“The defaulting party ‘has appeared,’ for purposes of this rule, if he has ‘indicated to the moving party a clear purpose to defend the suit’”
How later courts described this case
- “The defaulting party ‘has appeared,’ for purposes of this rule, if he has ‘indicated to the moving party a clear purpose to defend the suit’”
- “In limited situations, informal contacts between the parties have sufficed when the party in default has thereby demonstrated a clear purpose to defend the suit.”
- “Rule 60(b)(4) does not provide a license for litigants to sleep on their rights.”
- “There is no time limit on a Rule 60(b)(4) motion to set aside a judgment as void.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘Oo’
Case No. 2:22-CV-03804 CAS (AFMx) Date October 23, 2023
Title IN THE MATTER OF THE COMPLAINT OF REDONDO SPECIAL,
LLC, AS OWNERS OF THE 65-FOOT, 1957 MV REDONDO SPECIAL
Present: The Honorable CHRISTINA A. SNYDER
Catherine Jeang Laura Elias N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Todd Daley Elan Zektser
Proceedings: MOTION TO SET ASIDE DEFAULT JUDGMENT (Dkt. 23, filed
on SEPTEMBER 21, 2023)
I. INTRODUCTION AND BACKGROUND
On June 3, 2022, plaintiff-in-limitation, REDONDO SPECIAL, LLC, filed a
complaint for exoneration from or limitation of liability, pursuant to 46 U.S.C. § 30501,
et seg., and Rule F of the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions (“Supplemental Admiralty Rules”). Dkt. 1.
Plaintiff-in-limitation alleges that on or about June 8, 2021, the M/V REDONDO
SPECIAL (the “vessel’’) was operating in the Santa Monica Bay area of the Pacific
Ocean. Dkt. 1 § 10. Briana Brittain, a passenger on board the vessel that day, claims to
have sustained personal injuries as a result of the negligence of the vessel during its
operations. Id. at 11. On March 30, 2022, Brittain, through counsel, made a policy
limits claim on the marine insurer of the vessel, alleging personal injuries as a result of
the incident. Id. at § 12.
On June 8, 2022, the Court issued an order of injunction and monition, granting
plaintiff-in-limitation’s stipulation for value and costs and letter of undertaking and
approving plaintiff-in-limitation’s request for an injunction, dkt. 8, thereby staying all
proceedings and claims against plaintiff-in-limitation.
That same day, the Court also issued a notice of complaint for exoneration from or
limitation of liability, dkt. 9 (the “Notice’’), admonishing all persons wishing to contest
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:22-CV-03804 CAS (AFMx) Date October 23, 2023
Title IN THE MATTER OF THE COMPLAINT OF REDONDO SPECIAL,
LLC, AS OWNERS OF THE 65-FOOT, 1957 MV REDONDO SPECIAL
plaintiff-in-limitation’s complaint in this matter to file their claims with the Clerk of
Court on or before July 15, 2022.
Plaintiff-in-limitation mailed a copy of the Notice, via certified mail return receipt
requested, to every person known to have made a claim against the vessel or plaintiff-in-
limitation arising out of the voyage on which the claims sought to be limited arose—here,
Briana Brittain. Dkt 11-1.
Further, pursuant to this Court’s order, dkt. 8, and Rule F(4) of the Supplemental
Rules, plaintiff-in-limitation published the Notice in the Los Angeles Daily Journal on
June 14, 21, 28; and July 5, 2022; and in The Daily Breeze on June 15, 22, 29; and July 6,
2022. Dkts. 12-14; dkt. 18-2 (“Daley Decl.”), § 3.
Despite receiving the Notice of this action and returning the signed certified mail
return receipt to plaintiff-in-limitation’s counsel, dkts. 11, 11-1, passenger Briana Brittain
did not timely file any claim against plaintiff-in-limitation before the July 15, 2022
deadline. Dkt. 11; Daley Decl., {{ 3-5.
On July 20, 2022, at plaintiff-in-limitation’s request, the Clerk of Court entered the
default of all non-appearing claimants. Dkt. 17.
On July 25, 2022, plaintiff-in-limitation filed a motion for default judgment as to
all non-appearing claimants. Dkt. 18. Plaintiff-in-limitation requested that this Court
enter default judgment against all non-appearing claimants, barring and restraining them
from filing claims against plaintiff-in-limitation in any court, which might have been
properly filed in this limitation proceeding. Id. As of the time of plaintiff-in-limitation’s
moving papers filed on July 25, 2022, no person had timely filed any claim against
plaintiff-in-limitation in connection with the instant Limitation Action. Daley Decl.,
3-5. No claimants had filed or served claims or had otherwise appeared in this action.
Plaintiff-in-limitation was further informed and believed that no non-appearing claimants
were persons in the military service or otherwise exempted under the Servicemembers
Civil Relief Act (50 U.S.C. App. § 521). Id. at § 7.
On August 29, 2022, the Court granted plaintiff-in-limitation’s motion for default
judgment, dkt. 21, and default judgment was entered, dkt. 22.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:22-CV-03804 CAS (AFMx) Date October 23, 2023
Title IN THE MATTER OF THE COMPLAINT OF REDONDO SPECIAL,
LLC, AS OWNERS OF THE 65-FOOT, 1957 MV REDONDO SPECIAL
On September 21, 2023, claimant Briana Brittain (“Claimant”) filed a motion to set
aside default judgment pursuant to Federal Rule of Civil Procedure 60(b)(4). Dkt. 23.
On September 26, 2023, plaintiff-in-limitation filed an opposition to Claimant’s motion
to set aside default judgment. Dkt. 25. On October 9, 2023, Claimant filed a reply to
plaintiff-in-limitation’s opposition. Dkt. 26.
On October 23, 2023, the Court held a hearing on Claimant’s motion to set aside
default judgment. Having carefully considered the parties’ arguments and submissions,
the Court finds and concludes as follows.
I. LEGAL STANDARD
Under Rule 60(b), the court may grant reconsideration of a final judgment and any
order based on: “(1) mistake, surprise, or excusable neglect; (2) newly discovered
evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6)
extraordinary circumstances which would justify relief.” School Dist. No. lJ.
Multnomah County, Or. v. ACandS. Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Rule
60(b)(4) provides for relief from judgment on the basis that a judgment is void. An
incorrectly decided judgment is not itself sufficient to render a judgment void. United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010). “Rule 60(b)(4) applies 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.” Id. Any Rule 60(b) motion must be brought within a reasonable time and, in
certain circumstances, no later than one year after entry of judgment or the order being
challenged. See Fed. R. Civ. P. 60(c)(1).
Further, pursuant to Federal Rule of Civil Procedure 55(c), a default should be set
aside for “good cause.” Three factors are considered by the Court in determining
whether “good cause” is present: (1) whether defendant’s culpable conduct led to the
default; (2) whether defendant has a meritorious defense; and (3) whether reopening the
default judgment would prejudice plaintiff. TCI Group Life Insurance Plan v. Knoebber,
244 F.3d 691, 696 (9th Cir.2000) (noting that courts use the same factors to assess “good
cause” under Fed. R. Civ. Pro. 55(c) as for reviewing default judgments under Fed. R.
Civ. Pro. 60(b)).
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘Oo’
Case No. 2:22-CV-03804 CAS (AFMx) Date October 23, 2023
Title IN THE MATTER OF THE COMPLAINT OF REDONDO SPECIAL,
LLC, AS OWNERS OF THE 65-FOOT, 1957 MV REDONDO SPECIAL
Iii. DISCUSSION
Claimant argues that the Court should set aside the default judgment because
Claimant maintained her intent to assert a claim through several communications with
both the insurance carrier and counsel for plaintiff-in-limitation. Dkt. 23 at 6-8; see also
Muniz v. Vidal, 739 F.2d 699, 700 (1st Cir. 1984) (“The defaulting party ‘has appeared,’
for purposes of this rule, if he has ‘indicated to the moving party a clear purpose to
defend the suit’”); Wilson v. Moore & Assocs., Inc., 564 F.2d 366, 369 (9th Cir. 1977)
(“In limited situations, informal contacts between the parties have sufficed when the
party in default has thereby demonstrated a clear purpose to defend the suit.”).
Claimant asserts that she “provided photographic evidence of her injuries, medical
billing and records, and theories of liability to Redondo Special, LLC via its counsel
Todd Daley, all prior to their filing of a complaint for exoneration from or limitation of
liability on June 3, 2022.” Dkt. 23 at 8. She further alleges she exchanged emails with
plaintiff-in-limitation’s counsel to settle the claim both before and after plaintiff-in-
limitation filed the complaint for exoneration from or limitation of liability. Id. Thus,
plaintiff contends these communications and settlement negotiations “constituted an
appearance,” which required plaintiff-in-limitation to provide her with notice of the
request for entry of default and default judgment. Id. at 9. Instead, Claimant alleges
plaintiff-in-limitation “conveniently did not respond to the July 6, 2022 and August 18,
2022 emails sent [] by Claimant offering to compromise in between the filing of the
Complaint and the granting of the default judgment” and that she would have asserted her
claim formally in court if she knew about the default proceedings.! Id. Because she did
not receive notice of the proceedings, in violation of her right to due process, Claimant
argues that the Court should render the default judgment void and grant her leave to file
an answer. Id. at 11.
Claimant alleges counsel for plaintiff-in-limitation engaged in “culpable conduct” by
purposefully withholding information regarding the default proceedings. Dkt. 23 at 10.
Plaintiff-in-limitation rejects Claimant’s allegations regarding its “culpable conduct,”
asserting it “is not obligated to ‘leave the settlement door open’ indefinitely when
Claimant’s counsel has, with full knowledge and notice of the Complaint filed against
her, failed to respond diligently, and the file been closed.” Dkt. 25 at 10-11.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:22-CV-03804 CAS (AFMx) Date October 23, 2023
Title IN THE MATTER OF THE COMPLAINT OF REDONDO SPECIAL,
LLC, AS OWNERS OF THE 65-FOOT, 1957 MV REDONDO SPECIAL
In opposition, plaintiff-in-limitation asserts that Claimant received actual notice of
the complaint for exoneration from or limitation of liability and notice of complaint with
seal, and she further concedes that she received “the Redondo Special, LLC’s LOLA
Complaint and attendant Exhibits (Dkts. 1, 1-1, 1-2), the Civil Cover Sheet (Dkt. 2), the
Notice of Interested Parties (Dkt. 3), the Notice of Assignment (Dkt. 4), the Notice to
Parties re ADR Program (Dkt. 5), and the Notice to Counsel Re Agreement to Proceed
Before Magistrate (Dkt. 6).” Dkt. 25 at 3. Plaintiff-in-limitation contends that it
complied with all of the procedural and notice prerequisites for entry of default judgment,
such as publishing the Notice in the Los Angeles Daily Journal and in The Daily Breeze.
Id. at 4. While Claimant relies on Muniz v. Vidal to argue that her “unilateral settlement
emails constitute an ‘appearance’ in this action,” plaintiff-in-limitation relies on the Ninth
Circuit’s opinion in S.E.C. v. Internet Solutions for Business. Id. at 6. In S_E.C., the
Ninth Circuit held “that a defendant moving to vacate a default judgment based on
improper service of process, where the defendant had actual notice of the original
proceeding but delayed in bringing the motion until after entry of default judgment, bears
the burden of proving that service did not occur.” Id.; S.E.C. v. Internet Sols. for Bus.
Inc., 509 F.3d 1161, 1163 (9th Cir. 2007). Thus, plaintiff-in-limitation argues that the
Court should deny Claimant’s motion because Claimant had actual notice that the suit
had been filed. Dkt. 25 at 10.
Plaintiff-in-limitation additionally argues that the Court should not set aside the
default judgment pursuant to Rule 55(c). Id. at 12. It first argues that Claimant is
culpable because she intentionally failed to answer despite having received notice of the
action. Id. at 13. Further, plaintiff-in-limitation alleges it would suffer undue prejudice
in the event the Court grants Claimant’s motion. Id. Plaintiff-in-limitation complied
with the required valuation process for limitation of liability pursuant to the Limitation of
Liability Act, 46 U.S.C. § 30501 et seq., and filed an “Ad Interim Stipulation for Value of
Costs and a Letter of Undertaking, which included a full appraisal by a certified marine
surveyor of the vessel’s value at the end of the subject voyage involving Claimant
Brittain.” Id. at 13-14: see also dkt. 7. Plaintiff-in-limitation asserts that the vessel,
having been in regular use for the past year and undergone an engine replacement, is in a
materially changed condition from its condition following the appraisal pursuant to the
Federal Rules of Civil Procedure, Rule F(7) of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions. Dkt. 25 at 14. As a result, plaintiff-in-
limitation contends that it would suffer prejudice if the Court sets aside the default
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:22-CV-03804 CAS (AFMx) Date October 23, 2023
Title IN THE MATTER OF THE COMPLAINT OF REDONDO SPECIAL,
LLC, AS OWNERS OF THE 65-FOOT, 1957 MV REDONDO SPECIAL
judgment because the vessel’s changed condition affects “the size of the limitation fund
based on the prior certified marine surveyor’s appraisal.” Id. at 14-15.
In reply, Claimant argues that she was served a “defective complaint” and believed
the parties “were negotiating the complaint in good faith.” Dkt. 26 at 2 (emphasis
omitted). According to Claimant, the parties were engaging in settlement negotiations,
which constitutes an appearance in this action, and instead of receiving a response about
settlement, her attorney received a “surprise” entry of default judgment. Id. at 3. Finally,
Claimant asserts that setting aside the default judgment would not prejudice plaintiff-in-
limitation because the “facts of this case do not rest on the condition of the boat in any
manner,” and further, wear and tear on the vessel would only advantage plaintiff-in-
limitation for purposes of damages. Id.
It appears that because Claimant did not bring this motion within one year, she 1s
seeking to rely on Rule 60(b)(4), which does not have a one-year time requirement. See
Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987) (“There is no time
limit on a Rule 60(b)(4) motion to set aside a judgment as void.”). Rule 60(b)(4) also
requires that there be a void judgment. See United Student Aid Funds, Inc. v. Espinosa,
559 U.S. 260, 270 (2010); see also United States v. Berke, 170 F.3d 882, 883 (9th Cir.
1999). However, in order to establish a void judgment under Rule 60(b)(4), the moving
party must show a lack of either subject matter jurisdiction or personal jurisdiction, and
here, Claimant does not contend that the Court lacked jurisdiction. In fact, Claimant
admits that she received notice of the limitation complaint.
Alternatively, for purposes of Rule 60(b)(4), a moving party may claim that there
had been a denial of due process. See United Student Aid Funds, Inc., 559 U.S. at 271
(“Rule 60(b)(4) applies 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
? It appears the alleged defect is that the Notice of Complaint was dated June 8, 2021,
instead of June 8, 2022. Dkt. 23-1, Exh. 12. In any event, Claimant does not explain
how she was misled by the incorrect date. Moreover, the Notice, as Claimant
acknowledges, provides that “[a]ll persons having such claims and wishing to contest
Plaintiff in Limitation’s complaint must file such claims, if at all, as provided in Rule F of
the Supplemental Rules, .. . on or before July 15, 2022, .. .” which Claimant failed to
do. Dkt. 9.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES — GENERAL ‘O’
Case No. 2:22-CV-03804 CAS (AFMx) Date October 23, 2023
Title IN THE MATTER OF THE COMPLAINT OF REDONDO SPECIAL,
LLC, AS OWNERS OF THE 65-FOOT, 1957 MV REDONDO SPECIAL
notice or the opportunity to be heard.”). It appears that Claimant seeks to avail herself of
this latter theory by arguing that the settlement negotiations between her counsel and
counsel for plaintiff-in-limitation provided notice of her appearance. However, the cases
upon which Claimant relies do not arise in admiralty. In this case, as plaintiff-in-
limitation argues, there was an in rem proceeding requiring claimants to submit claims by
a date certain. Claimant makes no claim of estoppel, and the mere fact that Claimant’s
attorney participated in negotiations with counsel for plaintiff-in-limitation does not in
these circumstances demonstrate any lack of constitutional due process.
The Court finds that Claimant had actual notice of this action and has not provided
any justification for her failure to appear or for her delay in bringing this motion over one
year after the entry of default judgment. See id. at 275 (“Rule 60(b)(4) does not provide
a license for litigants to sleep on their rights.”). Moreover, to set aside the default
judgment, the Court would have to unwind a complicated set of events for the parties to
return to the status quo, which would likely result in prejudice to plaintiff-in-limitation.
Finally, Claimant has not demonstrated a substantial likelihood of success on the merits.
Accordingly, the Court finds that it would be inappropriate to set aside default judgment
pursuant to Rule 60(b)(4) and Rule 55(c).
IV. CONCLUSION
In accordance with the foregoing, the Court DENIES Claimant’s motion to set
aside default judgment.
IT IS SO ORDERED.
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Initials of Preparer TE EOMCM