UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS.

DANIEL FISHER, ET AL.,

Defendants.

)

)

)

) CIVIL ACTION NO.

)

) 3:03-CV-2108-G

)

) ECF

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendant Daniel Fisher (“Fisher” or “the

defendant”), under Rule 60(b), F.R. CIV. P., for relief from the default judgment and

permanent injunction rendered against him and from a resulting contempt order. For

the following reasons, Fisher’s motion is denied. Additionally, Fisher has filed a

motion to correct the record which is DENIED as moot.

I. BACKGROUND

On September 17, 2003, the United States brought a complaint for permanent

injunction against Daniel Fisher, Brenda Meyers-Fisher, EOTL Systems, Inc., and Tax
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Dynamix, LLC, under 26 U.S.C. §§ 7402, 7407, and 7408. See United States’

Response in Opposition to Daniel Fisher’s Rule 60(b) Motion for Relief

(“Government’s Response”) at 1. Copies of the complaint were left with MeyersFisher, Fisher’s wife at the time, on September 30, 2003, at an apartment believed by

the process server to be the Fishers’ home. Id. Fisher claimed then, as he does now,

that he was not home and that he was not, therefore, properly served. Id.

Fisher did not answer the complaint and, upon motion of the government,

default was entered against the defendants on January 20, 2004. Id. On January 26,

2004, this court granted the government’s motion for default judgment and entered

an order of permanent injunction against all defendants. See Docket Entry #45. 

Fisher then failed to produce the documents required by the preliminary injunction,

and as a result, the government filed a motion on March 5, 2004 to require Fisher to

show cause why he should not be held in contempt. See Docket Entry #69. In

response, Fisher filed a motion to dismiss, pursuant to FED. R. CIV. P. 4(m) and

60(b), seeking dismissal for improper service or, in the alternative, relief from the

permanent injunction. See Docket Entry #76. This court held a show cause hearing

on March 23, 2004, to address the contempt issue. See Government’s Response at 2. 

Fisher argued at the hearing that the case should be dismissed because service of

process was improper. Id. However, Fisher admitted he had notice of the case

pending against him and that he had been following the case through PACER. Id.
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Additionally, pleadings had been filed on his behalf. Id. Fisher did not offer any

evidence of compliance with the injunction, and as a result the court found him in

contempt and denied his motion to dismiss. See Docket Entry #89. Fisher was later

released pursuant to an agreement with the government that he would comply with

the injunction. 

Now, nearly three and a half years later, Fisher has filed the instant motion,

pursuant to Rule 60(b), for relief from the judgment.

II. ANALYSIS

Motions under Rule 60(b) are directed to the sound discretion of the district

court. In Re Grimland, Inc., 243 F.3d 228, 233 (5th Cir. 2001); Crutcher v. Aetna Life

Insurance Company, 746 F.2d 1076, 1082 (5th Cir. 1984). Fisher brings his motion

pursuant to Rule 60(b)(4), (5) and (6), which provide:

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 following reasons: 

. . .

(4) the judgment is void;

(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 equitable

that the judgment should have prospective

application;

(6) any other reason justifying relief from the

operation of the judgment.
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The Fifth Circuit, in Magness v. Russian Federation, 247 F.3d 609, 618-19 (5th

Cir.), cert. denied, 534 U.S. 892 (2001), outlined eight factors to be considered when a

district court rules on a Rule 60(b) motion to vacate a default judgment. The eight

factors are:

(1) that final judgments should not be lightly disturbed;

(2) that the Rule 60(b) motion is not to be used as a

substitute for appeal;

(3) that the rule should be liberally construed in order to

achieve substantial justice;

(4) whether the motion was made within a reasonable

time;

(5) whether, if the judgment was a default or a dismissal in

which there was no consideration of the merits, the interest

in deciding cases on the merits outweighs, in the particular

case, the interest in the finality of judgments, and there is

merit in the movant’s claim or defense;

(6) whether if the judgment was rendered after a trial on

the merits, the movant had a fair opportunity to present

his claim or defense;

(7) whether there are intervening equities that would make

it inequitable to grant relief; and

(8) any other factors relevant to the justice of the judgment

under attack.

Id.
* Upon consideration of the factors, the court notes that none of them

weighs in favor of granting relief to Fisher in this situation. The court has entered a

final judgment that should not be lightly disturbed, Fisher’s motion is untimely, filed

almost three and a half years after judgment was entered against him, and Fisher had

the opportunity to appeal but failed to do so.

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A. Motion for Relief from Default Judgment

 and Permanent Injunction

Under Rule 60(b)(4), a judgment is “void” only if the court had no jurisdiction

over the proceedings or the proceedings violated due process. Magness, 247 F.3d at

619 n.19. Fisher essentially uses the instant Rule 60(b) motion to re-urge the

jurisdictional arguments that failed him at the show cause hearing in 2004. Fisher

argues that because service of process was not personally made on him, the court

lacks jurisdiction. See Memorandum in Support of Petitioner’s Motion (“Fisher’s

Motion”) at 4. Any jurisdictional defense that Fisher may have had was waived by

his active participation in and notice of the case against him. Broadcast Music, Inc. v.

M.T.S. Enterprises, Inc., 811 F.2d 278, 281 (5th Cir. 1987) (finding that the

defendants, through their notice of the pending suit and their attorney’s involvement

in the case, waived the defense of insufficiency or failure of service of process). The

passage of time has not made Fisher’s arguments any more convincing than they were

when he presented them at the show cause hearing. Furthermore, Fisher does not

present any new evidence, and he fails to address the factors set forth by the Fifth

Circuit in Magness.

*

 Therefore, the court finds that the initial default judgment was
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not “void” under Rule 60(b)(4) and Fisher’s motion for relief from the judgment on

that ground is denied.

Turning now to Rule 60(b)(5), Fisher has not shown that the judgment should

be set aside on these grounds. Fisher simply mentions subsection (b)(5) and moves

on. See Fisher’s Motion at 19. To the extent the Fisher asserts that the default

judgment is “no longer equitable,” his argument is unconvincing. Id. Fisher’s motion

for relief from the default judgment under Rule 60(b)(5) is denied.

Finally, Fisher seeks relief under the Rule 60(b)(6) catchall provision, which is

applied only in “situations showing compelling or aggravated circumstances involving

extreme hardship and injustice.” McDonald v. Oliver, 642 F.2d 169, 171-72 (5th Cir.

1981). This case does not present such a situation. As noted above, Fisher knew

about the proceedings pending against him. Fisher’s motion under Rule 60(b)(6) is

denied.

B. Motion for Relief from Contempt Order

Fisher also seeks relief from the order of contempt entered against him. Fisher

argues that the court’s finding of contempt was not based on clear and convincing

evidence. See Fisher’s Motion at 17. However, at the show cause hearing Fisher

offered no valid explanation for his failure to comply with the permanent injunction,

choosing only to reassert his deficient jurisdictional arguments. Therefore, Fisher’s

motion for relief from the contempt order is denied.
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C. Motion to Correct Record

Finally, Fisher had filed a motion with the court seeking to correct certain

errors contained in his reply. See generally Motion to Correct Record Nunc Pro Tunc. 

The court denies this motion as moot.

III. CONCLUSION

For the reasons stated above, the motions of the defendant are DENIED.

SO ORDERED.

January 29, 2008.

___________________________________

A. JOE FISH

Senior United States District Judge