120 F.3d 21 (2nd Cir. 1997), 1000, Beller & Keller v. Tyler

Docket Nº:1000, Docket 96-7943.
Citation:120 F.3d 21
Party Name:BELLER & KELLER, Plaintiff-Appellee, v. Joseph TYLER, Defendant, and Tyrone Kindor, Defendant-Appellant.
Case Date:July 21, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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120 F.3d 21 (2nd Cir. 1997)

BELLER & KELLER, Plaintiff-Appellee,


Joseph TYLER, Defendant,


Tyrone Kindor, Defendant-Appellant.

No. 1000, Docket 96-7943.

United States Court of Appeals, Second Circuit

July 21, 1997

Argued March 4, 1997.

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Roy H. Carlin, New York City, for Plaintiff-Appellee.

David O. Wright, Shrub Oak, NY, for Defendant-Appellant.

Before: WALKER, McLAUGHLIN, Circuit Judges, and CHIN, District Judge. [*]

McLAUGHLIN, Circuit Judge:

Defendant appeals from an order entered July 3, 1996 in the United States District Court for the Southern District of New York (Patterson, J.). The order denied defendant's motion, pursuant to Federal Rule of Civil Procedure 60(b)(4), to vacate, as void, the default judgment entered against him on December 19, 1994.


On October 21, 1994, Beller & Keller ("B & K"), a New York law firm, brought this breach of contract action against Arizona residents Tyrone Kindor ("Kindor") and Joseph Tyler ("Tyler"). Jurisdiction rested upon diversity of citizenship. 28 U.S.C. § 1332. The action seeks to recover legal fees and expenses the defendants allegedly owe the firm.

B & K had Tyler served with a summons and complaint on October 25, 1994. After several unsuccessful attempts to have Kindor served personally, B & K opted to serve him under New York's "nail and mail" provision, CPLR § 308(4), an option available under Federal Rule of Civil Procedure 4(e)(1) ("[S]ervice ... may be effected in any judicial district of the United States: (1) pursuant to the law of the state in which the district court is located...."). On November 2, 1994, B & K had the summons and a copy of the complaint "nailed" to Kindor's door, and mailed him copies.

Both defendants failed to respond. On December 6, 1994, B & K filed an ex parte application for a default judgment, which the district court granted. Judgment was entered against the defendants, jointly and severally, for $94,028.84. 1

On December 21, 1994, the defendants, invoking Federal Rules of Civil Procedure 55(c) and 60(b)(1), filed a motion to vacate the default judgment. Both Kindor and Tyler filed affidavits stating that they had a "meritorious defense" to B & K's claim. They also asserted that their failure to respond was due to "excusable neglect."

Following a hearing on December 23, 1994, the district court denied the defendants' motion to vacate the default judgment. The

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defendants never filed a notice of appeal from that order.

Over a year later, on March 15, 1996, defendant Kindor filed a second motion to vacate the default judgment. 2 Kindor cited Federal Rule of Civil Procedure 60(b)(4), which states that "the court may relieve a party or a party's legal representative from a final judgment ... [if] the judgment is void."

Kindor maintains that the default judgment is void because it was entered before the time to answer had expired, and, therefore, his argument runs, its entry violated his right to due process. More specifically, Kindor argues that since B & K elected to serve him under the CPLR's "nail and mail" method of service, the time to answer must be calculated by reference to the CPLR, not the Federal Rules of Civil Procedure.

The district court determined that the default judgment was not entered prematurely, and denied Kindor's motion. Kindor now appeals.


I. Procedural Quirks

We first consider whether the district court should even have entertained Kindor's second motion to vacate the default judgment.

1. Is the Instant Motion Properly Brought Under Rule 60(b)(4) ?

Rule 60(b) lists six grounds for "reliev[ing]" a party from a final judgment: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment on which it is based has...

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