[00:00:00] Speaker 05:
The next case this morning is Choice Hospice versus Access Technology Solutions, number 246002.

[00:00:09] Speaker 05:
Counsel, you may proceed.

[00:00:11] Speaker 03:
Thank you.

[00:00:12] Speaker 03:
May it please the court?

[00:00:13] Speaker 03:
I am Troy Rackham, and with my counsel, co-counsel, Amanda Lewandowski, we have the privilege of representing Access Technology Solutions.

[00:00:24] Speaker 03:
It's long been understood and repeatedly emphasized by this court that cases should be decided on their merits.

[00:00:30] Speaker 03:
The district court erred here because it repeatedly refused to allow the case to be decided on the merits and instead entered a nearly $1 million judgment by default.

[00:00:40] Speaker 03:
So first, the district court erred by not fulfilling its affirmative duty of confirming subject matter jurisdiction.

[00:00:47] Speaker 03:
I'll talk about that issue first.

[00:00:49] Speaker 03:
But second, the district court erred when it failed to set aside the default judgment, when it was undisputed that Access's counsel had appeared in the related, indeed,

[00:00:59] Speaker 03:
identical matter in the AAA arbitration and mediation.

[00:01:03] Speaker 03:
And then third, the district court erred by denying Access's Rule 60B motion on the basis of claim preclusion when Access had not presented the same facts and legal arguments in terms of excusable neglect under Rule 60B1 in its initial Rule 55 motion.

[00:01:22] Speaker 03:
So let's talk about the subject matter jurisdiction first.

[00:01:25] Speaker 03:
This court has repeatedly explained that judgments by default should not be entered without a determination that the court has jurisdiction and that the district court has an affirmative duty to look into its subject matter jurisdiction.

[00:01:38] Speaker 03:
The district court erred here by not doing that.

[00:01:42] Speaker 01:
You don't dispute now that we have the information we have that complete diversity does exist.

[00:01:50] Speaker 03:
With the additional affidavits that were submitted a month ago, it appears that subject matter, that complete diversity exists.

[00:02:00] Speaker 03:
The problem is they didn't fulfill that duty with the district court.

[00:02:03] Speaker 03:
They didn't submit their rule 7.1 B2.

[00:02:05] Speaker 01:
And do you have any authority that says that if complete diversity does exist, that the failure to establish that fact before the district court

[00:02:20] Speaker 01:
deprives this court of jurisdiction if we can, on our own, assess that we do have diversity jurisdiction?

[00:02:29] Speaker 03:
Sure.

[00:02:29] Speaker 03:
I mean, the statute, section 1653, allows the court to permit amendments on appeal upon terms.

[00:02:38] Speaker 03:
That definition of terms is not terribly clear in the case law or in the statute.

[00:02:44] Speaker 03:
But in the Pentaco case, the 1991 case from this court,

[00:02:49] Speaker 03:
The court used the language upon terms to say, well, it needs to remand the case in order to have proper proffers of jurisdiction and to determine whether there are disputed issues of fact with respect to diversity jurisdiction.

[00:03:06] Speaker 03:
And then the Oakland Oil case, which is a 2003 case from this court, actually the court remanded it back to the trial court after a jury trial.

[00:03:17] Speaker 03:
to allow the amendment of the pleadings.

[00:03:21] Speaker 03:
The court didn't do that itself here, even though it said there's probably sufficient information in the record, but it's really the obligation of the district court to evaluate that as opposed to the 10th Circuit.

[00:03:32] Speaker 02:
But the amendment of the pleadings wasn't a formality at that point.

[00:03:36] Speaker 02:
The issue we need to decide is whether we can

[00:03:40] Speaker 02:
discern the actual existence of diversity.

[00:03:43] Speaker 02:
And you seem to be suggesting that that's not an issue.

[00:03:45] Speaker 02:
There is diversity.

[00:03:46] Speaker 02:
It just wasn't properly pled.

[00:03:49] Speaker 03:
I'm saying we haven't had the ability to test it.

[00:03:52] Speaker 03:
If you accept what they put in the affidavit that they filed a month ago, there would be complete diversity.

[00:03:58] Speaker 03:
That's not in the amended complaint.

[00:03:59] Speaker 03:
There's nothing that's been tested to evaluate that.

[00:04:02] Speaker 03:
But back to your original part of the question, in the Oakland oil case,

[00:04:07] Speaker 03:
I don't know if I would describe it as a formality, but what the court said is we affirm, but we're remanding it back to the district court for this amendment of the pleadings.

[00:04:16] Speaker 03:
And if the amendment confirms that there's subject matter jurisdiction, then it would be affirmed.

[00:04:20] Speaker 03:
I don't know what happened after that.

[00:04:22] Speaker 03:
It's not reported.

[00:04:23] Speaker 03:
But I suppose that could be a formality depending on what happened in the district court.

[00:04:27] Speaker 03:
The problem here is none of that occurred until we're in the 10th Circuit.

[00:04:31] Speaker 03:
And if you look at the

[00:04:33] Speaker 03:
complaint, which is the operative document, there are insufficient allegations of diversity jurisdiction.

[00:04:40] Speaker 03:
So let me move on to the second point and that is the failure to give the required notice under Rule 55B.

[00:04:50] Speaker 03:
Rule 55B2 requires, it's in mandatory language, that there should be a written notice of the application for default judgment at least seven days before the hearing when a party whom a default judgment has sought has appeared personally or by a representative.

[00:05:08] Speaker 03:
This court and other circuits have said informal appearances are sufficient to trigger that requirement of notice.

[00:05:16] Speaker 01:
Well, informal appearances in

[00:05:18] Speaker 01:
the litigation, right?

[00:05:22] Speaker 01:
Here there had been no appearance of any kind in the litigation.

[00:05:27] Speaker 01:
There had been an appearance in the arbitration.

[00:05:32] Speaker 03:
Right, and the arbitration is on the same dispute, the same topic.

[00:05:36] Speaker 01:
That may or may not be true, but I'm trying to focus you on whether there was any attempt to make an appearance of any kind

[00:05:46] Speaker 01:
in the pending litigation?

[00:05:49] Speaker 03:
Not before the default judgment was entered.

[00:05:52] Speaker 03:
There was an appearance in the AAA, but courts have said that appearance indicating an intent to defend in a collateral or related proceeding is sufficient even without formal appearance in the litigation itself.

[00:06:06] Speaker 05:
Didn't Mr. Groves say to, was it Vlandia, the lawyer for choice?

[00:06:14] Speaker 05:
Didn't Mr. Groves say at that time that he didn't know if he was representing access in the litigation?

[00:06:20] Speaker 03:
Well, he filed his appearance in the AAA on December 5th.

[00:06:23] Speaker 05:
That's not my question.

[00:06:25] Speaker 05:
Didn't he say that he didn't know if he was representing access in the litigation?

[00:06:30] Speaker 03:
He said at some point he needed to confirm that with plaintiffs, that he didn't know if they wanted, or with, excuse me, access technology.

[00:06:37] Speaker 05:
So at that point, as far as choice is concerned, he isn't involved in the litigation.

[00:06:42] Speaker 03:
Well, at that point, it's uncertain whether he's involved in the litigation.

[00:06:46] Speaker 03:
But under the point of Rule 55B's notice is to allow access,

[00:06:52] Speaker 03:
Dissufficient amount of notice so that can make that determination and that didn't occur here or to appear on the motion to enter default, right?

[00:07:00] Speaker 05:
But didn't you raise this notice issue in your second motion?

[00:07:06] Speaker 03:
Second rule 60B motion access raised it in the second 60B motion, right?

[00:07:10] Speaker 05:
Wasn't raised.

[00:07:12] Speaker 05:
How can you have it considered then when you could have raised it in the first 60B motion?

[00:07:19] Speaker 03:
It could be considered because it goes to whether the judgment is void, which is a 60B4 issue.

[00:07:25] Speaker 05:
No, I understand that, but it could have been raised in the first motion, correct?

[00:07:29] Speaker 03:
It could have been raised in the first motion.

[00:07:31] Speaker 03:
It wasn't.

[00:07:31] Speaker 03:
It wasn't raised in the first motion.

[00:07:32] Speaker 05:
And then your servants of Periklid, why can you raise it in the second one when you could have raised it in the first one?

[00:07:40] Speaker 03:
The answer is because we didn't raise it in the first one, and it was a different basis to void the judgment, you can raise it.

[00:07:47] Speaker 05:
And when it comes to void the judgment... The argument was available.

[00:07:51] Speaker 05:
You could have raised it then.

[00:07:53] Speaker 03:
The argument was available, and it could have been raised then, but that doesn't mean it's waived because it wasn't raised then.

[00:07:58] Speaker 05:
Why not?

[00:07:59] Speaker 05:
What authority do you have that that argument is not waivable?

[00:08:04] Speaker 03:
The rule 55B motion is not, or B2 is not available because it goes to voidness of the judgment.

[00:08:12] Speaker 01:
So your position is you can raise that it's void at any time.

[00:08:15] Speaker 03:
You can raise, it depends on the reason for the voidness, I suppose, but like subject matter jurisdiction or lack of personal jurisdiction, you could raise that at any, well, within the one year period of rule 60B.

[00:08:26] Speaker 05:
But it isn't subject matter jurisdiction.

[00:08:28] Speaker 05:
It's a notice issue.

[00:08:30] Speaker 05:
I realize that, but this court has said... Oh, but you said subject matter jurisdiction.

[00:08:33] Speaker 05:
It's not subject matter jurisdiction.

[00:08:35] Speaker 05:
So you're saying that a void judgment can be contested at any time, maybe if there's a jurisdiction, subject matter jurisdiction issue.

[00:08:45] Speaker 05:
But do the cases say that that voidness argument can be waived?

[00:08:52] Speaker 03:
Well, the Hanley case from this court in 1973 said, a default judgment entered without adequate notice to the parties as required under Rule 55B is void.

[00:09:03] Speaker 05:
Right.

[00:09:03] Speaker 05:
But that argument can be waived, can't it?

[00:09:07] Speaker 05:
When you don't raise it, when you're supposed to raise it.

[00:09:10] Speaker 03:
I haven't found any 10th Circuit case that says a 55B.

[00:09:12] Speaker 05:
How about Winfield Associates, which is a 10th Circuit case?

[00:09:16] Speaker 03:
And that was a different circumstance in the Whitfield associate case.

[00:09:20] Speaker 03:
It wasn't just a 50 feet, 5 v 2 lack of notice.

[00:09:24] Speaker 05:
But it does say that the void judgment argument can be waived.

[00:09:30] Speaker 03:
Right.

[00:09:30] Speaker 03:
But the basis of that void judgment was personal jurisdiction, so that the personal jurisdiction, of course, can be waived.

[00:09:36] Speaker 05:
Why can't this issue be waived?

[00:09:39] Speaker 03:
It could if a party refused to assert that as a defense or didn't make that as a defense.

[00:09:46] Speaker 03:
This is a different circumstance where it's not waived because you raise it in a second or in the 60B motion as opposed to a 55C motion.

[00:09:55] Speaker 05:
I just don't see how you're complying how that would square with servants empirically.

[00:10:01] Speaker 05:
This is a successive rule 60B motion where it was raised.

[00:10:08] Speaker 01:
The first 55 motion, the motion to vacate was on the basis of the... You couldn't bring a 55 motion when you filed that because there had already been a default entered.

[00:10:17] Speaker 03:
Right.

[00:10:17] Speaker 03:
I'm saying the first... So there were two post-default judgment motions here and I call the first one the Rule 55.

[00:10:24] Speaker 01:
Well, but it wasn't a Rule 55 because it couldn't have been a Rule 55 because once you have a default judgment entered, you're under Rule 60.

[00:10:33] Speaker 03:
I understand I was using that as the nomenclature to distinguish the two motions.

[00:10:37] Speaker 01:
Yeah, well, you can use it as nomenclature, but they're both Rule 60 motions.

[00:10:42] Speaker 05:
Right.

[00:10:44] Speaker 05:
Even if it's Rule 55C, that rule provides, and I quote, a court may set aside a final judgment under Rule 60B.

[00:10:52] Speaker 03:
Right.

[00:10:52] Speaker 05:
And that's what I was just going to say.

[00:10:55] Speaker 05:
Aren't you with two 60B motions here?

[00:10:57] Speaker 03:
Right, but the 260B motions were focused on different things.

[00:11:03] Speaker 01:
That's what we call piecemeal litigation.

[00:11:06] Speaker 01:
When you bring the motion, you're supposed to bring the motion on all the grounds available at that time.

[00:11:12] Speaker 01:
you know, what you're doing is bringing one motion that didn't work, okay, we'll come up with different arguments, file a second one.

[00:11:19] Speaker 01:
If those don't work, maybe a third, a fourth, a fifth.

[00:11:22] Speaker 01:
I don't think that under Servants of Pericles, you get to do that.

[00:11:26] Speaker 03:
Well, and the Rule 60B1, the excusable neglect piece, that wasn't filed until later because they needed to get more information about why to factually support the excusable neglect.

[00:11:38] Speaker 02:
Well, it seemed you did it twice.

[00:11:40] Speaker 02:
You advanced excusable neglect, then you added some more facts about it in the second one.

[00:11:45] Speaker 02:
But as to your notice argument, is there any reason to think that the facts supporting your notice argument that were advanced in the second Rule 60 motion were not available to you the first time?

[00:11:57] Speaker 03:
Those facts were available to access the time it filed the rule.

[00:12:02] Speaker 03:
55, which incorporates Rule 60B motion.

[00:12:05] Speaker 03:
I concede that.

[00:12:07] Speaker 01:
So all the facts in the second motion were available to you when you filed the first motion?

[00:12:11] Speaker 03:
No, not all of the facts.

[00:12:13] Speaker 03:
The facts related to the excuse and the neglect piece weren't available at the time of the first motion.

[00:12:18] Speaker 01:
Well, the employee, I forget her name, I'm sorry.

[00:12:21] Speaker 01:
Ms.

[00:12:22] Speaker 01:
Lennox.

[00:12:23] Speaker 01:
Ms.

[00:12:23] Speaker 01:
Lennox had been back for three weeks before the first motion was filed.

[00:12:30] Speaker 03:
And they were having communication difficulties and information difficulties getting the information.

[00:12:35] Speaker 00:
I think she could have said that.

[00:12:36] Speaker 03:
Yeah, and I don't know why they put it in here.

[00:12:38] Speaker 03:
That's why they put the footnote, though, in the first motion of saying, we reserve the right because we're trying to get more information.

[00:12:45] Speaker 02:
Was that additional information necessary?

[00:12:48] Speaker 02:
I mean, did it really, even assuming it came up later and you didn't have it the first time, was it dispositive in any way of the, you already made your excusable neglect argument.

[00:12:59] Speaker 03:
It was necessary for the excusable neglect piece of it.

[00:13:03] Speaker 02:
Why was the information that you added, the facts that you developed for the second Rule 60?

[00:13:10] Speaker 02:
on that issue, why were they necessary to resolve the excusable neglect argument?

[00:13:15] Speaker 03:
Because they needed to know why they didn't receive the, they didn't have an acknowledgement of that service piece of it and that was, that information is necessary because to evaluate excusable neglect you have to know what the defendant did and what their processes were and that information was necessary.

[00:13:31] Speaker 03:
It wasn't necessary for the 55B2.

[00:13:33] Speaker 01:
You knew on the first motion, they knew that they had been told they weren't served.

[00:13:39] Speaker 01:
You already knew that?

[00:13:40] Speaker 01:
Yes.

[00:13:41] Speaker 03:
I mean... But they didn't know what had happened.

[00:13:45] Speaker 02:
It doesn't seem that that... I think that's my question too.

[00:13:48] Speaker 05:
Did they know they hadn't been served by January 6 when Choices Council told Mr. Groves about the default judgment?

[00:13:58] Speaker 03:
Yes, they knew at that point and the default judgment had already been answered.

[00:14:01] Speaker 05:
So we're at January 6.

[00:14:02] Speaker 05:
The motion doesn't even get filed until March 3rd.

[00:14:06] Speaker 05:
It seems to be ample time to figure out what happened.

[00:14:09] Speaker 03:
They were working through getting additional counsel and that sort of thing.

[00:14:14] Speaker 03:
So whether it was ample time or not, that's why they filed the second one is because they needed further information about what had happened.

[00:14:21] Speaker 05:
Well, didn't excusable neglect get raised in the March 3rd motion and then Axon said, well, we're not going to raise it now.

[00:14:31] Speaker 05:
We're not going to pursue that now.

[00:14:33] Speaker 03:
No, I respectfully disagree.

[00:14:34] Speaker 05:
I think in the first motion it was focused on... Well, was it raised at all in the briefing?

[00:14:39] Speaker 05:
Wasn't it discussed somewhere?

[00:14:40] Speaker 03:
It was discussed in the response brief.

[00:14:42] Speaker 03:
And then in the reply, we made an argument in the response to that reply, or in the replying related to the response.

[00:14:51] Speaker 03:
But it wasn't a basis for relief that we were asking, that AXIS asked the district court to rule on in the motion.

[00:14:57] Speaker 03:
And so when the district court considered that issue in its order, it said, I'm not considering it because it was raised for the first time in the reply.

[00:15:05] Speaker 01:
Well, it ruled on two bases.

[00:15:07] Speaker 01:
It ruled first.

[00:15:08] Speaker 01:
that it was denying it because it was raised for the first time in the reply, and then it also ruled on the merits and said, you didn't provide any information other than this footnote saying, we're reserving the right to give you an argument.

[00:15:24] Speaker 03:
Right, and that was axis of position, is we don't have enough information, so we need to get that information and reserve the right.

[00:15:30] Speaker 03:
And with that, I'm out of time, so thank you.

[00:15:32] Speaker 03:
Thank you, Council.

[00:15:39] Speaker 04:
Good morning.

[00:15:41] Speaker 04:
Mitch Blackburn and Hilary Zolondia on behalf of Choice.

[00:15:45] Speaker 04:
Let's try to knock out the jurisdictional issue real quick.

[00:15:49] Speaker 04:
I have a motion to amend it.

[00:15:52] Speaker 04:
The disclosure statement that was filed in the district court, I mean, not a model of clarity, but what it did say was that Axis is a citizen of Texas.

[00:16:01] Speaker 04:
None of the members of Choice are citizens of Texas.

[00:16:05] Speaker 04:
Technically, I think that satisfies the requirement.

[00:16:07] Speaker 04:
But more importantly, to your point, Title 28, Section 1653 allows us to skip all the needless remand, file an amended complaint, come back up.

[00:16:20] Speaker 01:
I mean, in fairness, it should have been done in the district court.

[00:16:23] Speaker 04:
Excuse me?

[00:16:24] Speaker 01:
It should have been done in the district court.

[00:16:28] Speaker 04:
That's correct.

[00:16:29] Speaker 01:
That is correct.

[00:16:31] Speaker 01:
We don't take facts.

[00:16:32] Speaker 01:
We don't find facts.

[00:16:33] Speaker 01:
We don't take evidence.

[00:16:35] Speaker 04:
Well, my understanding is that that is permissible under Title 28, Section 1653 if I'm only trying to correct a statement as opposed to providing a fact.

[00:16:48] Speaker 04:
I noticed there was one case out of the Second Circuit, Jacobs v. Patent Enforcement Fund.

[00:16:54] Speaker 04:
Same thing.

[00:16:55] Speaker 04:
In the court below, there were defective allegations regarding diversity.

[00:16:59] Speaker 04:
It wasn't discovered until it got up to the appellate court.

[00:17:02] Speaker 04:
The appellate court requested supplemental briefing.

[00:17:04] Speaker 04:
Affidavits were submitted.

[00:17:06] Speaker 04:
The court considered the affidavits and then considered the issue resolved.

[00:17:10] Speaker 05:
Let me ask it this way.

[00:17:12] Speaker 05:
Sure.

[00:17:13] Speaker 05:
Was it appropriate for the district court to enter a default judgment without adequately determining whether there was diversity jurisdiction?

[00:17:24] Speaker 04:
Was it appropriate?

[00:17:26] Speaker 04:
I've seen the cases.

[00:17:28] Speaker 04:
They say that before a court enters a default judgment, they're supposed to determine their jurisdiction.

[00:17:33] Speaker 04:
But I think someone up here made the point earlier that really what is the existence and not the determination.

[00:17:40] Speaker 04:
And I don't think there's any dispute that at the time the court entered the default judgment in the district court level, there was, in fact, diversity jurisdiction.

[00:17:51] Speaker 04:
Does that answer your question?

[00:17:52] Speaker 02:
So you're drawing a distinction between the actual existence of diversity jurisdiction and compliance with procedural requirements, right?

[00:17:59] Speaker 04:
Correct.

[00:18:00] Speaker 02:
But why is that applicable here?

[00:18:04] Speaker 02:
I mean, aren't they trying to test the nature of the diversity allegations themselves?

[00:18:09] Speaker 02:
They had no opportunity to test the facts.

[00:18:12] Speaker 04:
Well, as far as I know, there's been no test at all.

[00:18:16] Speaker 04:
The only test, if you will.

[00:18:18] Speaker 04:
They've had the affidavits that were submitted to this court.

[00:18:22] Speaker 04:
And the only thing that I saw was one gentleman's name was spelled with an O one time and without an O the next.

[00:18:29] Speaker 04:
And I don't believe counsel alluded to the fact that if he got a remand and came back down, that he intended to enter into some forensic challenge to whether or not there was diversity jurisdiction.

[00:18:44] Speaker 01:
I'm switching now to the merits.

[00:18:48] Speaker 01:
The district court made its decision based on claim preclusion.

[00:18:54] Speaker 00:
Yes.

[00:18:55] Speaker 01:
I mean, is that really the correct analysis here?

[00:19:00] Speaker 04:
Yeah.

[00:19:02] Speaker 04:
Whether you call it claim preclusion, whether you call it waiver, the principle is simply this.

[00:19:09] Speaker 04:
What's barred is what I argued or what I could have argued.

[00:19:14] Speaker 04:
I personally think that probably waiver is the cleaner way to go.

[00:19:17] Speaker 04:
Waiver is consistent with servants of paraclete.

[00:19:22] Speaker 04:
So I'm trying not to get too caught up in whether or not the elements of claim preclusion are here.

[00:19:29] Speaker 04:
But that being said, I think that they are.

[00:19:34] Speaker 02:
I think that certain- But you argued the ball of the case, right?

[00:19:37] Speaker 02:
Excuse me?

[00:19:38] Speaker 02:
argument about law of the case?

[00:19:42] Speaker 02:
The question is why do we need to reach any of those doctrines here?

[00:19:46] Speaker 02:
Do we need to care about claim preclusion or law of the case if we have servants of paraclete and well-settled law saying how we treat successive Rule 60 motions?

[00:19:55] Speaker 04:
I think part of it was responding to what the district court put in the order.

[00:19:58] Speaker 04:
I think the correct analysis though is servants of paraclete waiver.

[00:20:03] Speaker 04:
If you have the facts, you've got to make the argument.

[00:20:10] Speaker 01:
Does it matter that that's not what the district court relied on?

[00:20:15] Speaker 04:
Well, I think it's an issue of law, right?

[00:20:17] Speaker 04:
I mean, in that regard, you know, the standard, overarching standard, abuse of discretion.

[00:20:24] Speaker 04:
But on this particular issue, whether it's claim preclusion or whether it's waiver, that's an issue of law.

[00:20:29] Speaker 04:
I think you can substitute your reasoning for the district court at any time.

[00:20:33] Speaker 05:
Well, would it be more accurate to say

[00:20:38] Speaker 05:
that it was error for the district court to call it claim preclusion.

[00:20:44] Speaker 05:
But to rule for you, we'd have to do it on the alternative ground of waiver under servants of Pericle.

[00:20:55] Speaker 05:
Isn't that what you're... I mean, I don't want to put words in your mouth, but it seems like that's what you're arguing.

[00:21:03] Speaker 04:
Exactly.

[00:21:04] Speaker 04:
You know, when the district court originally applied the rule that I'm not going to consider the argument in the reply because it wasn't included in the opening brief.

[00:21:15] Speaker 04:
It's a variation of the same thing.

[00:21:17] Speaker 04:
Now, I think that what he concluded was the original motion and the determination on the original motion foreclosed the arguments that were being made on the second motion.

[00:21:32] Speaker 04:
Whether it was waiver or whether it was claim preclusion,

[00:21:37] Speaker 04:
I think, well, I'll go back to what I said earlier.

[00:21:40] Speaker 04:
I think waiver is the way to go.

[00:21:42] Speaker 05:
I think that is the proper analysis.

[00:21:45] Speaker 05:
Could I get to another question?

[00:21:47] Speaker 05:
Sure.

[00:21:48] Speaker 05:
This court has said, and the case is called Inray Four Seasons Security Litigation, it said that this court said that a judgment

[00:21:58] Speaker 05:
may be void under Rule 60B4 if the court acted in a manner inconsistent with due process of law.

[00:22:07] Speaker 05:
So why shouldn't Access be able to raise its due process notice argument in its second motion to vacate the default judgment?

[00:22:15] Speaker 05:
Because that's what the issue is about.

[00:22:18] Speaker 05:
It's about due process.

[00:22:20] Speaker 05:
They're saying they didn't know about the motion for default judgment.

[00:22:27] Speaker 05:
Couldn't they raise that even if they didn't raise it in their first 60B motion?

[00:22:35] Speaker 04:
I think the question is, did they know?

[00:22:36] Speaker 04:
Did they know that they had that argument at the time?

[00:22:40] Speaker 05:
Well, let's assume they did.

[00:22:42] Speaker 05:
OK.

[00:22:42] Speaker 05:
OK.

[00:22:43] Speaker 05:
Does the Servants of Paraclete rule about successive rule 60B motions apply when the claim is a violation due process?

[00:22:56] Speaker 05:
as voiding the judgment?

[00:22:59] Speaker 04:
I guess the underlying question then would be whether or not the judgments void, correct, based on the facts and circumstances.

[00:23:06] Speaker 04:
I don't think so.

[00:23:07] Speaker 04:
I think that even in Pericles, they said, well, and you were a little vague in that case as to what might or might not constitute a basis for voiding the judgment.

[00:23:16] Speaker 04:
But I think under these facts, these particular circumstances, that those exceptional circumstances, if you will, aren't present.

[00:23:25] Speaker 05:
Well, let me rephrase.

[00:23:27] Speaker 05:
Okay.

[00:23:28] Speaker 05:
If the argument is the judgment is void because of a lack of due process notice, and they could have put that in the first motion, but they didn't, is that a waivable argument?

[00:23:52] Speaker 05:
Are there some arguments that just can't be waived?

[00:23:55] Speaker 04:
Correct.

[00:23:55] Speaker 05:
Yeah.

[00:23:56] Speaker 05:
Yeah.

[00:23:56] Speaker 05:
OK.

[00:23:57] Speaker 04:
So what's the answer?

[00:23:58] Speaker 04:
The answer is that if it was an argument regarding subject matter jurisdiction, I would say it can't be waived.

[00:24:05] Speaker 05:
You got a case?

[00:24:07] Speaker 05:
On subject matter jurisdiction?

[00:24:10] Speaker 05:
No.

[00:24:10] Speaker 05:
That would apply to the question I just asked you.

[00:24:13] Speaker 04:
Well, I'll tell you, a case in 1979, Brown versus McCormick, 608F2nd, 410.

[00:24:21] Speaker 04:
And granted, this was dictable.

[00:24:22] Speaker 04:
But what the court said was that they expressed some doubt that the failure to receive a notice of the request for a default judgment hearing rises to the level of a due process violation.

[00:24:33] Speaker 04:
If it doesn't rise to the level of a due process violation, my contention is the judgment wouldn't be void.

[00:24:38] Speaker 04:
Winfield versus Stonecypher.

[00:24:40] Speaker 04:
There's another example.

[00:24:42] Speaker 04:
In that case, they said, OK, we're going to assume for purposes of discussion that there was an appearance in the case below.

[00:24:49] Speaker 04:
They said the default judgment is not necessarily void.

[00:24:52] Speaker 04:
Failure to give notice should not usually be treated as so serious as to render the judgment void.

[00:25:00] Speaker 04:
So I'm trying to figure out, OK.

[00:25:02] Speaker 05:
But the argument you're making is on the merits

[00:25:07] Speaker 05:
of the claim that the judgment is void.

[00:25:11] Speaker 05:
The question I have is whether that argument can be waived if it's raised in a second successive Rule 60B motion.

[00:25:25] Speaker 04:
And my answer is yes, for the reasons that Judge McHugh made earlier.

[00:25:30] Speaker 04:
At what point do you say enough?

[00:25:32] Speaker 04:
At what point do you say, oh, no, you had the opportunity to raise it on the first motion.

[00:25:35] Speaker 04:
You didn't.

[00:25:36] Speaker 04:
Well, OK, you filed a second motion.

[00:25:38] Speaker 04:
You still didn't raise it.

[00:25:40] Speaker 04:
What about a third?

[00:25:41] Speaker 04:
At what point do you have to say, and let's face it, the gentleman had the knowledge at the time he filed the first motion.

[00:25:50] Speaker 04:
I know you're assuming that the judgment's void, and therefore you're assuming some facts that

[00:25:55] Speaker 04:
that aren't before us, but I do think that that position, that the judgment was void for lack of receiving notice, I think that is subject to waiver and I think it's waived when it wasn't asserted in the first motion.

[00:26:12] Speaker 05:
I'm just looking for a little case law that would back up what you just said.

[00:26:17] Speaker 04:
Well, and as I said, the only thing I could really find that I thought was to the point was Winfield and Brown, both of which granted they express just the skepticism about whether or not there was a void judgment by virtue of a failure to receive notice.

[00:26:36] Speaker 04:
So I understand that's not really directly.

[00:26:38] Speaker 01:
Winfield says it's not void.

[00:26:40] Speaker 04:
Excuse me?

[00:26:41] Speaker 01:
Winfield says it's not void.

[00:26:42] Speaker 01:
That's correct.

[00:26:44] Speaker 01:
It doesn't raise a question.

[00:26:45] Speaker 04:
But the question asked me to presuppose that it was.

[00:26:47] Speaker 01:
Right, to assume it's void.

[00:26:48] Speaker 01:
But if you assume it's void, the rule says it can be raised at any time, right?

[00:26:53] Speaker 04:
It can be raised at any time.

[00:26:55] Speaker 04:
The question then becomes how many times?

[00:26:57] Speaker 04:
Right.

[00:27:02] Speaker 04:
There was a lot of questions earlier about notice and about whether or not an informal appearance constitutes notice.

[00:27:10] Speaker 04:
You know, I'll acknowledge there's a split.

[00:27:12] Speaker 04:
You know, you've got the Seventh Circuit, which is, no, you've got to file.

[00:27:16] Speaker 04:
And then there are the cases that talk about whether or not there's been a clear indication of an intent to defend.

[00:27:25] Speaker 04:
I don't know that the Tenth Circuit's necessarily come down one way or the other on that.

[00:27:29] Speaker 04:
I personally, and not because I'm sitting over there, I personally think that a brighter line, especially in today's

[00:27:38] Speaker 04:
electronic society makes sense.

[00:27:41] Speaker 04:
But the fact of the matter is that in this particular case, even if we adopt a more ambiguous standard of clear indication to defend, there was none.

[00:27:53] Speaker 04:
Council, undisputed fact, found out about the litigation on December 5th.

[00:27:59] Speaker 04:
There was no contact, no contact at all between December 5th and January 6th.

[00:28:06] Speaker 04:
At what point in time?

[00:28:08] Speaker 04:
as choice expected to say, oh, there's a clear indication of an intent to defend when there was no contact at all.

[00:28:18] Speaker 04:
In fact, no contact at all would suggest to the contrary.

[00:28:22] Speaker 04:
So the idea that there was an informal appearance under these facts, I don't think it's just not there.

[00:28:31] Speaker 04:
I see I'm just about out of time.

[00:28:35] Speaker 04:
So if there are any other questions,

[00:28:40] Speaker 04:
Thank you.

[00:28:44] Speaker 05:
Is there any rebuttal time?

[00:28:46] Speaker 05:
Okay.

[00:28:47] Speaker 05:
Time has expired, so we will have the case submitted.

[00:28:52] Speaker 05:
Council, excuse me, thanks for your arguments this morning.