United States District Court, S.D. New York
February 4, 2005.
BURDA MEDIA, INC., and BURDA HOLDING, GmbH & CO. KG, a German Limited Partnership, Plaintiffs,
FRITZ G. BLUMENBERG, CHRISTIAN VIERTEL, HOT LINE DELIVERY, INC., TELECOMMUNICATION PARTNERS LIMITED, TRANSVIDEO, TV BROADCAST CENTER, AGATE REALITY and SALVADORA BLUMENBERG, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
By letters dated August 25, October 11, and October 12 of 2004,
defendant Christian Viertel ("Viertel")*fn1 has moved for
reconsideration of the Court's May 18, 2004 memorandum opinion,
which denied his motion to vacate the April 10, 2000 default
judgment entered against him. See Burda Media, Inc. v.
Blumenberg, No. 97 Civ. 7167 (RWS), 2004 WL 1110419 (S.D.N.Y.
May 18, 2004) `the "Memorandum Opinion'".
Apparently proceeding pursuant to Fed.R.Civ.P. 55(b) and
60(b) (4), Viertel seeks relief from the default judgment on the
grounds that the Court lacked jurisdiction and the default
judgment is void because Viertel was not properly served by
plaintiffs pursuant to Rule 4(f), which provides that:
Unless otherwise provided by federal law, service
upon an individual from whom a waiver has not been
obtained and filed, other than an infant or an
incompetent person, may be effected in a place not
within any judicial district of the United States . . .
by any internationally agreed means reasonably
calculated to give notice, such as those means
authorized by the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents . . .
Fed.R.Civ.P. 4(f)(1). Viertel argues that the service upon him
in Cap Ferrat, France was improper under the relevant provisions
of the Hague Convention, thereby violating Rule 4(f).
As an initial matter, it should be noted that Viertel's motion
is timely pursuant to Fed.R.Civ.P. 60(b)(4). According to the
language of Rule 60(b), a Rule 60(b)(4) motion must be "made
within a reasonable time." Fed.R.Civ.P. 60(b). However,
"courts have been `exceedingly lenient in defining the term
`reasonable time,' with respect to voidness challenges. In fact,
it has been oft-stated that, for all intents and purposes, a
motion to vacate a default judgment as void `may be brought at
any time.'" Central Vermont Public Service Corp. v. Herbert,
341 F.3d 186, 189 (2d Cir. 2003) (quoting Beller & Keller v.
Tyler, 120 F.3d 21, 24 (2d Cir. 1997)); Velez v. Vassallo,
203 F. Supp. 2d 312, 318
(S.D.N.Y. 2002) ("Nearly overwhelming authority exists for the
proposition that there are no time limits to a challenge to a
void judgment because of its status as a nullity.") (quoting
United States v. One Toshiba Color Television, 213 F.3d 147,
157 (3d Cir. 2000)).
"Unlike motions made pursuant to other subsections of Rule
60(b), the court lacks discretion with respect to a motion made
under Rule 60(b)(4); if void, the court must vacate the
judgment." Tuff-N-Rumble Management, Inc. v. Sugarhill Music
Pub, Inc., 99 F. Supp. 2d 450, 455 (S.D.N.Y. 2000); Herbert,
341 F.3d at 189 ("The district court has no discretion in ruling
on a 60(b)(4) motion, the judgment is either void or it is not.")
The procedural requirement of effective service of process must
be satisfied before a Court can assert personal jurisdiction over
a defendant. A judgment obtained in the absence of personal
jurisdiction is void within the meaning of Rule 60(b)(4). "Hence,
a default judgment entered against the defendant by means of
improper service is void under Rule 60(b)(4)." Local 78,
Asbestos, Lead & Hazardous Waste Laborers, AFL-CIO v. Termon
Construction, Inc., 01 Civ. 5589 (JGK), 2003 WL 22052872 at *2
(S.D.N.Y. Sept. 2, 2003) (internal citations omitted).
Furthermore, this Court has jurisdiction to entertain Viertel's
motion for reconsideration despite the pendency of his appeal in
the Second Circuit. The Second Circuit has stated that a district
court may entertain and deny a Rule 60(b) motion filed during the
pendency of an appeal without disturbing the jurisdiction of the
Court of Appeals. Toliver v. County of Sullivan, 957 F.2d 47,
49 (2d Cir. 1992) (per curiam); Ryan v. United States Line Co.,
303 F.2d 430, 434 (2d Cir. 1962). The Second Circuit has made
plain, however, that "the district court may grant a rule 60(b)
motion after an appeal is taken only if the moving party obtains
permission from the circuit court." Toliver, 957 F.2d at 49
(emphasis in original); accord King v. First American
Investigations, Inc., 287 F.3d 91, 94 (2d Cir. 2002).
Turning to the merits of Viertel's motion for reconsideration,
it is clear from his submissions that he seeks merely to
relitigate the previously considered question of whether he was
properly served in France pursuant to the relevant provisions of
the Hague Convention. Based on a careful review of the record and
relevant authority, the Court concluded in the Memorandum Opinion
that service on Viertel was properly perfected. Viertel's
submissions of August 25, October 11, and October 12 of 2004,
fail to set forth any facts or any legal authority demonstrating
that this determination was in error. Rather, Viertel merely
portions of the record that have already been considered.
Therefore, his motion for reconsideration is denied.
It is so ordered.