2016 UT App 185

THE UTAH COURT OF APPEALS

GO INVEST WISELY LLC,

Appellee,

v.

BLAINE MURPHY,

Appellant.

Memorandum Decision

No. 20140822-CA

Filed September 1, 2016

Fourth District Court, Provo Department

The Honorable Samuel D. McVey

No. 090403475

Karthik Nadesan, Attorney for Appellant

Victor A. Sipos, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum 

Decision, in which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY

concurred.

CHRISTIANSEN, Judge:

¶1 Appellant Blaine Murphy appeals the district court’s 

denial of his rule 60(b) motion for postjudgment relief. See Utah 

R. Civ. P. 60(b). We affirm in part, vacate in part, and remand for 

further proceedings.

BACKGROUND

¶2 In November 2013, Go Invest Wisely LLC (GIW) filed an 

amended complaint against Murphy, a resident of North 

Carolina, alleging three causes of action: (1) fraud, (2) negligent 

misrepresentation, and (3) unlawful formation and use of Bryce 

Peters Financial Corporation (BPFC) in violation of law. The 
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20140822-CA 2 2016 UT App 185

complaint also named as defendants Odell Barnes and BPFC. See 

generally Go Invest Wisely LLC v. Barnes, 2016 UT App 184.

¶3 Copies of the summons and amended complaint were 

served on Murphy at the correctional facility in Ohio where he

was then incarcerated. Several days later, Murphy sent a letter to 

the district court and GIW’s counsel ‚to request an extension of 

time in which to submit [a] response/answer due to [his] current 

incarceration.‛ At a pretrial conference on January 6, 2014, the 

district court acknowledged that it had received Murphy’s letter; 

however, the court did not respond to, or formally rule on,

Murphy’s request for an extension. Ultimately, in March 2014, 

the district court entered a default judgment against Murphy for 

$1,183,496.14.

¶4 Three months later, Murphy’s current counsel entered an 

appearance and filed a motion for relief from the judgment 

pursuant to rule 60(b) of the Utah Rules of Civil Procedure. In 

his motion, Murphy requested oral argument and asked the 

court to set aside the judgment as void for lack of jurisdiction 

under rule 60(b)(4) and on grounds of mistake and excusable 

neglect under rule 60(b)(1). In support of his motion, Murphy 

submitted a declaration setting forth his version of the facts 

regarding jurisdiction and his reasons for failing to timely 

answer GIW’s complaint. Thereafter, GIW filed an opposition to 

Murphy’s rule 60(b) motion, contending that the district court 

could exercise jurisdiction over Murphy because, among other 

things, ‚Murphy had numerous contacts with GIW, knowing it 

was a Utah company. Murphy received hundreds of thousands 

of dollars from GIW related to his criminal acts.‛ GIW’s 

opposition was not supported by any affidavits, declarations, or 

other sworn testimony, but GIW did submit approximately 430 

pages of documents as exhibits (the Motion Exhibits), including 

what purported to be (1) Murphy’s Ohio criminal indictment;

(2) a press release from the Cuyahoga County Prosecutor’s 

Office stating that Murphy had been released from prison on 

January 17, 2014; (3) several email exchanges between GIW and 

Marty Franks acting on behalf of BPFC; (4) several email 
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20140822-CA 3 2016 UT App 185

exchanges between GIW and Sandy Warren acting on behalf of 

BPFC; (5) unsigned copies of purported sales agreements

between GIW and BPFC; (6) several email exchanges between 

GIW and Andi Davis acting on behalf of BPFC; and (7) the 

district court’s order denying codefendant Odell Barnes’s motion 

to dismiss for lack of personal jurisdiction. See Go Invest Wisely 

LLC v. Barnes, 2016 UT App 184.

¶5 Murphy then filed a reply memorandum, asserting that 

GIW had ‚failed to establish personal jurisdiction over Murphy‛ 

and ‚failed to proffer an affidavit or other admissible evidence 

in support of its argument for personal jurisdiction.‛ Murphy 

contended that the Motion Exhibits constituted ‚inadmissible 

hearsay in the absence of a supporting affidavit‛ and that the 

district court was therefore required to accept as true the facts in 

Murphy’s declaration. In addition, Murphy attached a 

supplemental declaration, a copy of a complaint filed against 

GIW for fraud, an Ohio Court of Appeals decision affirming 

GIW’s misdemeanor convictions entered on no contest pleas, 

and a Cleveland Municipal Court Capias Warrant Report 

showing an outstanding warrant for GIW.

1

¶6 In August 2014, after the conclusion of Barnes’s trial, see 

generally Barnes, 2016 UT App 184, ¶ 7 n.1, the district court 

entered an order denying Murphy’s motion for relief from the 

default judgment. In denying Murphy’s motion, the district

court stated that ‚Murphy did not support his motion with any 

admissible evidence.‛ The court then found that it had 

jurisdiction over Murphy pursuant to section 78B-3-205 of the 

Utah Code:

 

1. Black’s Law Dictionary defines ‚capias‛ as ‚*a+ny of various 

types of writs that require an officer to take a named defendant 

into custody. A capias is often issued when a respondent fails to 

appear . . . .‛ Capias, Black’s Law Dictionary (10th ed. 2014).
Go Invest Wisely v. Murphy

20140822-CA 4 2016 UT App 185

Murphy claims the court lacks general and specific 

jurisdiction over him. However, he offers no 

affidavit supporting his alleged facts. Sin[c]e he 

wants instead to rely on the complaint and 

seemingly convert his motion to a motion to 

dismiss on this point, the Court notes the 

complaint contains facts indicating Murphy was 

transacting real estate sales with [GIW] which was 

located in Utah and Murphy received payments 

sent [to] him from Utah by that Utah company. He 

did business using emails and couriers going to 

and from Utah and provided fraudulent materials

to Utah. He thus engaged in transactions, supplied 

documents and caused injury in Utah according to 

the complaint. Plaintiff also provided exhibits 

establishing these facts.

The court further concluded that ‚Murphy also made a general 

appearance in the case when he wrote and filed a letter asking 

for an extension of time.‛ Regarding Murphy’s mistake claim, 

the court ruled that Murphy had ‚assumed the Court gave him 

more time to answer‛ and that 

he received no such grant from the Court and his 

claim to making such an assumption is belied by 

the fact he waited a half year after being served, 

including four and a half months after getting out 

of jail, to do anything, far beyond any reasonable 

amount of time even if his assumption was correct 

(he conveniently left out of his ‚facts‛ the date he 

got out of jail—plaintiff had to research the date to 

respond to the motion).

Likewise, the district court found no excusable neglect for 

Murphy’s failure to respond to the complaint because Murphy 

provided ‚no facts showing that once he got out of jail, 

circumstances made him unable to act for six weeks.‛ According 
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20140822-CA 5 2016 UT App 185

to the district court, even if Murphy had ‚been served the day of 

his release, he would have had to answer in 30 days, but did 

nothing for 45 days to the default date, and then continued to do 

nothing thereafter for another 90 days.‛ Consequently, the 

district court denied Murphy’s rule 60(b) motion in its entirety. 

The court did not address Murphy’s claim that the Motion 

Exhibits submitted by GIW constituted ‚inadmissible hearsay in 

the absence of a supporting affidavit.‛

¶7 Apparently recognizing that the district court’s order 

contained factual errors, GIW filed a motion to correct the 

record. Specifically, GIW observed that the district court’s order 

erroneously stated ‚that Murphy did not request oral argument 

and that Murphy did not support his motion with admissible 

evidence.‛ Murphy opposed the motion, arguing that the district 

court lacked jurisdiction to alter the order because Murphy had 

already filed his notice of appeal and because the relief GIW 

sought was not authorized under the rules for correcting the 

record. The district court granted GIW’s motion and amended its 

order, concluding that ‚*e+ven if *Murphy+ requested a hearing 

related to his motion for relief from the default judgment, a 

hearing would not have materially affected the Court’s 

decision.‛ In addition, the district court acknowledged that 

Murphy had filed two declarations related to his motion for 

relief. The district court stated that it had ‚reviewed those 

affidavits and nothing contained therein alters the substantive 

nature of the rulings in this Court’s August 5 Order. Plentiful 

evidence shows that this Court has personal jurisdiction over 

Murphy related to this action.‛ Murphy appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 On appeal, Murphy first contends that the district court 

erred in denying his motion for relief from judgment under rule 

60(b)(4) because the court lacked personal jurisdiction over him. 

‚A denial of a motion to vacate a judgment under rule 60(b) is 

ordinarily reversed only for an abuse of discretion.‛ Department
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20140822-CA 6 2016 UT App 185

of Social Services v. Vijil, 784 P.2d 1130, 1132 (Utah 1989).

‚However, when a motion to vacate a judgment is based on a 

claim of lack of jurisdiction, the district court has no discretion: if 

jurisdiction is lacking, the judgment cannot stand without 

denying due process to the one against whom it runs.‛ Id. Thus, 

‚the propriety of the jurisdictional determination, and hence the 

decision not to vacate, becomes a question of law upon which 

we do not defer to the district court.‛ Id. ‚Although 

jurisdictional questions present issues of law, the burden of 

demonstrating a lack of jurisdiction lies on the party challenging 

jurisdiction.‛ Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 9, 100 

P.3d 1211. ‚‘When a judgment, including a default judgment, 

has been entered by a court of general jurisdiction, the law 

presumes that jurisdiction exists, and the burden is on the party 

attacking jurisdiction to prove its absence.’‛ Id. (quoting Vijil, 784 

P.2d at 1133).

¶9 Alternatively, Murphy contends that he ‚should be 

granted relief as a result of mistake and excusable neglect.‛ We 

review the district court’s denial of Murphy’s motion for relief 

from judgment under rule 60(b)(1) for an abuse of discretion. See 

Jones v. Layton/Okland, 2009 UT 39, ¶ 10, 214 P.3d 859.

ANALYSIS

I. Personal Jurisdiction

¶10 Murphy first contends that he ‚should be granted relief 

from the default judgment because Utah does not have personal 

jurisdiction over [him].‛ As part of this contention, Murphy 

argues that, ‚in the absence of sworn testimony, *the Motion 

Exhibits] supplied by GIW constitute inadmissible hearsay 

documents and lack foundation.‛2 Thus, according to Murphy, 

 

2. In a similar vein, Murphy argues that ‚*e+vidence from the 

trial of Odell Barnes is not part of the record for purposes of 

(continued<)
Go Invest Wisely v. Murphy

20140822-CA 7 2016 UT App 185

 

(<continued)

Murphy’s motion for relief from the default judgment.‛ Before 

the district court ruled on Murphy’s motion for relief, GIW 

submitted, and the district court received, approximately 900 

pages of exhibits as part of Odell Barnes’s trial (the Trial 

Exhibits). See generally Go Invest Wisely LLC v. Barnes, 2016 UT 

App 184. On appeal, GIW’s briefing relies heavily on the Trial 

Exhibits for its assertion that the district court had personal 

jurisdiction over Murphy, and GIW implicitly asserts that the 

district court relied on the Trial Exhibits in ruling on Murphy’s 

motion for relief. However, Murphy asserted in his briefing and 

at oral argument before this court that ‚contrary to GIW’s 

arguments, there is no basis for believing that the district court 

considered *the Trial Exhibits+ when it ruled on Murphy’s Rule 

60(b) motion for relief,‛ and he correctly observes that ‚the Final 

Order does not identify [the Trial Exhibits] as part of the 

materials considered by the district court.‛ Murphy further 

contends that this court ‚should not rely on *the Trial Exhibits+ 

in deciding whether the district court’s decision was erroneous‛ 

because ‚consideration of evidence from the trial of Barnes, held 

after Murphy’s motion for relief had been briefed and submitted, 

would violate due process.‛

We agree with Murphy that consideration of the Trial 

Exhibits would be improper. ‚‘Procedural due process requires, 

at a minimum, timely and adequate notice and an opportunity to 

be heard in a meaningful way.’‛ Osburn v. Bott, 2011 UT App 

138, ¶ 7, 257 P.3d 1028 (quoting McBride v. Utah State Bar, 2010 

UT 60, ¶ 16, 242 P.3d 769). In this case, as Murphy correctly 

acknowledges, ‚after the default judgment was entered against 

him, Murphy lost his right to contest liability, participate in the 

trial, or object to the evidence presented at Barnes’s trial.‛ 

Consequently, we conclude that GIW’s reliance on the Trial 

Exhibits is misplaced. And were we to reach the merits of the 

(continued<)
Go Invest Wisely v. Murphy

20140822-CA 8 2016 UT App 185

GIW did not rebut Murphy’s sworn testimony and its ‚failure to 

do so is fatal to any claim that Utah has personal jurisdiction 

over Murphy.‛ Because we conclude that the district court

improperly ruled on Murphy’s rule 60(b)(4) motion before ruling 

on his hearsay challenges, we do not reach the merits of the 

parties’ personal-jurisdiction arguments.

¶11 In support of his argument that the Motion Exhibits 

‚constitute inadmissible hearsay documents and lack 

foundation,‛ Murphy cites White Pine Ranches v. Osguthorpe, 731 

P.2d 1076 (Utah 1986), in which the Utah Supreme Court held 

that it was improper for a trial court to consider an abstract of 

the record from another case that was attached to the plaintiff’s 

motion for summary judgment, because the abstract was 

unauthenticated and was hearsay, and because the abstract did 

not constitute an affidavit or support an affidavit. Id. at 1077–78. 

In addition, Murphy cites several federal cases regarding 

summary judgment that explain that ‚before they can be treated 

as admissible, documents [in support of or in opposition to a 

motion for summary judgment] must ‘be authenticated by and 

attached to an affidavit that meets the requirements of [Federal 

Rule of Civil Procedure] 56(e) and the affiant must be a person 

through whom the exhibits could be admitted into evidence.’‛

3

 

(<continued)

jurisdictional issue, we might well agree with Murphy that it 

would be improper for this court to consider the Trial Exhibits.

3. Murphy refers to the former rule 56(e) of the Federal Rules of 

Civil Procedure for the requirements of an affidavit or 

declaration submitted in support of a motion for summary 

judgment. Rule 56 of the Federal Rules of Civil Procedure was 

amended in 2010. See Wilcox v. Career Step, LLC, 929 F. Supp. 2d 

1155, 1161 n.5 (D. Utah 2013). Consequently, rule 56(c)(4), and 

not rule 56(e), now outlines the procedures governing affidavits 

or declarations submitted in support of motions for summary 

judgment. See Fed. R. Civ. P. 56(c)(4) (‚An affidavit or 

(continued<)
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20140822-CA 9 2016 UT App 185

(Quoting Burnett v. Stagner Hotel Courts, Inc., 821 F. Supp. 678, 

683 (N.D. Ga. 1993).) See also, e.g., Hal Roach Studios, Inc. v. 

Richard Feiner & Co., 896 F.2d 1542, 1550–51 (9th Cir. 1989) (‚It is 

well established that unauthenticated documents cannot be 

considered on a motion for summary judgment. . . . A document 

which lacks a proper foundation to authenticate it cannot be 

used to support a motion for summary judgment.‛).

¶12 Notwithstanding the foregoing, Murphy has cited no 

cases—and our research has revealed none—in which a court 

applied the procedures and requirements of rule 56 to a rule 

60(b) motion for postjudgment relief. Cf. Robinson v. Jones Waldo 

Holbrook & McDonough, PC, 2016 UT App 34, ¶ 22 n.6, 369 P.3d 

119. Consequently, we are not persuaded that the Motion 

Exhibits were required to be accompanied by a sworn affidavit 

pursuant to rule 56.

¶13 However, it does not follow that the Motion Exhibits were 

not otherwise required to be properly authenticated under rule 

 

(<continued)

declaration used to support or oppose a motion must be made 

on personal knowledge, set out facts that would be admissible in 

evidence, and show that the affiant or declarant is competent to 

testify on the matters stated.‛).

During the relevant timeframe, rule 56(e) of the Utah 

Rules of Civil Procedure provided, ‚Supporting and opposing 

affidavits shall be made on personal knowledge, shall set forth 

such facts as would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to the 

matters stated therein.‛ Utah R. Civ. P. 56(e) (2014). In 2015, the 

Utah Supreme Court amended rule 56 ‚to adopt the style of the 

Federal Rule of Civil Procedure 56 without changing the 

substantive Utah law.‛ Id. R. 56 advisory committee notes (2015). 

The former version of Utah Rule of Civil Procedure 56(e) was 

nevertheless substantively similar to the current rule 56(c)(4) of 

the Federal Rules of Civil Procedure.
Go Invest Wisely v. Murphy

20140822-CA 10 2016 UT App 185

901 of the Utah Rules of Evidence and, if offered for their truth, 

to be brought within an exception to the hearsay rule. Rule 901 

requires that the proponent of an item of evidence authenticate 

or identify it with ‚evidence sufficient to support a finding that 

the item is what the proponent claims it is‛ and provides a 

nonexhaustive list of means by which evidence may be 

authenticated. See Utah R. Evid. 901. Moreover, if the contents of 

a document are offered for their truth, see id. R. 801(c), they must 

be brought within an exception to the hearsay rule, see id. R. 803, 

804.

¶14 In denying Murphy’s request for relief, the district court 

concluded that Murphy ‚engaged in transactions, supplied 

documents and caused injury in Utah according to the 

complaint. [GIW] also provided exhibits establishing these 

facts.‛ Based on this language from the district court’s order, we 

can infer that the district court concluded that the Motion 

Exhibits were admissible evidence. However, the district court 

provided no findings, no analysis, and gave no reasoning in 

support of that conclusion, and nothing in the court’s order 

indicates that the court specifically considered and rejected

Murphy’s hearsay arguments regarding the Motion Exhibits.

¶15 Consequently, because the district court failed to 

meaningfully address Murphy’s argument that the Motion 

Exhibits constituted inadmissible hearsay, we are unable to 

determine on what grounds the district court found the twentyfour Motion Exhibits to be admissible or the extent to which its 

ultimate conclusion was based on them. For example, we do not 

know whether the district court determined that the individual 

exhibits required authentication to be admissible and, if so, 

whether they were sufficiently authenticated or selfauthenticating. Likewise, we do not know if the district court 

determined that the individual exhibits either did not constitute 

hearsay or were admissible under an exception to the hearsay 

rule. Additionally, we are unable to determine which of the 

twenty-four Motion Exhibits the district court specifically relied 

on in determining that it had personal jurisdiction over Murphy, 
Go Invest Wisely v. Murphy

20140822-CA 11 2016 UT App 185

or whether the court could have reached the same result without 

those exhibits. Accordingly, although the question of whether 

the district court’s exercise of personal jurisdiction over Murphy 

was proper presents a question of law, which we review for 

correctness, see supra ¶ 8, we are unable to determine the 

propriety of the district court’s jurisdictional determination, see 

Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987) (‚The findings of 

fact must show that the court’s judgment or decree follows 

logically from, and is supported by, the evidence. The findings 

should be sufficiently detailed and include enough subsidiary 

facts to disclose the steps by which the ultimate conclusion on 

each factual issue was reached.‛ (citations and internal quotation 

marks omitted)).

¶16 Therefore, we vacate the district court’s decision and 

remand with instructions to determine which, if any, of the 

individual Motion Exhibits that the court relied on constitute

admissible evidence. Once it has decided the admissibility of the 

Motion Exhibits, the district court should again consider 

whether its exercise of personal jurisdiction over Murphy is 

proper and identify the admissible evidence on which its ruling 

is based.

4

 

4. Based on the district court’s conclusion that Murphy ‚made a 

general appearance in this case when he wrote and filed the 

letter asking for an extension of time,‛ Murphy also contends 

that his letter to the district court asking for ‚an extension of 

time in which to submit [a] response/answer due to [his] current 

incarceration‛ did not waive his right to challenge personal 

jurisdiction. The Utah Supreme Court has acknowledged that 

‚*t+he distinction between general and special appearances has 

been abolished by the language contained in Rule 12(b) [of the 

Utah Rules of Civil Procedure+ as follows: ‘No defense or 

objection is waived by being joined with one or more other 

defenses or objections in a responsive pleading or motion or by 

further pleading after the denial of such motion or objection.’‛ 

(continued<)
Go Invest Wisely v. Murphy

20140822-CA 12 2016 UT App 185

II. Mistake and Excusable Neglect

¶17 Murphy alternatively argues that he ‚should be granted 

relief [from the default judgment] as a result of mistake and 

excusable negligence.‛ Pursuant to rule 60(b) of the Utah Rules 

of Civil Procedure, ‚[o]n motion and upon such terms as are just, 

the court may in the furtherance of justice relieve a party or its

legal representative from a final judgment, order, or proceeding 

for the following reasons: (b)(1) mistake, inadvertence, surprise, 

or excusable neglect.‛ Utah R. Civ. P. 60(b)(1). ‚To be entitled to 

relief under the rule, a party must show that ‘(1) the motion is 

timely; (2) there is a basis for granting relief under one of the 

subsections of 60(b); and (3) the movant has alleged a 

meritorious defense.’‛ Asset Acceptance LLC v. Stocks, 2016 UT 

App 84, ¶ 13 (quoting Menzies v. Galetka, 2006 UT 81, ¶ 64, 150 

P.3d 480).

¶18 As a preliminary matter, the parties dispute whether 

Murphy’s rule 60(b)(1) motion was timely. A motion made 

 

(<continued)

Ted R. Brown & Assocs., Inc. v. Carnes Corp., 547 P.2d 206, 207 

(Utah 1976) (quoting Utah R. Civ. P. 12(b)). Moreover, the Utah

Supreme Court has held that a defendant did not waive its 

jurisdictional claim by sending a pro se letter to plaintiff’s 

counsel (but addressed to the district court) where the defendant 

‚did not ask for affirmative relief of the court‛ and ‚merely 

denied responsibility for the injury and identified the case by its 

number.‛ Parry v. Ernst Home Center Corp., 779 P.2d 659, 661 

(Utah 1989). Here, Murphy’s pro se letter to the district court and 

GIW’s counsel did not ask for affirmative relief of a substantive 

nature; rather, Murphy’s letter merely sought an ‚an extension 

of time in which to submit [a] response/answer due to [his] 

current incarceration.‛ Consequently, we conclude that 

Murphy’s letter did not amount to a general appearance in the 

case or otherwise waive his jurisdictional defense.
Go Invest Wisely v. Murphy

20140822-CA 13 2016 UT App 185

under rule 60(b)(1) ‚must be filed within a reasonable time 

and . . . not more than 90 days after entry of the judgment or 

order.‛5 Utah R. Civ. P. 60(c). Here, the district court entered 

judgment on March 10, 2014, and Murphy filed his motion for 

relief on Monday, June 9, 2014. Thus, Murphy filed his motion 

ninety-one calendar days after the court entered judgment. See 

id. R. 6(a)(1) (‚When the period is stated in days or a longer unit 

of time: . . . exclude the day of the event that triggers the 

period; . . . count every day, including intermediate Saturdays, 

Sundays, and legal holidays; and . . . include the last day of the 

period, but if the last day is a Saturday, Sunday, or legal holiday, 

the period continues to run until the end of the next day that is 

not a Saturday, Sunday or legal holiday.‛). However, because 

the ninety-day deadline fell on Sunday, June 8, 2014, Murphy 

had until the end of the day on Monday, June 9, 2014, to timely 

file his motion. See id. Consequently, Murphy’s motion for relief 

was timely.

¶19 Murphy contends that he should have been granted relief 

under rule 60(b)(1) because ‚when the Court failed to respond in 

any manner [to his request for an extension of time], Murphy 

reasonably, if mistakenly, believed that he had been granted 

additional time.‛ This claimed ‚mistake‛ serves as Murphy’s 

excuse for neglecting to timely file an answer. According to 

Murphy, he was unable to respond to GIW’s complaint in a 

timely manner because he was incarcerated in Ohio at the time 

of service and ‚had limited access to funds for retaining an 

attorney,‛ resulting in his inability to search for an attorney in 

Utah. Murphy contends that he nonetheless acted with due 

diligence when he sent a letter to the district court requesting 

additional time to respond to GIW’s complaint. Murphy also 

contends that by sending his request for an extension of time to 

 

5. Whereas a motion made under rule 60(b)(1), (2), and (3) must 

be filed ‚not more than 90 days after entry of the judgment or 

order,‛ a motion made under rule 60(b)(4), (5), and (6) must be 

filed within a reasonable time. See Utah R. Civ. P. 60(c).
Go Invest Wisely v. Murphy

20140822-CA 14 2016 UT App 185

the district court, he did ‚exactly what a reasonable person 

would have done under the circumstances.‛

¶20 In its order denying Murphy’s motion for relief, the

district court observed that it did not grant Murphy an extension 

of time to answer and that Murphy’s ‚claim to making such an 

assumption is belied by the fact he waited a half year after being 

served, including four and a half months after getting out of jail, 

to do anything, far beyond any reasonable amount of time even 

if his assumption was correct.‛ The district court further found 

that Murphy

provides no facts showing that once he had got out 

of jail, circumstances made him unable to act for 

six weeks. Had he even been served the day of his 

release, he would have had to answer in 30 days, 

but did nothing for 45 days to the default date, and 

then continued to do nothing thereafter for 90 

days. This is not excusable neglect because Murphy 

presents no evidence of diligence on his part. It is 

noteworthy Murphy never told the Court or 

counsel he was out of jail and asked for an 

extension of time at that point. He did nothing for 

seven weeks to find counsel or contact the Court. 

He presents no facts saying anything ‚prevented‛

him from doing something. Any neglect was not 

excusable. Hiding one’s head in the sand or doing 

nothing is not excusable.

(Citation omitted.) We agree with the district court, and 

conclude that Murphy’s inaction does not qualify for relief as 

excusable neglect.

¶21 ‚To demonstrate that *a+ default was due to excusable 

neglect, ‘*t+he movant must show that he has used due diligence 

and that he was prevented from appearing by circumstances 

over which he had no control.’‛ Black’s Title, Inc. v. Utah State Ins.

Dep’t, 1999 UT App 330, ¶ 10, 991 P.2d 607 (second alteration in 
Go Invest Wisely v. Murphy

20140822-CA 15 2016 UT App 185

original) (quoting Airkem Intermountain, Inc. v. Parker, 513 P.2d 

429, 431 (Utah 1973)). ‚Due diligence is established where the 

failure to act was the result of the neglect one would expect from 

a reasonably prudent person under similar circumstances.‛ 

Sewell v. Xpress Lube, 2013 UT 61, ¶ 29, 321 P.3d 1080 (ellipsis, 

citation, and internal quotation marks omitted); see also Bodell 

Constr. Co. v. Robbins, 2014 UT App 203, ¶ 10, 334 P.3d 1004 (‚*I+n

determining whether a party has exercised due diligence 

sufficient to justify excusing it from the full consequences of its 

neglect under rule 60(b), the trial court must consider whether 

the actions of the party seeking relief were sufficiently diligent 

and responsible, in light of the attendant circumstances.‛ 

(citation and internal quotation marks omitted)). 

¶22 Although Murphy contends that he acted as a reasonable 

person would have when he took affirmative steps to address 

the complaint by sending his letter requesting ‚an extension so 

that he could have sufficient time to access his funds and retain a 

lawyer,‛ that was the only action Murphy took in the six months 

after he was served. In all fairness to Murphy, the district court 

could have informed him of the status of his request. Murphy 

has not, however, explained why it was reasonable for him to 

construe the district court’s silence as granting him an extension

of time.

¶23 Moreover, when Murphy did not hear from the district 

court, it was unreasonable for him to assume that his request 

had been granted and to do nothing for six months thereafter. 

This is especially true given that Murphy was released from 

prison no later than January 22, 2014, yet took no action relating 

to the lawsuit between that date and the default-judgment 

date—March 10, 2014—and no action for three months after the 

default-judgment date. And, as the district court correctly 

observed, Murphy has presented no evidence that he was 

somehow ‚prevented from appearing by circumstances over 

which he had no control‛ once he got out of prison. See Black’s 

Title, 1999 UT App 330, ¶ 10 (citation and internal quotation 

marks omitted). Because Murphy has not shown that there is a 
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20140822-CA 16 2016 UT App 185

basis for granting relief under rule 60(b)(1), we need not address 

whether he has alleged a meritorious defense. See Asset 

Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13. We conclude that 

the district court did not abuse its discretion in rejecting 

Murphy’s rule 60(b)(1) motion. See Jones v. Layton/Okland, 2009 

UT 39, ¶ 10, 214 P.3d 859 (‚We review a district court’s denial of 

a rule 60(b) motion for relief from judgment for an abuse of 

discretion.‛).

CONCLUSION

¶24 We affirm the district court’s denial of Murphy’s motion 

for relief pursuant to rule 60(b)(1) of the Utah Rules of Civil 

Procedure. However, we vacate the district court’s denial of 

Murphy’s motion to set aside the default judgment pursuant to 

rule 60(b)(4) and remand this case to the district court so that the 

court may determine whether any of the individual Motion 

Exhibits constitute admissible evidence and thereby determine 

whether the court’s exercise of personal jurisdiction over 

Murphy is proper.