Opinion
Evelyn Aimee De Jesus-Rodriguez, Tampa, FL, for Plaintiffs.
Nestor J. Navas-D’Acosta, Navas & Rodriguez PSC, San Juan, PR, for Defendants.
MEMORANDUM AND ORDER
BESOSA, District Judge.
Defendant Sonic Cavitation LLC ("Sonic") moves to set aside the default judgment pursuant to Federal Rules of Civil Procedure 60(b)(4) ("Rule 60(b)(4)") and 60(d) ("Rule 60(d)"). (Docket No. 31.) For the reasons set forth below, the Court DENIES Sonic’s motion. (Docket No. 31.)
I. BACKGROUND
This case was closed on December 27, 2016, when the Court granted plaintiffs Xavier Vilaró, Myrna Cano, and their conjugal partnership (collectively, "plaintiffs")’s request for a default judgment against Sonic and entered judgment in favor of the plaintiffs against Sonic. (Docket Nos. 27 and 30.)
On October 9, 2018, nearly two years after judgment was entered, Sonic filed a motion to set aside the judgment pursuant to Rules 60(b)(4) and 60(d). (Docket No. 31.) Sonic argues that it "failed to defend itself against the complaint, due to fraud, misrepresentations, deceit and misconduct on [the] part of it’s [sic] former CEO and General Counsel, at the time of service of process." Id. at p. 2. Sonic contends that it "never gained knowledge of this litigation ... until after the Judgment was issued." Id.
II. DISCUSSION
A. Rule 60(b)(4)
Rule 60(b)(4) provides that a court may relieve a party from a final judgment when "the judgment is void," Fed.R.Civ.P. 60(b)(4), but "only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard." United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) (citations omitted). Motions pursuant to Rule 60(b)(4) "must be made within a reasonable time." Fed.R.Civ.P. 60(c)(1). A judgment "is not void simply because it is or may have been erroneous; it is void only if, from its inception, it was a legal nullity." United States v. One Rural Lot No. 10,356, 238 F.3d 76, 78 (1st Cir. 2001).
Courts considering Rule 60(b)(4) motions for jurisdictional defects "generally have reserved relief only for the exceptional case in which the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction." Id. (citations omitted). "Due process requires notice ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ " Id. at 272, 130 S.Ct. 1367 (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ). Relief pursuant to Rule 60(b) is "extraordinary in nature," and motions invoking Rule 60(b) "should be granted sparingly." Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002).
Sonic’s jurisdictional arguments are unavailing. Sonic argues that it "does not currently and has never had operations in Puerto Rico," nor has it "done business with any vendors or support services in Puerto Rico." (Docket No. 31 at p. 10.) It maintains that "[t]he only contact with Puerto Rico is the fact that Plaintiff is a resident of Puerto Rico," and that it "has no other contacts with Puerto Rico." Id. The plaintiffs’ complaint, however, arises out of many Sonic investor meetings and presentations that allegedly occurred in Puerto Rico beginning in April 2013. (Docket No. 11, Ex. 1 at p. 2.) Based on those contacts, this case presents more than an "arguable basis" for jurisdiction. See Espinosa, 559 U.S. at 271, 130 S.Ct. 1367; Docket No. 11, Ex. 1 at pp. 2-3.
Sonic’s notice arguments are similarly unpersuasive. Sonic claims that its former CEO and General Counsel, Ronald Swanson ("Swanson"), "engaged in conduct involving: ‘dishonesty, fraud, deceit, misrepresentation; and ... engaged in conduct that severely interfered with the administration of justice." (Docket No. 31 at p. 4.) According to Sonic, Swanson "did not notify [Sonic] of the summons and complaint or provide it copies." Id. at pp. 4-5. Sonic, however, received actual notice of the complaint in April 2016 through a receptionist, not through Swanson. (Docket No. 18, Exs. 2-3.) The complaint also asserts that Swanson was removed as CEO in July 2015 and "suspended of all of his positions" in August 2015, over a year after the complaint was served. (Docket No. 11, Ex. 1 at p. 5.) Sonic fails to address these contentions or demonstrate how Swanson may have interfered with Sonic’s ability to receive notice of the complaint one year after he was suspended from the company.
The process server, Joe Ricondo, declared under penalty of perjury that he received the summons for Sonic and "served the summons on Terri Hollis, Receptionist, who is designated by law to accept service of process on behalf Reg Agent, GG International on 04/18/2016 at 12:52pm at 500 N. Rainbow Blvd., Ste. 300, Las Vegas, NV 89107." (Docket No. 18, Ex. 2.) GG International is published as the address for Sonic officers on the registry of the Secretary of State for Nevada. (Docket No. 18, Ex. 3.)
The plaintiffs’ actual service more than satisfies Sonic’s due process rights. See Espinosa, 559 U.S. at 272, 130 S.Ct. 1367 (holding that the plaintiffs "received actual notice of the filing and contents of [the defendant’s] plan," which "more than satisfied [the plaintiff’s] due process rights"). Because Sonic presents no due process or jurisdictional issue that merits Rule 60(b)(4) relief, the Court DENIES Sonic’s motion to set aside the judgment pursuant to Rule 60(b)(4). (Docket No. 31.)
B. Rule 60(d)
Rule 60(d) allows a court to "set aside a judgment for fraud on the court." Fed.R.Civ.P. 60(d)(3). Fraud on the court "requires ‘an unconscionable scheme or the most egregious conduct designed to corrupt the judicial process,’ " Irving v. Town of Camden, No. 12-1850, 2013 WL 7137518, at *1 (1st Cir. Apr. 17, 2013) (quoting Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 133 (1st Cir. 2005) ), a scheme "calculated to interfere with the judicial system’s ability impartially to adjudicate a matter involving an officer of the court." Roger Edwards, 427 F.3d at 133 (internal quotation marks and citations omitted). The "bribery of a judge, or the use of counsel to exert improper personal influence on the court" are examples of fraud on the court. Id. (internal quotation marks and citations omitted).
Sonic fails to establish any scheme or conduct that could amount to fraud on the court. Sonic does not suggest any bribery of a court officer or improper personal influence on court personnel. Nor do Sonic’s contentions rise to the level of "the most egregious conduct" designed to "interfere with the judicial system’s ability impartially to adjudicate a matter involving an officer of the court." See Roger Edwards, 427 F.3d at 133.
Sonic’s lackadaisical approach to this litigation undermines its own arguments. Sonic asserts that Swanson engaged in fraudulent conduct that impeded Sonic from learning about this litigation. (Docket No. 31 at pp. 5-6.) It argues that its failure to defend itself is attributable solely to Swanson’s misconduct, and that Sonic "never gained knowledge of this litigation." Id. at p. 2. To support its contentions, Sonic provides the Specification of Charges against Swanson issued by the Board of Professional Responsibility of the District of Columbia Court of Appeals that discusses this action. (Docket No. 31, Ex. 3.) The Specification of Charges was filed on November 27, 2017. (Docket No. 31, Ex. 3 at p. 21.) Sonic, nevertheless, waited nearly one year before requesting to set aside judgment before this Court. (Docket No. 31 at p. 13.)
Because Sonic fails to establish a fraud on the court, the Court DENIES Sonic’s motion to set aside the judgment pursuant to Rule 60(d). (Docket No. 31.)
III. CONCLUSION
For the reasons set forth above, Sonic’s motion to set aside the judgment is DENIED. (Docket No. 31.)
IT IS SO ORDERED.