explaining that a showing of extraordinary circumstances involves demonstrating that “without relief from the judgment, an extreme and unexpected hardship will result” (citation and internal quotation marks omitted)
How later courts described this case
- explaining that a showing of extraordinary circumstances involves demonstrating that “without relief from the judgment, an extreme and unexpected hardship will result” (citation and internal quotation marks omitted)
- stating that the holding in Brunette "best vindicates the significant comity interests implicated in the registration context while adequately preserving collateral avenues of relief for litigants.”
- reasoning that while a choice-of-law provision in it of itself is insufficient to confer personal jurisdiction, it is nonetheless a relevant consideration in determining whether jurisdiction exists.
- holding that the acceptance of payment from a bank in the forum state does not itself constitute purposeful availment to that forum state if the beneficiary did not initiate the transaction
Written by the judges who cited it.
The opinion
COWEN, Circuit Judge,
concurring in part and dissenting in part.
This case arises out of the context of a 28 U.S.C. § 1963 registration proceeding, and more fundamentally, involves a collateral attack to a foreign default judgment. It is well-settled that the grounds for obtaining collateral relief are extremely limited. The majority, however, holds that registering courts have the power to vacate a foreign judgment rendered by their sister federal courts pursuant to Federal Rule of Civil Procedure 60(b)(6). In doing so, it becomes the first court in the nation to reach this conclusion. Because I think this holding potentially creates a circuit split where none existed before, and because I question whether' such a broad ruling is necessary under the particular circumstances of this case, I respectfully dissent.
Under the circumstances before us, one may only seek to collaterally vacate a default judgment obtained in another jurisdiction based on a challenge to the underlying validity of the judgment. Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1034 (7th Cir.2000) (“[a] party that simply refuses to appear may contend in a later case that the first tribunal lacked jurisdiction — though jurisdiction is the only issue thus preserved”) (emphasis in original); Yale v. Nat’l Indem. Co., 602 F.2d 642, 644 (4th Cir.1979) (“only void judgments are subject to collateral attack, and [ ] a void judgment is only one that is rendered by a court lacking jurisdiction over the default or over the subject matter”); see also Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 , 102 S.Ct. 2099 , 72 L.Ed.2d 492 (1982) (“[a] defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding”). From this, it naturally follows that registering courts may entertain motions to vacate registered foreign judgments pursuant to Rule 60(b)(4), on the basis that the rendering court lacked jurisdiction. See 12 James Wm. Moore et al., Moore’s Federal Practice § 60.60[3][c] (3d ed.1997); 30 Am.Jur.2d Executions and Enforcement of Judgments § 813 (“the court in which the judgment is registered may determine whether the court which entered the judgment had jurisdiction over the subject matter and parties”). This is certainly the view that has been expressly embraced by nearly all 26 of our sister circuits to have squarely confronted the question, and I thus concur with the majority’s opinion *267 insofar as it adopts this relatively uncontroversial position as Third Circuit law. 27
However, the opinion does not stop there, but goes further to hold that registering courts may also consider Rule 60(b)(6) motions to vacate foreign judgments under certain “extraordinary circumstances.” Here, I must part ways with my majority colleagues. While it is true that the precise contours of the registering court’s authority to grant Rule 60(b) relief remain unsettled, I am nevertheless unaware of any court considering the question — before today — that has affirmatively declared such authority to exist for any Rule 60(b) subsection outside of the (b)(4) context. 28 See 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, FedeRal PRactice & Procedure § 2787, at 36 (2d ed.1995) (“the courts have not squarely decided to what extent, if at all, the court in which a judgment is registered can give relief from the judgment under Rule 60(b)”); Indian Head Nat’l Bank of Nashua v. Brunelle, 689 F.2d 245, 251 (1st Cir.1982) (noting neither the parties nor the court itself could find a single case “where a court of registration was willing to entertain directly a Rule 60(b) motion other than one attacking a default judgment for lack of personal jurisdiction”). Indeed, the only court directly confronting *268 the issue expressly held to the contrary: “[A] registration court errs in entertaining a Rule 60(b) motion that alleges neither a judgment void for lack of personal jurisdiction nor grounds that would support an independent equitable action.” Brunelle, 689 F.2d at 251-52 .
This is not surprising, in light of the general rule that notwithstanding the rule’s silence on the topic, applications for Rule 60(b) relief must typically be made in the court rendering the judgment. See, e.g., 12 James Wm. Moore et al., MooRe’s Fedeeal PRACTICE § 60.60[1] (3d ed.1997) (although the rule itself does not expressly so provide, “it is clear that the drafters of the rule contemplated that the motion ... would always be brought ‘in the court and in the action in which the judgment was rendered’ ”) (emphasis added); 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, FedeRal Practice & PROcedure § 2865, at 377 (Rule 60(b) motions generally made to rendering court). While this does not per se preclude one from challenging the underlying judgment upon registration, registering courts most often deny such challenges without prejudice, referring the parties to litigate the Rule 60(b) issue in the rendering court. See 11 Federal Practice & Procedure § 2865, at 378 (“it is appropriate for the court in the district of registration to decline to pass on the motion for [Rule 60(b) ] relief and to require the moving party to proceed in the court that gave judgment”); e.g., United States v. Fluor Corp., 436 F.2d 383 , 384-85 (2d Cir.1970) (affirming registration court’s denial of Rule 60(b)(5) motion without prejudice). And rightly so. With these well-settled legal principles in mind, I think the First Circuit’s holding in Brunette best vindicates the significant comity interests implicated in the registration context while adequately preserving collateral avenues of relief for litigants.
Furthermore, even if one agrees with the substance of the majority’s legal conclusion — one that is at odds with the Brunette decision — -that registering courts have the power to vacate foreign judgments under certain unspecified “extraordinary circumstances” pursuant to Rule 60(b)(6), the question remains whether this is the appropriate case in which to make such a proclamation. This is especially so when, notwithstanding its articulation of a new rule expanding the bases for which collateral relief may be granted in registration proceedings, the majority nevertheless acknowledges that no extraordinary circumstances exist in this case, in any event, so as to warrant any such relief. It would seem then, that a satisfactory resolution could have been had here without advancing the Rule 60(b)(6) issue; we should have accordingly done simply this. For me, this case begins and ends with the District Court’s vacatur of the default judgment insofar as its decision was based in any part on its perception of the merits of the underlying California action. 29 It is axiomatic that when a party purposefully fails to appear in an action on the basis of the belief that the foreign tribunal lacks personal jurisdiction, she waives the right *269 to later contest the underlying merits of that action in a collateral proceeding. E.g., Elite Erectors, Inc., 212 F.3d at 1034 ; Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 154 (5th Cir.1974) (where “the defendant makes no appearance and the judgment goes by default, the defendant may defeat subsequent enforcement in another forum by demonstrating that the judgment issued from a court lacking personal jurisdiction ... [but] should the attack fail, the default judgment becomes no less final and determinative on the merits of the controversy than a decree entered after full trial”). Thus, when the District Court considered the merits of the California action below to opine that defendant “possesses an extremely meritorious defense” warranted vacatur, App. vol. 1 at 7, it missed the fundamental distinction between direct and collateral attacks. 18 Moore’s Federal Practioe § 130.35[1] (“registering court cannot look into the substance of the judgment to reexamine its validity”). As the Restatement cogently explains:
[I]t is inappropriate to consider the merits of an attack on a judgment when that attack is made in the course of a subsequent action in which the judgment is relied on as a basis of claim or defense. To consider the merits of the attack in such a context is to contravene the general principle that relief from a judgment should be sought in the court that rendered the judgment.
RESTATEMENT (SECOND) OF JüDGMENTS § 80 cmt. a ¶ 2 (1982).
Accordingly, although I concur with the majority’s ultimate disposition of the case, I respectfully dissent from its pronouncements on the general availability of Rule 60(b)(6) relief. Under the particular circumstances here, I would hold that a registration court errs when it vacates a foreign judgment on grounds other than those of voidness or which would otherwise support an independent equitable action. The Full Faith and Credit Clause and the weighty interests of comity demand nothing less.
. As the majority points out, only the Seventh Circuit has held that registering courts lack such authority. See Sheet Metal Workers' Nat'l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1034 (7th Cir.2000); see also Pacific Reinsurance Mgmt. Corp. v. Fabe, 929 F.2d 1215, 1217 (7th Cir.1991) ("[e]nforcement proceedings [pursuant to § 1963] do not allow collateral attacks on the judgment”).
. We have never expressly spoken on this issue, but our prior decisions have certainly assumed the existence of such power on the part of enforcement courts. See In re Universal Display & Sign Co., 541 F.2d 142, 143-44 (3d Cir.1976) (affirming registering court's denial of Rule 60(b)(4) relief where defendants litigated issue of personal jurisdiction in rendering court but lost); Somportex Ltd. v. Phila. Chewing Gum Corp., 453 F.2d 435, 444 (3d Cir.1972) (affirming denial of relief from English default judgment sought to be enforced in Pennsylvania where defendants had opportunity to contest jurisdiction in English forum).
. There is no question, of course, that regardless of whether a request for vacatur is labeled as one pursuant to Rule 60(b), courts possess the inherent power to grant relief if the grounds of the request otherwise satisfy the requirements of an independent action in equity. See Fed.R.Civ.P. 60(d) (“[Rule 60] does not limit the power of a court to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; (2) grant relief under 28 U.S.C. § 1655 to a defendant not actually personally notified of the action; or (3) set aside a judgment for fraud on the court.”); 12 James Wm. Moore et al., Moore's Federal Practice § 60.60[3][b] (3d ed.1997); 30 Am.Jur.2d Executions and Enforcement of Judgments § 813 (1994) (“[t]he registering court may[] grant relief from the judgment in an independent equitable action, particularly where some fraud or deception was practiced on the rendering court”). Indeed, numerous courts, when encountering Rule 60(b) vacatur requests based on allegations of fraud, mistake or excusable neglect, have construed them as independent equitable actions. E.g., Winfield Assocs., Inc. v. Stonecipher, 429 F.2d 1087, 1090 (10th Cir.1970) (so construing Rule 60(b) motion, thus avoiding question of "whether Rule 60(b) is a proper means of attacking a judgment entered by a United States District Court sitting in another state”); Hadden v. Rumsey Products, Inc., 196 F.2d 92, 95 (2d Cir.1952) (same). Thus, I would be satisfied if the holding here on the Rule 60(b)(6) "extraordinary circumstances” category of relief is expressly limited to only those narrow circumstances that would support an independent equitable action. But, the majority’s view of a registering court’s Rule 60(b)(6) authority is not so limited.
In any event, I note that no grounds to support an independent equitable action exist here, since defendant’s affidavit makes clear that her default was intentional. App. vol. 2 at 56, ¶¶ 15-16 (attesting she did not appear in California action on advice of counsel); see 12 Moore’s Federal Practice § § 60.81-60.82 (independent equitable relief requires, inter alia, that no adequate remedy is available at law and that the judgment sought to be vacated is "manifestly unconscionable”); see also Somportex, 453 F.2d at 443 n. 13 (suggesting collateral attacks to default judgments are allowed in "limited” instances where fraud or excusable neglect are involved).
. In my view, the reason why Harad v. Aetna Casualty and Surety Company, 839 F.2d 979 (3d Cir.1988) and Emcasco Insurance Company v. Sambrick, 834 F.2d 71, 73 (3d Cir.1987) do not apply turns not on that they were decided under Rule 60(b)(1) as opposed to Rule 60(b)(6), but simply because they both pertained to direct attacks on default judgments (where the motions for relief were made to the rendering courts themselves). Insofar as Harad and Emcasco require any consideration of the underlying merits of the action, they cannot dictate the governing standard for vacatur in the case where a party intentionally defaults and then seeks to vacate that judgment in the context of a registration proceeding.