,' . .
5 IN THE SUPERIOR COURT OF GUAM 6
7 SUVAS D. PATEL, 8 Plaintiff/Counterclaim-Defendant, DOMESTIC CASE NO. DM 0845-11 9 v. 10 DECISION AND ORDER
11 BIJAL M. PATEL,
12 Defendant/Counterclaim-Plaintiff.
15 INTRODUCTION 16 This matter came before the Honorable Arthur R. Barcinas on the 2nd day of July, 2014, 17 for hearing on the Plaintiffs Motions to Vacate Default and Default Judgment. 18 Plaintiff/Counterclaim Defendant Suvas D. Patel represented himself pro se, and Attorney 19
20 Michael J. Berman represented the Defendant. For the reasons set forth below, the Plaintiffs
21 Motions to Vacate Default and Default Judgment are DENIED. 22 FACTUAL AND PROCEDURAL HISTORY 23 On December 13, 2011, the Plaintiff/Counterclaim-Defendant Suvas D. Patel sued the 24 Defendant/Counterclaim-Plaintiff Bijal M. Patel for an annulment of marriage. The Plaintiff 25
26 alleged that the Defendant obtained the marriage by fraud, and therefore sought an annulment
27 under 19 GCA § 8101(d). The Defendant filed her answer on March 2, 2012, denying the fraud 28 allegation. Decision and Order DM0845-ll; Patel v. Patel
A pre-trial conference was held on December 12, 2012. The Defendant, who lives in
2 Tampa, Florida and had been given permission by the Court to appear at trial by
3 videoconference, was represented by her counsel. Neither the Plaintiff nor his counsel at the 4 time, Attorney Phillip Torres, attended. At the conference, the Court instructed that trial briefs 5 were due on January 9, 2013. The Defendant filed her trial brief on the due date, but the 6 Plaintiff did not. On January 16, the Plaintiff filed a notice of substitution of counsel, informing 7
8 the Court that he would be representing himself pro se. On January 22, the Plaintiff moved for
9 enlargement of time to file his trial brief. This motion stated that the failure to file the brief and 10 to attend the pre-trial conference a month earlier had been caused by negligence on the part of 11 the Plaintiff's former counsel, who had since been discharged. The Plaintiff filed a trial brief on 12
13 January 29, 2013.
14 A bench trial had been scheduled for February 20, 2013. However, the Plaintiff's trial 15 brief contained an argument for annulment on the basis that the parties' marriage had never 16 been consummated. The Court vacated the trial and ordered discovery and motions limited to 17 the consummation issue. At this hearing, the Court also specifically told the Plaintiff that the 18
19 fact that he now represented himself pro se did not relieve him from the obligation to follow the
20 Court's procedural rules. 21 On June 12, 2013 the Defendant moved to amend her answer to include a counterclaim 22 for dissolution of marriage. At the motion hearing on August 23, the Plaintiff did not object to 23 the motion, and the Court granted it. The Plaintiff requested leave to file a new trial brief, which 24
25 the Defendant's counsel did not object to. The Plaintiff also requested leave to file a motion for
26 summary judgment. The Court denied this on the basis that the motion period had already 27 passed, and reminding the Plaintiff to review the rules. The Court then instructed the Plaintiff 28
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that under the Rules of Civil Procedure he had time to file an answer to the Defendant's
2 counterclaim. The Defendant's Amended Answer to Plaintiffs Verified Complaint for
3 Annulment and Counterclaim for Divorce was filed on August 30. The filing of a certificate of 4 service followed on September 5. The Plaintiff/Counterclaim-Defendant did not file a timely 5 answer to the counterclaim or otherwise appear, and on October 8 the Defendant/Counterclaim- 6 Plaintiff filed a request for entry of default. Default was entered on October 11. 7
8 Contravening the Court's previous instruction that the time to file a motion for summary
9 judgment had passed, on December 10, 2013, the Plaintiff filed a motion for leave to exceed the 10 page limits for a memorandum in support of a motion for summary judgment. In a Decision and 11 Order of December 30, the Court again explained that such a summary judgment motion would 12
13 be untimely.
14 Also on December 10, 2013, the Plaintiff emailed the Defendant's counsel, seeking to 15 schedule a hearing date for the Plaintiffs motion for summary judgment. The Defendant's 16 counsel's reply email informed the Plaintiff that a motion for summary judgment was time 17 barred, and that at the next hearing the Defendant would move for a default judgment for the 18
19 Defendant's counterclaim for divorce.
20 At the pre-trial conference on January 3, 2014, the Defendant's counsel moved for a 21 default judgment on the counterclaim for divorce. Noting that it had previously admonished the 22 Plaintiff to follow the Rules of Civil Procedure, the Court granted the default judgment. 23 Accordingly, a final decree of divorce was issued on January 14, which was confirmed with a 24
25 certificate of divorce on January 22.
26 On January 10, the Plaintiff moved to vacate the entry of default and the default 27 judgment. This first filing was procedurally improper, but its defects were corrected in 28
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subsequent filing on January 24. The bases for the motion are Guam Rule of Civil Procedure
2 55(c) and 60(b), specifically 60(b)(1), (4), and (6). The Defendant opposed the motion on
3 February 21. As noted in its Order of June 17, 2014, the Court corrected its previous error and 4 scheduled the motion hearing for July 2. After the hearing, the Court took the motion under 5 advisement. 6 DISCUSSION 7
8 The Plaintiff calls his motion a "Motion to Vacate Default and Default Judgment." Pl.'s
9 Mot., Jan. 24. 2014. It states: "This motion is brought pursuant to Rule 55(c) on grounds 10 permissible under Rule 60(b), (b)(l), (b)(4), and (b)(6). Id. Guam Rule of Civil Procedure 55(c), 11 Setting Aside Default, reads as follows: "For good cause shown, the court may set aside an 12
13 entry of default and, if a judgment by default has been entered, may likewise set it aside in
14 accordance with Rule 60(b)." GRCP 55(c). Rule 60(b) more provides for relief from judgments, 15 including default judgments. Rule 60(b) sets out the following list of reasons that a court may 16 relieve a party from a final judgment: 17 (1) mistake, inadvertence, surprise, or excusable neglect; 18 (2) newly discovered evidence which by due diligence could not have been 19 discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), 20 misrepresentation, or other misconduct of an adverse party; 21 (4) the judgment is void; 22 (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer 23 equitable that the judgment should have prospective application; or 24 (6) any other reason justifying relief from the operation of the judgment.
25 GRCP 60(b). The Court construes the Plaintiff's motion as making both a Rule 55(c) motion to 26 set aside the entry of default, which, if granted, would also void any default judgment resulting 27 from that entry of default, and also a Rule 60(b) motion for relief from the default judgment. 28
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The Supreme Court of Guam has extensively discusses the relationship between entries
2 of default and default judgments, and the obligations of courts with regard to each, in Adams v.
3 Duenas: 4 Guam Rule of Civil Procedure 55(c) provides that "for good cause shown, the 5 court may set aside the entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). " The concepts of 6 default and default judgment are distinct and must be treated separately. U.S. v. 7 Topeka Livestock Auction, Inc., 392 F.Supp. 944 (N.D. Ind. 1975). However, due 8 to the parallels between entries of default and default judgments, in reviewing entries of default courts will look to the same grounds that are relevant in 9 considering whether to set aside a default judgment. Id. On the other hand, the 10 standard is less rigorous when examining a motion to set aside entry of default than for default judgments, so these grounds are more liberally construed. Hawaii 11 Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). The grounds 12 on which a court will deny a Rule 60(b) motion are if "(1) the defendant's culpable conduct led to the default, (2) the defendant has no meritorious defense, 13 or (3) the plaintiff would be prejudiced if the judgment is set aside." Midsea 14 Industrial, Inc. v. HK Engineering, Ltd., 1998 Guam 14 '1!5. 15 Adams v. Duenas, 1998 Guam 15 '1!5. 16 Hawaii Carpenters' Trust Funds v. Stone clarifies that while entries of default and 17
18 default judgments are distinct, after a default judgment has been entered, Rule 55(c) motions to
19 set aside default refer to Rule 60(b), on relief from judgments. Hawaii Carpenters' Trust Funds 20 v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). The result is that "when considering a motion to set 21 aside a default entry, the parallels between granting relief from a default entry and a default 22 judgment encourage utilizing the list of grounds provided in Rule 60(b), including whether a 23
24 defendant has a meritorious defense." Stone, 794 F.2d at 513. The three Rule 60(b) factors cited
25 in Midsea Indus., Inc. v. HK Eng'g, Ltd., "(1) the defendant's culpable conduct led to the 26 default, (2) the defendant has no meritorious defense, or (3) the plaintiff would be prejudiced if 27 the judgment is set aside," refer specifically to Rule 60(b)(1). See Price v. Seydel, 961 F.2d 28
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14 70, 1473 (9th Cir. 1992). All ofthese factors are relevant to the Rule 55(c) question of setting
2 aside the entry of default. Adams v. Duenas, 1998 Guam 15 ~ 5. Therefore, adjudicating a
3 motion to set aside a Rule 55(c) motion to set aside an entry of default requires a Rule 60(b)(l) 4 analysis. However, when adjudicating a Rule 55(c) motion the analysis is more lenient to the 5 moving party than under a Rule 60(b)( 1) motion. Id. 6
I. Rule SS(c), Applying a Rule 60(b)(l) Analysis 7
8 A court will deny a motion to vacate an entry of default under Rule 55(c), if (1) the
9 defendant's culpable conduct led to the default, (2) the defendant has no meritorious defense, or 10 (3) the plaintiff would be prejudiced by the setting aside the default. See Adams v. Duenas, 11 1998 Guam 15 ~ 5. Any of these conditions is sufficient to uphold the default. See Midsea 12
13 Indus., Inc. v. HK Eng'g Ltd., 1998 Guam 14 ~ 5 (citing Cassidy v. Tenorio, 856 F.2d 1412,
14 1415-16 (9th Cir. 1988)). These grounds, derived from the analysis of Rule 60(b)(l), are more 15 liberally interpreted in the context of a motion for relief from an entry of default under Rule 16 55(c). Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). Moreover, 17 the Plaintiff in this action is pro se, and "deference should be given toward a pro se party's 18
19 litigation efforts." McGhee v. McGhee, 2008 Guam 17 ~ 11.
20 But despite the fact that the Rule 60(b )(1) analysis is more liberal to the movant when 21 conducted pursuant to Rule 55(c), these motions are only liberally granted, "in the exceptional 22 circumstances where the events contributing to the default judgment have not been within the 23 meaningful control of the defaulting party, or its attorney." See Duenas v. Brady, 2008 Guam 24
25 27 ~ 22 (quoting North Cent. Ill. Laborers' Dist. Counsel v. S.J. Groves, 842 F.2d 164, 167
26 (11th Cir. 1988)) (emphasis original). This determination is within the discretion of the trial 27 court. Midsea Indus., Inc. v. HK Eng'g Ltd., 1998 Guam 14 ~ 9 (ruling that the trial court did 28
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not abuse its discretion in finding that the delay in setting aside the default judgment was not
2 due to culpable conduct).
3 The basis for a Rule 60(b)(1) motion is "mistake, inadvertence, surprise, or excusable 4 neglect." GRCP 60(b)(l). However, "[n]either carelessness nor ignorance, ascribed to the party 5 or party's attorney, may supply grounds for relief under 60(b)(l)." Duenas v. Brady, 2008 6 Guam 27 ~ 21 (citing Engleson v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 7
8 1992)).
9 A Rule 60(b )(1) motion must be filed within one year of the judgment the motions seeks 10 relief from. GRCP 60(b). The default was entered on October 11, 2013. Entry of Default, Oct. 11 11, 2013. The default judgment was issued on January 3, 2014. R. Log, Jan. 3, 2014. The 12
13 Plaintiff first filed a motion on January 10, 2014, but this motion was procedurally improper.
14 See Order, Jan. 15, 2014. However, the Plaintiff fixed the procedural improprieties and filed a 15 new motion on January 24, 2014. See CVR 7.1 Forms 1 & 2, Jan. 24, 2014; Pl.'s Mot., Jan. 24, 16 2014. The motion is timely. 17 The entry of default against the Plaintiff regards the counterclaim for divorce filed in the 18
19 Defendant's Amended Answer. See Entry ofDefault, Oct. 11, 2013; seeR. Log, Jan. 3, 2014. In
20 his motion memorandum, the Plaintiff argues that the entry of default was based on his 21 inadvertence and surprise. Pl.'s Mot. 1-4, Jan. 24, 2014. He argues that he believed that he had 22 already given an oral answer to the counterclaim at the hearing on August 23, meaning that he 23 thought his non-objection to the Defendant's motion to amend her answer also constituted a 24
25 non-objection to the counterclaim for divorce itself. Id. at 2. As to why he would not object to
26 the counterclaim for divorce when he was prosecuting a claim for annulment, the Plaintiff 27 responds that he believed the counterclaim would only become operative if his claim for 28
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annulment was defeated, and if he could not receive an annulment then a divorce would be the
2 next best thing. ld. at 1-2. Even after he was served the entry of default, he still did not believe it
3 would come into effect until after the annulment claim was adjudicated, and thought there was 4 nothing he could do about the entry of default after the fact. ld. at 2-3. 5 The Guam Supreme Court has stated that, "deference should be given toward a pro se 6 party's litigation efforts." McGhee v. McGhee, 2008 Guam 17 ~ 11. But the Court would be 7
8 more likely to give deference to the pro se Plaintiff and interpret such errors as excusable
9 neglect, were those errors not further instances in which the Plaintiff failed to follow the Rules 10 of Civil Procedure, despite the Court's repeated instructions that he do so. Neither the Plaintiff 11 nor the Plaintiffs counsel attended the pre-trial conference on December 12, 2012. Nor was the 12
13 Plaintiffs trial brief filed by January 9, 2013 as the Court ordered. In his Motion for
14 Enlargement of Time to File Trial Brief, the Plaintiff attributes this to negligence on the part of 15 his former counsel, who he then discharged. Pl.'s Mot. 2, Jan. 22, 2013. 16 After the Plaintiff began representing himself pro se, his noncompliance with the Rules 17 and with the Court's instruction did not cease. At the hearing on February 20, 2013, the Court 18
19 directly told the Plaintiff that his pro se status did not relieve him of the obligation to follow the
20 Rules of Civil Procedure. R. Log. 1, Feb. 20, 2013. At a subsequent hearing on August 23, the 21 Plaintiff asked if he could move for summary judgment after filing a new trial brief. R. Log, 22 Aug. 23, 2013. The Court responded in the negative, explaining that the motions period had 23 ended, and told the Plaintiff to review the Rules. Id. Despite that, on December 10, 2013 the 24
25 Plaintiff filed a motion for leave to exceed the page limits for a memorandum in support of a
26 motion for summary judgment. Pl.'s Mot. Dec. 10, 2013. This obliged the Court to issue a 27 Decision and Order on December 30, again explaining that such a summary judgment motion 28
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would be untimely. Most notably, at the August 23 hearing the Court directly told the Plaintiff
2 that the Local Rules afforded him time to file an answer to the Defendant's counterclaim. R.
3 Log, Aug. 23, 2013. 4 This pattern of noncompliance, despite the Court's repeated instructions to the Plaintiff, 5 persuades the Court that the Plaintiffs failure to answer the Defendant's counterclaim was an 6 error of, "carelessness or ignorance," that does not provide grounds for relief under Rule 7
8 60(b)(1). Duenas v. Brady, 2008 Guam 27 ,-r 22. After being repeatedly put on notice, it was
9 within the Plaintiffs meaningful control to file an answer to the counterclaim, and not doing so 10 was culpable. Despite the more deferential approach to a Rule 60(b)(l) analysis that Rule 55(c) 11 requires, and despite the fact that the Plaintiff is pro se, because the Court repeatedly warned the 12
13 Plaintiff to follow the Rules of Civil Procedure, the Court finds that the entry of default resulted
14 from the Plaintiffs careless and culpable conduct. 15 The culpability of the Plaintiffs conduct is enough to deny the Plaintiffs Rule 55(c) 16 motion. See Midsea Indus., Inc. v. HK Eng'g Ltd., 1998 Guam 14 ,-r 5 (listing the bases for a 17 court to deny a Rule 60(b)(I) motion and stating that a failure to meet any one of them is 18
19 sufficient to deny the motion and uphold the judgment). However, the Court will briefly discuss
20 the other two bases, whether the moving party has a meritorious defense, and whether the non- 21 moving party would be prejudiced by setting aside the default. 22 The Plaintiff argues that he has meritorious claims of fraud that require a trial of his 23 annulment action. Pl.'s Mot. 7-8, Jan. 24. 2014. The Defendant vociferously contests the 24
25 relevance and materiality of any of her statements to the Plaintiff before the parties' marriage,
26 arguing that they are insufficient to amount to a fraud that may give grounds to grant an 27 annulment, and also arguing that no court in the United States has ever granted a fraud-based 28
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annulment on facts similar to those alleged by the Plaintiff. See Def.'s Opp'n 4-5, Feb. 21,
2 2014; R. Log. Jul. 2, 2014.
3 Whatever the merits of the Plaintiffs annulment cause of action, which the Court will 4 not address here, they are not relevant to the question of whether the Plaintiff has a valid 5 defense to the Defendant's divorce counterclaim. The counterclaim forms the basis for the 6 default, default judgment, and divorce decree that is currently in place. The merits of the 7
8 original annulment action are mooted by the divorced state of the parties, and the Plaintiff must
9 be able to mount a meritorious defense to the entry of default or default judgment granting the 10 counterclaim. 11 "The underlying concern [of the meritorious defense requirement] is to determine 12
13 whether there is some possibility that the outcome of the suit after a full trial will be contrary to
14 the result achieved by the default." Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 15 (9th Cir. 1986). The Defendant/Counterclaim-Plaintiff pleaded for divorce on the basis of 16 irreconcilable differences. De f.'s Am. Answer 3, Aug. 30, 2013. As of the date of the filing of 17 the counterclaim, the parties had been separated for approximately twenty months, and the 18
19 separation occurred nine months after they were married. Id. The Plaintiff has not controverted
20 the fact or length of the parties' separation, argued that reconciliation is possible, or otherwise 21 stated that irreconcilable differences have not arisen between the parties. Indeed, from the outset 22 of the suit the Plaintiff has sought to not be married, the only difference being that he sought an 23 annulment rather than a divorce. The Defendant himself sees divorce as the second-best 24
25 possibility. Pl.'s Mot. 1, Jan. 24, 2014.
26 The parties have been separated smce October 23, 2011, and the court's decree of 27 divorce was issued on January 14, 2014. Def.'s Am. Answer 3, Aug. 30, 2013; Final Decree of 28
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Divorce, Jan. 14, 2014. Granting the Plaintiffs motion and trying the annulment case would
2 reinstate the parties' marriage, iftemporarily, and may interfere with any attempts to form new
3 personal relationships by the Defendant, and thus would prejudice the Defendant. 4 Even under the more lenient standard that applies to a Rule 55(c) motion, the Plaintiff 5 has not managed to show good cause to set aside the entry of default. The default was issued on 6 the basis of the Plaintiffs culpable behavior, the Defendant has not pleaded a meritorious 7
8 defense to the Defendant's counterclaim for divorce, and granting the motion would prejudice
9 the Defendant. The Plaintiffs Rule 55(c) motion to set aside the entry of default is DENIED. 10 II. Rule 60(b) 11 The Plaintiff moves for relief from the default judgment on the bases of Rule 60(b)(1 ), 12
13 (4), and (6). In relevant parts, Guam Rule of Civil Procedure 60(b) states the following:
14 On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the 15 following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... (4) 16 the judgment' is void ... (6) any other reason justifying relief from the operation of 17 the judgment.
18 GRCP 60(b); see also Cristobal v. Siegel, 2014 Guam 16 ,-r 23. Guam's rule was modeled after 19 Federal Rule of Civil Procedure 60(b). Brown v. Eastman Kodak Co., 2000 Guam 30 ,-r 14. The 20 Court shall adjudicate the three subparts of the rule in turn. 21
22 A. Rule 60(b)(1)
23 "When considering a motion to set aside a default entry, the parallels between granting
24 relief from a default entry and a default judgment encourage utilizing the list of grounds 25 provided in Rule 60(b), including whether a defendant has a meritorious defense." Carpenters' 26 Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). The three Rule 60(b)(l) factors are, 27
28 "(1) the defendant's culpable conduct led to the default, (2) the defendant has no meritorious
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defense, or (3) the plaintiff would be prejudiced if the judgment is set aside." Midsea Indus.,
2 Inc. v. HK Eng'g, Ltd., 1998 Guam 14 ~ 5; see Price v. Seydel, 961 F.2d 1470, 1473 (9th Cir.
3 1992). Adjudicating a Rule 55(c) motion to set aside entry of default requires a Rule 60(b)(1) 4 analysis, but is more lenient than for a Rule 60(b)( 1) motion for relief from a default judgment. 5 Adams v. Duenas, 1998 Guam 15 ~ 5; Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 6 513 (9th Cir. 1986). As stated above, the Court denies the Plaintiffs Rule 55(c) motion to set 7
8 aside entry of default. A fortiori, the Plaintiffs Rule 60(b)(l) motion for relief from default
9 judgment must also fail, and thus is DENIED. 10 B. Rule 60(b )(4) 11 GRCP 55(b )(2) requires that, if a party has appeared in the action, a default judgments 12
13 against that party must be preceded by service of written notice of the application for judgment
14 at least three days prior to the hearing on such application. GRCP 55(b )(2). Both parties have 15 appeared in this action. The parties do not dispute that the Plaintiff was not formally served 16 notice of an application for a default judgment as a physical document. See Pl.'s Mot. 3, Jan. 17 22, 2014; see Def.'s Opp'n 3-4, Feb. 21, 2014. Instead, on December 10, 2013, the Defendant's 18
19 counsel emailed the Plaintiff saying that the Defendant would move for a default judgment at
20 the next hearing. See Pl.'s Mot. 3, Jan. 22, 2014; see Def.'s Opp'n 3-4, Feb. 21, 2014; Decl. of 21 Berman, Ex. A, Feb. 21, 2014. The email by the Defendant's counsel was in response to an 22 email by the Plaintiff which said that the Plaintiff intended to move for summary judgment and 23 suggested January 3, 2014, the day of the pre-trial conference, as possible time to air the motion 24
25 argument. See Decl. of Berman, Ex. A, Feb. 21, 2014. The Plaintiff knew that a hearing would
26 take place on January 3, and the Defendant's counsel informed the Plaintiff by email that the 27
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Defendant would move for a default judgment at the hearing. The default judgment was granted
2 at January 3, 2014 hearing. R. Log. Jan. 3, 2014.
3 A Rule 60(b)(4) motion must be made "within a reasonable time." GRCP 60(b). The 4 Plaintiffs motion was filed on January 24, 2014, three weeks after the default judgment was 5 granted on January 3, 2014. Pl.'s Mot., Jan. 24, 2014; R. Log, Jan. 3, 2014. The motion is 6 timely. 7
8 The Plaintiff argues that because the form of notice did not match the requirements of
9 Rule 55(b)(2), the Plaintiff was not given due process, the default judgment is void, and the 10 Court should vacate it on the basis of Rule 60(b)(4). Pl.'s Mot. 4, Jan. 22,2014. The Defendant 11 disagrees, arguing that the Plaintiffs receipt and acknowledgement of the email that said the 12
13 Defendant's counsel would apply for a default judgment constitutes actual notice, and when
14 actual notice is provided the requirement of more formalized methods of notice are trumped. 15 Def.'s Opp'n 4, Feb. 21, 2014. The Plaintiff does not contest that the December 10, 2013 email 16 was sent more than three days before the January 3, 2014 hearing. See Pl.'s Mot. 4, Jan. 24, 17 2014. 18
19 "A judgment is void if the court which rendered it lacked jurisdiction of the subject
20 matter, or of the parties, or acted in a manner inconsistent with due process of law.'' Mariano v. 21 Surla, 2010 Guam 2 '1[32 (citing In re Four Seasons Sees. Laws Litig., 502 F.2d 834, 842 (lOth 22 Cir. 1974)). If any of these requirements for a valid judgment are not met, a trial court is 23 required to grant relief. Mariano v. Surla, 2010 Guam 2 '1[12. The Plaintiff does not contest the 24
25 personal or subject-matter jurisdiction of this Court, but does argue that the lack of the form of
26 notice prescribed in Rule 55(b)(2) deprived him of due process. See Pl.'s Mot. 4, Jan. 22,2014. 27
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The Supreme Court of Guam has previously been presented with "the issue of whether
2 actual notice may cure a technical defect in service." Pineda v. Pineda, 2005 Guam 10 ~ 18 fn.
3 7. However, in Pineda there was no evidence that the defendant received actual notice and the 4 plaintiff did not argue that actual notice had been provided, so the facts of that case did not 5 require resolution of the question. Id. The Supreme Court did, however, cite to a pair of cases 6
7 illustrating the approaches of appellate courts in other jurisdictions. Id. (citing Gibble v. Car-
8 Lane Research, Inc., 78 Cal Rptr. 2d 892, 903 (Cal. Ct. App. 1998), and Williams v. Williams, 9 150 S.W.3d 436, 444 (Tex. App. 2004)). 10 In Gibble, the court ruled that the plaintiffs service of process on a corporate agent with II ostensible authority to accept it validly established the court's jurisdiction, notwithstanding I2
I3 technical defects. Gibble, 78 Cal Rptr. 2d at 903. This was because, "the statutory provisions
I4 regarding service of process should be liberally construed to effectuate service and uphold the I5 jurisdiction of the court if actual notice has been received by the defendant." Id. I6 In Williams, the required citation did not contain the petitioner's name, but complied I7 with the rule in all other respects. Williams, 150 S.W.3d at 443. The court ruled that Texas' I8
I9 requirement of strict adherence to rules regarding service of the citation existed to ensure that
20 there is no question about whether the proper party was served before the default judgment was 2I rendered. Id. at 444. In this case, the defendant admitted that she had been served the papers and 22 knew who the petitioner was, despite the fact that the petition lacked the petitioner's name, so 23
24 the trial court did not err in asserting personal jurisdiction. Id. at 445.
25 In another case where a court was faced with whether email notice sufficed for Rule
26 55(c) purposes, Sunburst Media Management, Inc. v. Devine, the plaintiff sent an email to the 27 defendant stating that a final extension would be offered to enable the defendant to answer the 28
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complaint if a settlement was not reached. Sunburst Media Management, Inc. v. Devine, 2009
2 WL 1810166 *3 (N.D. Texas, 2009). However, the email did not state that the plaintiff would
3 seek a default judgment if an answer was not filed within the allotted period, or otherwise 4 mention a default judgment in any way. Id. Accordingly, the court ruled that the email did not 5 provide written notice of an application for a default judgment, as required by Federal Rule of 6 Civil Procedure 55(b)(2). ld. 7
8 Gibble and Williams both relate to service of process given by the plaintiff to the
9 defendant at the onset of the litigation. Gibble, 78 Cal Rptr. 2d at 903; Williams, 150 S.W.3d at 10 433. Key to the reasoning of both courts in ruling that the service was sufficient was the actual 11 notice or knowledge by the defendants of all the information that the formalized method of 12
13 process was intended to convey. See Gibble at 903; see Williams at 445. In the case at bar, the
14 entry of default and default judgment has arisen on the defendant's counterclaim, wherein there 15 can be no dispute that the plaintiff was aware of the action. Unlike Sunburst Media 16 Management, Inc. though, in this case the Plaintiff acknowledges that the email he received 17 provided him with actual notice of the Defendant's intention to seek a default judgment. Pl.'s 18
19 Mot. 3, Jan. 24, 2014. That actual notice was provided twenty-four days before the hearing. See
20 Decl. ofBerman Ex. A, Feb. 21, 2014. 21 In addition, in this case the purpose for Rule 55(b)(2)'s requirement of three days of 22 written notice is inapplicable. The distinction between Rule 55(b)(1) and (2) is the certainty of 23 damages. See GRCP 55(b). If the plaintiffs claim "is for a sum certain or for a sum which can 24
25 by computation be made certain," then the Clerk of Court shall enter judgment without fact-
26 finding by a judge or jury. See GRCP 55(b)(1). In contrast, under Rule 55(b)(2) a trial court 27 may conduct a hearing as it deems necessary, and the court must provide trial by jury if required 28
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by statute, even though the hearing or trial will only find the amount of damages and not the
2 fact of liability. See GRCP 55(b)(2). This is because "when a party fails to file an answer and a
3 default judgment is entered, only the factual allegations of the complaint as to liability are 4 deemed admitted and not the allegations relating to damages." Mariano v. Surla, 2010 Guam 2 ~ 5 39 (citing Pope v. United States, 323 U.S. 1, 12 (1944)); see also Brock v. Unique Racketball 6 and Health Clubs, Inc., 786 F.2d 61, 65 (2d Cir. 1986) ("In the context of a default entered for 7
8 failure to plead, Rule 55 contemplates a hearing on at least three days' notice to determine the
9 amount of damages for which judgment should be entered whenever that amount remains to be 10 ascertained."). Upon entry of default, liability is established, and only the damages 11 determination remains. Brock, 786 F.2d at 65. 12
13 However, the Defendant/Counterclaim-Plaintiff did not seek damages in her
14 counterclaim. Instead, she sought denial of the Plaintiffs complaint for annulment, divorce, the 15 recovery of property being held by her attorney pursuant to Court order, costs and fees, and 16 other relief as may be just. Def.'s Am. Answer 4, Aug. 30, 2014. In the Final Decree of 17 Divorce, the Court dissolved the parties' marriage and ordered that the Defendant's property be 18
19 returned to her by her attorney. Final Decree of Divorce 2, Jan. 13, 2014. The court did not
20 award fees and costs or otherwise grant monetary relief. Id. There was no need for fact-finding 21 to determine an amount of damages. 22 Moreover, in this case the Plaintiff seeks to set aside a default judgment of divorce and 23 proceed to trial on his action for annulment. At present, the parties are no longer married, and 24
25 the action for annulment is moot unless the Court vacates the divorce decree. Formally, an
26 annulment retroactively determines that a marriage was invalid, and a divorce dissolves a valid 27 marriage. See 19 GCA Ch. 8 (2005). But for practical purposes, they are much the same thing. 28
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With regard to the central purpose of an annulment action the Plaintiff will be no better off. But
2 scarce judicial resources will be consumed to adjudicate the trial, and the Defendant will lose
3 her status as a single person in the meantime. 4 Under the particular circumstances of the case, in a default judgment resulting from a 5 counterclaim, where the Plaintiff had actual notice that the Defendant would move for a default 6 judgment at the next hearing, no further fact-finding was required to grant relief to the 7
8 counterclaimant, and there is little if any practical difference between the Plaintiffs desired
9 remedy of annulment and the present status of the parties as divorced, the Court determines that IO the Defendant's provision of notice regarding the motion for a default judgment by email did II not deprive the Plaintiff of due process of law. Therefore, the judgment is not void, and the I2
13 Plaintiffs Rule 60(b)(4) motion is DENIED.
I4 C. Rule 60(b)(6) I5 Rule 60(b)(6) allows a court to set aside a final judgment for "any other reason I6 justifying relief from the operation of the judgment." GRCP 60(b)(6). The subsections of Rule I7 60(b) are mutually exclusive, and if the circumstances alleged fall into any of the other, more I8
I9 specific, subsections, then relief under Rule 60(b )(6) cannot be granted. Mariano v. Surla, 2010
20 Guam 2 ~ 34; Brown v. Eastman Kodak Company, 2000 Guam 30 ~ 14 (adopting the federal 2I Supreme Court's interpretation of Federal Rule of Civil Procedure 60(b)(6) in Klapprott v. 22 United States, 335 U.S. 601, 613-16 (1948)). 23 Courts provide relief under Rule 60(b )( 6) "sparingly 'as an equitable remedy to prevent 24
25 manifest injustice."' Merchant v. Nanyo Realty, Inc., 1998 Guam 26 ~ 9 (quoting United States
26 v. Alpine Land & Reservoir, Co., 984 F.2d 1047, 1049 (9th Cir. 1993)). Such relief is only 27 appropriate in extraordinary circumstances, and the Supreme Court of Guam is therefore 28
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reluctant to approve the relief of judgments pursuant to Rule 60(b)(6). Cristobal v. Siegel, 2014
2 Guam 16 ~ 31. In Parkland Development, Inc. v. Anderson, the Supreme Court held that the
3 negligence of a party's attorney does not provide the extraordinary circumstances required to 4 relieve a judgment under Rule 60(b)(6): "Defense counsel's failure to raise affirmative defenses 5 cannot act to relieve the Andersons from the judgment received at trial." Parkland Dev., Inc. v. 6 Anderson, 2000 Guam 8 ~ 16. In addition to extraordinary facts, the movant must show that it 7
8 has "a meritorious case, that substantial injustice to the movant would otherwise result, and that
9 it would be appropriate to set aside default so that the case can proceed to the merits." Brown v. 10 Eastman Kodak Company, 2000 Guam 30 ~ 25. 11 As is the case for Rule 60(b)(4) motions, Rule 60(b)(6) motions must be made "within a 12
l3 reasonable time." GRCP 60(b). The motion is timely.
14 The Plaintiff makes two arguments in support of relief from judgment under Rule 15 60(b)(6), that a decree of divorce cannot be granted on the basis of uncorroborated evidence 16 • when both parties have appeared in the action, and that the fact that the Court previously 17 ordered that the Defendant's jewelry be transferred from the Plaintiffs possession to the 18
19 possession of the Defendant's counsel, pending resolution of the case. Pl.'s Mot. 5-6, Jan. 24.
20 2014. 21 The first of these arguments is inapplicable, and the second is insufficient for the 22 requirements of Rule 60(b )(6). Caspino v. Caspino, cited by the Plaintiff, stated that a marriage 23 may not be dissolved upon an uncorroborated statement, but that in a default divorce, the court 24
25 may grant a divorce based on the verified complaint of the plaintiff or petitioner. Caspino v.
26 Caspino, 1988 WL 242619 (D. Guam A.D). But since the Plaintiff failed to answer the 27 counterclaim and default was entered, this is a default divorce proceeding. In addition, Caspino 28
Page 18 of20 Decision and Order DM0845-ll; Patel v. Patel
refers to the requirements for proving fault in a fault divorce, and since Caspino was decided in
2 1988 the Legislature has amended the dissolution of marriage statute to allow for divorce to be
3 granted for irreconcilable differences as well as for fault. 19 GCA § 8302(g); P .L. 24-134, 4 Section 3 (1998). 5 Second, regarding the Defendant's jewelry, the Court's Final Decree of Divorce ordered 6 that the Defendant's counsel- who was holding the jewelry as an officer of the Court pending 7
8 the resolution of the case -return the jewelry to the Defendant's possession. Final Decree of
9 Divorce 2, Jan. 13, 2014. The Defendant's counterclaim for divorce had requested that the 10 Court order the return of the jewelry. Def.'s Am. Answer 4, Aug. 30, 2013. The grant of 11 possession of the jewelry to the Defendant, upon a default and default judgment, does not 12
13 remotely rise to the level of an extraordinary circumstance or a manifest injustice.
14 Moreover, as stated above, the Plaintiff's failed to answer the Defendant's counterclaim 15 for divorce, despite being told that under the rules he had time to do so. This was one of a 16 number of cases where the Plaintiff did not follow the Rules of Civil Procedure despite the 17 Court's repeated admonitions. These repeated failures amount to carelessness or negligence, and 18
19 do not rise to the level of an extraordinary circumstance where a court must use its Rule
20 60(b)(6) authority to prevent a manifest injustice. Compare Parkland Dev., Inc. v. Anderson, 21 2000 Guam 8 ~ 16 (holding that a counsel's negligence is not an extraordinary circumstance). 22 Because the Plaintiff does not plead an extraordinary set of facts, it is not necessary to 23 determine whether the remaining requirements for a grant of relief from judgment under Rule 24
25 60(b)(6) are met.
26 The Plaintiff's Rule 60(b)(6) motion for relief from the default judgment is DENIED. 27 II. Sanctions and Attorney's Fees 28
Page 19 of20 Decision and Order DM0845-ll; Patel v. Patel
The Defendant requests that the Court award the Defendant attorney's fees and costs,
2 and also that the Court fine the Defendant. Def.'s Opp'n 5, Feb. 21, 2014. But the Plaintiff has
3 used the correct procedure to attempt to undo the default judgment against him. The Court does 4 not find that the Plaintiffs conduct in filing this motion was vexatious, oppressive, or in bad 5 faith, though his efforts were ultimately unsuccessful. No fine shall be levied against the 6 Plaintiff. Each side shall bear its own fees and costs. 7
8 CONCLUSION
9 For the reasons set forth above, the Plaintiffs Rule 55(c) motion to set aside default and IO Rule 60(b) motion for relief from default judgment are both DENIED. The Final Decree of II Divorce shall remain in effect. I2
I4
I5
I6
I7
I8
I9 HONORABLE ARTHUR R. BARCINAS 20 Judge, Superior Court of Guam 2I
26 SERVICE VIA COURT BOX 27 I acknowledge that a copy the ongmal hereto was placed in the 28 cou of:
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Deputy Clerk, uperior Court of Guam