b)(3)
and
However,
judgment
the Court DENIES IN PART and
PART
in
motion.
that
stated above,
ADVISEMENT
Rehearing/Reopening
CONCLUSION
to
Defendants'
No.
motion
32.
the
against
To
under
60(d)(3),
is
the
Federal
the
extent
them
Petition
Defendants'
of
DENIES
motion
under
60(b)(4), the Court TAKES UNDER ADVISEMENT such motion,
an evidentiary hearing.
extent
Rules
Court
void
for
Rule
pending
The Court DIRECTS Defendants to confer
with Plaintiff's counsel and then contact the Clerk of the Court
procedure set forth in Chapter 127 of Title 28.
69(a);
Branch Coal Corp.,
390 F.2d at 9-10.
30
See Fed.
R. Civ.
P.
to
schedule
an
evidentiary
hearing
to
address
the
parties'
factual dispute over whether Defendants v/ere validly served with
process.
The
Court ADVISES
Defendants
(14) days after the entry of
such a hearing and
that,
if
that
they
have
fourteen
this Opinion and Order to schedule
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
their
all
counsel
address
IT
Plaintiff's
resolution
of
Motion
Defendants'
for
Rule
motion.
The Clerk is REQUESTED
Order to
ADVISEMENT
IS
of
to send a copy of
of record and to
this
the pro se
Opinion
Defendants
and
at
record.
SO ORDERED.
/s/ir^Sr
Mark
S.
Davis
United States District Judge
Norfolk,
Virginia
June \c\ , 2015
Nunc pro tunc to December 15,
2014,
the date the original Opinion and Order
was signed and entered.
31
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