# Roy E. Fajen v. Foundation Reserve Insurance Company, Inc.

> Court of Appeals for the Tenth Circuit · July 19, 1982 · 683 F.2d 331

URL: https://www.frixlaw.com/law-library/cases/9469465

## Case

- **Full name:** Roy E. FAJEN, Plaintiff-Appellant, v. FOUNDATION RESERVE INSURANCE COMPANY, INC., Defendant-Appellee
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** July 19, 1982
- **Citations:** 683 F.2d 331
- **Precedential status:** Published
- **Opinion:** Dissent by Seth
- **Judges:** Doyle, Seth, Seymour
- **Cited by:** 417 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469465

## How later opinions describe it (automated extraction)

- noting that the Tenth Circuit has held that “the required federal controversy . . . must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal”
- noting that “[r]emoval statutes are to be strictly construed...all doubts are to be resolved against removal.”

## Opinion text

SETH, Chief Judge,
dissenting:
I must dissent from the majority opinion because in my view it is based on an analysis which is directed to the nature of the cause of action rather than on the protection of a final judgment entered by the United States District Court.
The plaintiff appeals from a judgment entered by the United States District Court of New Mexico (which had ordered removal of the action from state court) denying a motion to vacate a previous federal judgment and dismissing the action for lack of personal jurisdiction. The events leading to this judgment are as follows.
In 1971 the appellant, Roy Fajen, filed suit in a Nevada district court against William Sublett and Nelda McCallister seeking damages for personal injuries sustained in an automobile accident which occurred on April 4,1970 near Reno, Nevada (Cause No. 274721). The plaintiff served the defendants pursuant to a substituted service of *335 process statute. Under the statute operators of motor vehicles involved in accidents in Nevada could be served by leaving process with the director of the department of motor vehicles. The plaintiff also had to send by registered or certified mail notice of the service and a copy of the process to the defendant at the address supplied by the accident report or at the best address available to the plaintiff. Along with the original process the plaintiff had to file a return receipt and an affidavit of compliance. Nev.Rev.Stat. § 14.070. The plaintiff sought to utilize the Nevada statute. The defendants never appeared and the Nevada court entered a judgment of default on December 5, 1972.
On April 20, 1977 the plaintiff filed suit in the United States District Court of New Mexico on the unsatisfied Nevada judgment (No. CIV 77-211-M). In this suit he named the present defendant, Foundation Reserve Insurance Company, Inc., as the insurer of Nelda McCallister and her vehicle which had been driven by William Sublett. The defendant moved to dismiss on the grounds that the Nevada state court was without jurisdiction over the defendants Nelda McCallister and William Sublett when it entered the default judgment.
The federal court in CIV 77-211-M found that the affidavit of compliance filed with the Nevada court did not comply with the requirements of the substituted service of process statute, Nev.Rev.Stat. § 14.070. The court also determined that the plaintiff’s additional affidavits showing compliance with the substituted service of process statute could not cure the jurisdictional defects before the court. The court granted summary judgment in favor of the defendant finding that the Nevada court did not have jurisdiction over the alleged tortfeasors. The plaintiff appealed the decision to this court, but on May 31, 1978 he voluntarily dismissed the appeal thus leaving the trial court judgment intact.
On May 11,1978 the plaintiff returned to the Nevada state court which had entered the default judgment. His Nevada counsel filed an amended affidavit of compliance along with an affidavit by plaintiff’s Idaho counsel which apparently set out additional facts showing compliance with the statute. Based on these affidavits the state court determined that the requirements of Nev. Rev.Stat. § 14.070 had been fully met and entered a judgment nunc pro tunc. The amended judgment entered was the same judgment entered in 1972.
On December 6, 1979 the plaintiff filed a complaint against the defendant, Foundation Reserve Insurance Company, Inc., in a New Mexico state court sitting in San Miguel County. He sought full faith and credit of the unsatisfied “amended” Nevada judgment (Cause No. 79-500). The defendant petitioned to remove the action to federal court under the federal question removal statute, 28 U.S.C. § 1441 (b). The United States District Court of New Mexico granted the petition of removal over plaintiff’s objection finding that it had jurisdiction to protect its judgment entered against the plaintiff in 1977. The district court also consolidated the removed action with the first case (CIV 77-211-M) and treated the plaintiff’s claim as a Rule 60(b) motion to vacate the initial federal judgment. The court denied the Rule 60(b) motion and dismissed the case.
There are two basic questions on appeal. The first is whether the district court correctly denied the plaintiff’s motion to remand the case to state court; and the second is whether the district court properly denied the plaintiff’s Rule 60(b) motion to vacate the federal judgment thereby leaving the dismissal of the entire action intact.
The plaintiff argues that the federal court has no federal question jurisdiction and therefore the motion to remand should have been granted. Removal under section 1441(b) is appropriate if according to the complaint the case is directly concerned with the construction of federal law or a determination of federal rights. State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687, 691 (10th Cir.). The court may look beyond the naked allegations of the complaint to determine whether the claim is controlled by federal law. Prairie *336 Band of Pottawatomie Tribe of Indians v. Puckkee, 321 F.2d 767 , 770 (10th Cir.). Here the plaintiff’s complaint is more than an action seeking damages for alleged tortious conduct.
The state court action directly attacks the validity of a federal court judgment of dismissal. Presenting additional facts through affidavits to the Nevada state court could not change the original federal court judgment. The purported judgment nunc pro tunc entered by the Nevada court in 1978 could not change the state court judgment ruled invalid by the federal court in the initial full faith and credit action. By bringing a new and independent action on the “amended” judgment in a New Mexico state court the plaintiff was merely attacking the federal court’s previous judgment. The federal court can act to protect its judgment. An analysis of the basic cause of action serves no useful purpose because the issue is the protection of the federal court’s judgment.
In Villarreal v. Brown Express, Inc., 529 F.2d 1219 (5th Cir.), the court held that removal of a state tort action to recover additional damages was proper when the action attacked the order of dismissal entered by a federal court in a prior lawsuit between the parties. When an independent action is brought in state court to seek relief from a federal judgment it may be removed to federal court on the basis of federal question jurisdiction. 7 Moore’s Federal Practice 160.38[1], at 647 (2d ed.). The district court thus properly removed the case and denied the plaintiff’s motion for remand.
The court correctly treated the removed independent action as a Rule 60(b) motion to attack the validity of the initial federal judgment. 7 Moore’s Federal Practice H 60.38[3], at 650 (2d ed.). The decision to grant relief under Rule 60(b) is discretionary and will not be disturbed except for a manifest abuse of discretion. Security Mutual Cas. Co. v. Century Cas. Co., 621 F.2d 1062 (10th Cir.); Brown v. McCormick, 608 F.2d 410 (10th Cir.). The power to set aside a judgment is an extraordinary power which must be used upon consideration of all surrounding circumstances. 7 Moore’s Federal Practice 160.27[1], at 351, and 1160.27[2], at 352-3 (2d ed.).
Relief under Rule 60(b) was properly denied. The nature of the relief sought, the sequence of events, the length of time between the first federal judgment and the Rule 60(b) motion, and the age of the original Nevada judgment were circumstances which support the district court’s denial.
The plaintiff’s proof of compliance with the Nevada statute failed in federal court the first time. He cannot by a new state action nor by a Rule 60(b) motion seek to patch up the original judgment nor to present new proof for a second try. The federal court entered a final judgment, the plaintiff appealed, but as mentioned above, he voluntarily dismissed his appeal. The federal district court’s judgment determined that the Nevada court lacked jurisdiction. This was based on facts and circumstances presented by the plaintiff. Without more the plaintiff returned to Nevada state court and sought to develop additional facts not theretofore presented but at all times available. The nunc pro tunc order of the Nevada court was apparently based on new data and in no way can be considered as a nunc pro tunc order. This is apparent from the recitation of facts before us. By attempting to enforce his “amended judgment,” which was no such thing, through a separate action he sought a second chance at proof and to attack the federal judgment. The original federal court judgment was directly involved, it was the same cause of action, but the position of the majority is not to permit a removal to protect it but to consider the new state suit as a different matter to be examined as if nothing had happened before. But something did happen — a final judgment on the same cause of action by the United States District Court — which must be protected.
I would thus affirm the judgment of the District Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469465. Public record. Not legal advice.