16-100-cv Middleton v. Green Cycle Housing, LLC, Tal Etshtein

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
26 th day of April, two thousand seventeen.

Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges

.

_____________________________________________________

MARY MIDDLETON,

Plaintiff-Appellee

,

v. 16-100-cv

GREEN CYCLE HOUSING, LLC, TAL ETSHTIEN,

Defendants-Appellants

. 1

_____________________________________________________

Appearing for Appellant: Andrew P. Saulitis, New York, NY.

Appearing for Appellee: James W. Perkins, Greenberg Traurig, LLP (Lauren C. Harrison, on the brief ), New York, NY.

Appeal from the United States District C ourt for the Southern Di strict of New York (Cote, J. ).

1 The Clerk of the Court is directed to amend the caption as above.2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

.

Green Cycle Housing, LLC, and Tal Etshtien appeal from the December 9, 2015 order of
the United States District Court for the Southern District of New York (Cote, J .) denying their motion pursuant to Fed. R. Civ. P. 60(b)(4) to va cate a default judgment entered against them in the Southern District of Iowa in favor of Mary Middleton and registered in the Southern District of New York on January 29, 2015. We assume the pa rties’ familiarity with the underlying facts, procedural history, and specifi cation of issues for review.

We review de novo the denial of a Rule 60(b) (4) motion to vacate a default judgment as
void. Burda Media, Inc. v. Viertel , 417 F.3d 292, 298 (2d Cir. 2005). That is because if the underlying judgment is void for l ack of jurisdiction, “it is a per se abuse of discretion for a district court to deny a movant’s motion to vacate the judgment under Rule 60(b)(4).” Id

. (internal quotation marks omitted). However, to the extent the district court’s denial of a Rule 60(b)(4) motion turns on findings of fact, we review such fact ual findings for clear error. See
Luckett v. Bure , 290 F.3d 493, 496 (2d Cir. 2002). A judgment is void under Rule 60(b)(4) “only if the court that rendered it lacked jurisdiction of th e subject matter, or of the parties, or if it acted
in a manner inconsistent w ith due process of law.” Grace v. Bank Leumi Tr. Co ., 443 F.3d 180, 193 (2d Cir. 2006) (internal quotation marks and citation omitted).

“Normally, a plaintiff has the burden of pr oving personal jurisdiction in a case where a defendant appears and cont ests such jurisdiction.” “R” Best Produce, Inc. v. DiSapio , 540 F.3d 115, 126 (2d Cir. 2008). Where a defe ndant has actual notice of a lawsuit before a default judgment is entered, but does not challenge jurisdic tion until after a defaul t is entered, the burden to prove lack of jurisdic tion shifts to defendant. Id. Here, although Green Cycle and Etshtien conceded that service of the Iowa action was properly made, that concession was accompanied by their denial of actual notice of the lawsuit. App’x at 65 (“ The Court: Okay. I understand that the defendant is conceding that service was made properly but is taking th e position that he did not have actual notice until more recently.”). We need not resolve the issue of whether a defendant who concedes service, but not act ual notice, bears the burden of disproving jurisdiction. Even assuming argue ndo the burden of demonstra ting jurisdiction rests with plaintiff, we find it satisfied here.

Iowa’s long-arm statute extends the exercise of Iowa’s jurisdictional reach to the “widest due process parameters allowed by the United States Constitution

. ” Hammond v. Fla. Asset Fin. Corp ., 695 N.W.2d 1, 5 (Iowa 2005). Where, as here , a court seeks to exercise specific jurisdiction over a defendant, “t he critical focus is on the rela tionship among the defendant, the forum and the litigation.” Meyers v. Kallestead , 476 N.W.2d 65, 67 (Iowa 1991) (“This relationship is defined by the defe ndant’s contacts with the forum st ate, not with its residents.”).
“A contract between an indivi dual and an out-of-state party al one does not establish sufficient minimum contacts to permit the individual’s state to exercise specific personal juri sdiction.” Ostrem v. Prideco Secure Loan Fund, LP , 841 N.W.2d 882, 892 (Iowa 2014). While other criteria are considered, under the “modern framework,” Iowa c ourts principally “evaluate[] two
criteria.” Id. Those two criteria are whether “the de fendant has purposefully directed his activities at residents of the forum and whether the litigation results from alleged injuries that3 arise out of or relate to those activities.” Id. at 893 (internal quot ation marks and citation omitted). Once minimum contacts are establishe d, “the court must determine whether the assertion of personal jurisdiction would compor t with fair play and substantial justice.” Id. (internal quotation marks and citation omitted). Af ter a careful review of the record, we find no reason to believe the district court’s findings of fact are clearly erroneous. Further, as Iowa allows the exercise of personal jurisdiction to the full breadth allowable under the Constitution’s due process clause, the district c ourt correctly concluded that the exercise of personal jurisdiction by the Iowa court was proper.

We have considered the remainder of Gr een Cycle and Etshtien’s arguments and find them to be without merit. Accordingly, the orde r of the district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk