Prete v. Lepore

125 F.R.D. 572, 1989 U.S. Dist. LEXIS 15613, 1989 WL 57474
CourtDistrict Court, D. Connecticut
DecidedApril 18, 1989
DocketCiv. No. H-89-008 (AHN)
StatusPublished
Cited by5 cases

This text of 125 F.R.D. 572 (Prete v. Lepore) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prete v. Lepore, 125 F.R.D. 572, 1989 U.S. Dist. LEXIS 15613, 1989 WL 57474 (D. Conn. 1989).

Opinion

MEMORANDUM AND ORDER

THOMAS P. SMITH, United States Magistrate.

In this action, plaintiffs seek to uphold the validity of two default judgments entered against the defendant John R. Le-pore, Jr. (“Lepore”).1 On May 26, 1988 the Superior Court of Arizona, Maricopa County, rendered judgment against Mr. Lepore on his failure to appear in an action brought by plaintiffs in connection with the purchase of various securities (hereinafter “the Arizona judgment”). On September 20, 1988, a default judgment was also entered in the United States District Court for the District of Arizona, upon failure to appear in a similar suit (hereinafter “the federal judgment”).2 Defendant Lepore has now moved to dismiss the present action or for summary judgment on the grounds that the Arizona and federal judgments are void for lack of personal jurisdiction.3 His motion also requests that prejudgment attachments obtained by the plaintiffs on two properties which are the subject of other claims in the present action be vacated. For all of the reasons that follow, the defendant’s motion should be denied in all respects.

I.

Both the Arizona litigation and the present action grew out of a series of investments undertaken by the plaintiffs from late 1985 to early 1987. In December 1985, the plaintiffs allegedly purchased an interest in the Hambrose Leasing 1985-6 Limited Partnership (“Hambrose”) based upon the recommendation of their nephew, defendant Lepore. In November 1986, the [574]*574plaintiffs allegedly requested the defendant’s assistance in obtaining a similar tax shelter investment, and based on Mr. Le-pore’s suggestion, subsequently purchased units of the Middletown Nursery Limited Partnership (“Middletown”). With respect to both transactions, the defendant had initially contacted Mark Stepniewski,4 a securities sales representative for Worldco Inc.,5 concerning potential investment vehicles suitable for the plaintiffs; information concerning both the Hambrose and Middletown offerings originated with Mr. Stepniewski, who effectively concluded the sale of the securities to the Pretes.

The plaintiffs apparently became dissatisfied with their investments, since they initiated an action in Arizona Superior Court, in April 1987, claiming, among other things, that the sale of the Middletown limited partnership units violated the federal securities laws. See Defendant’s Memorandum, Exhibit B (Arizona complaint). A similar action was filed in federal court in April 1988 with respect to the Hambrose investment. See id., Exhibit C (federal complaint). Despite having been served with a summons and complaint in Hartford, Connecticut, for both the Arizona and federal suits, defendant Lepore failed to appear for either. As a result, a default judgment was subsequently entered against Mr. Lepore in both actions. These judgments allegedly remain in force and unsatisfied. Defendant Lepore has moved for dismissal or, in the alternative, for summary judgment in the present action based on the assertion that both the Arizona and federal default judgments are void for lack of personal jurisdiction.

II.

A.

The procedure for challenging the validity of a foreign judgment in a subsequent enforcement action is hardly a well-worn path. Although Rule 60(b)6 has been interpreted as “leavpng] undisturbed the right to make a collateral attack upon a ... judgment in any proceeding wherein the validity of the judgment is appropriately challenged.” See 7 J. Moore, Federal Practice, 1160.41 2 (2d ed. 1988), the Federal Rules do not otherwise specify the particular method of mounting such an attack by motion. Further, although the means of obtaining relief from judgments delineated by Rule 60 are not expressly confined to federal judgments, there is no indication that they have been utilized to challenge state court judgments which form the basis of later federal actions. While there is also some authority suggesting that “the validity of a judgment cannot be questioned by a motion to dismiss,” see 2A J. Moore, supra, U 9.06, the better approach appears to be to permit challenges to foreign judgments pursuant to Rule 12(b)(2) when the basis for the challenge is that the rendering court lacked personal jurisdiction over the defendant. This should be the procedure particularly when the federal action merely seeks enforcement of a foreign default judgment after a failure to appear, and the in personam jurisdiction of the foreign court has not previously been litigated.

B.

Ordinarily, when a Rule 12(b)(6) movant refers to facts or material outside of the pleadings the court is required to convert the motion into one for summary judgment. See id., 1Í 12.07[2.-1]. The rule is necessarily different, however, under Rule 12(b)(2), since jurisdictional facts need not be included when pleading the existence of a prior judgment. See F.R.Civ.P. 9(e).

[575]*575Once a Rule 12(b)(2) motion to dismiss has been made, a district court has broad discretion in selecting the appropriate manner of proceeding. The motion may be decided on the basis of affidavits and the pleadings alone; it may order discovery; or it may conduct a preliminary hearing on the merits. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986); Visual Sciences, Inc. v. Integrated Communications, Inc., 660 F.2d 56, 58 (2d Cir.1981). In the absence of a hearing, a plaintiff need only make a prima facie showing that the rendering court had personal jurisdiction over the defendant in order to defeat the motion. United States v. Montreal Trust Co., 358 F.2d 239, 242 (2d Cir.), cert. denied, 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440 (1966). However, if challenged, the party asserting jurisdiction would still be required to eventually prove jurisdiction at trial by a preponderance of the evidence. Id. at 242 n. 4; see also Marine Midland Bank N.A. v. Miller, 664 F.2d 899 (2d Cir.1981); 2A J. Moore, Federal Practice, ¶ 12.07[2.-2] n. 4 (2d ed. 1988).

C.

With respect to the present case, the defendant argues that his contacts with the state and district of Arizona in connection with the plaintiffs investments were insufficient to permit in personam judgments to be rendered against him in those forums. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

The parties are in agreement that defendant Lepore, a Connecticut resident, did not have any “face-to-face” meetings with the plaintiffs in Arizona concerning their investments in Middletown or Hambrose. Defendant’s Statement of Facts, 119; Plaintiff’s Response, 119. In his memorandum of law in support of his motion, defendant also admits to being directly and rather extensively involved in the Middletown transaction: at plaintiff’s request he telephoned Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brent Boggs v. Greylock Marketing, LLC
West Virginia Supreme Court, 2023
Kaplan v. Hezbollah
E.D. New York, 2022
SCANTEK MEDICAL, INC. v. Sabella
693 F. Supp. 2d 235 (S.D. New York, 2008)
In Re Perrier Bottled Water Litigation
754 F. Supp. 264 (D. Connecticut, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
125 F.R.D. 572, 1989 U.S. Dist. LEXIS 15613, 1989 WL 57474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prete-v-lepore-ctd-1989.