UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-30455

NEW YORK LIFE INSURANCE COMPANY,

Plaintiff-Appellee,

VERSUS

ALVIN J. BROWN,

Defendant-Appellant,

VERSUS

LESLIE A. BROWN,

Defendant-Appellee.

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No. 95-30786

NEW YORK LIFE INSURANCE COMPANY,

Plaintiff-Appellee,

VERSUS

ALVIN J. BROWN,

Defendant,

and

LESLIE A. BROWN

Defendant-Appellant.

Appeals from the United States District Court2 for the Middle District of Louisiana

May 15, 1996

Before SMITH, DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

This case involves two separate appeals from the same district

court case. Both appeals arise out of an interpleader action

brought by New York Life Insurance Company (“New York Life”)

against Alvin Brown and his ex-wife Leslie Brown seeking to

determine who owned several life insurance policies. The district

court (1) found that Leslie owned the policies, (2) released New

York Life from liability and (3) enjoined both Alvin and Leslie

from re-litigating the ownership of the policies in any court. In

95-30455, Alvin appeals the district court’s denial of his motion

the vacate the judgment. He claims that the judgment against him

is void because it was entered without notice. He argues that even

though he had defaulted, he was still entitled to notice before

summary judgment was granted against him. In 95-30786, Leslie

appeals the distr ict court order enjoining her from pursuing the

California small claims cour t actions and a California superior

court action against New York Life. We hold that the failure to

provide Alvin notice before the summary judgment denied him due

process of law. Thus, the district court erred in refusing to

vacate the judgment against him. We vacate 95-30455 and remand for

further proceed i ngs. Because the summary judgment was

inappropriate, we also vacate and remand 95-30786, Leslie’s appeal.1 Leslie claims that she did not learn of the interpleader

suit and injunction until May 18.

3 I. BACKGROUND

In March 1971, Plaintiff-Appellee New York Life issued the

first of several whole life insurance policies to Def endantAppellant Alvin Brown. The policy provided for a waiver of

premiums if Alvin became disabled. In January 1972, Alvin was

found to be totally and permanently disabled because of his war

injuries (he lost his left arm in Vietnam), so the premium waiver

clause went into effect. Alvin married Defendant-Appellee Leslie

Brown in February 1971. In 1980, Alvin and Leslie divorced. On

July 4, 1981, ownership of the policies was transferred to Leslie.

(Alvin argues that his signature on the change of ownership form

was forged).

Lesl ie claimed ownership of the policies and sought to have

New York Li fe issue two option policies to her. New York Life

refused, because it was not sure whether Alvin or Leslie owned the

policies. On April 7, 1992, New York Life filed an interpleader

action under 28 U.S.C. § 1335 in federal district court in

Louisiana, seeking to establish the ownership of the policy. The

defendants in the interpleader action were Alvin Brown and his exwife Leslie Brown. The federal district court enjoined the

defendants from instituting any suits against New York Life

concerning the ownership of the policies. The next day, April 8,

Leslie filed suit against New York Life in California state small

claims court, seeking the issuance of the option policies. 1 In4

May, New York Life filed a notice of the federal injunction in the

small claims court and sought to stay the proceedings. The small

claims court apparently ignored that order. In July, two judgments

were entered against New York Life in the small claims cases; New

York Life has appealed those judgments. Leslie stipulated to a

stay of the appeals.

When Alvin was sued, two unsuccessful attempts to ser ve him

were made before he was properly served. On April 15, 1992, the

first try was made at “5101 Nicholson A-16" in Baton Rouge,

Louisian a. The remarks on the marshal’s return said “Invalid

Address Accor ding To Current Resident ... No Phone Directory

Listing

... Return Unexecuted.” The second attempt was on May 12,

1992, at “3539 Clayton Street” in Baton Rouge. The remarks on the

marshal’s return said “Current Resident Advises That Subject Moved

-- No Forward ... No Directory Asst. Listing.” The third attempt

was successfully made on June 29, 1992 at “4944 Castlebrook Apts

#326" in Baton Rouge.

On July 9, 1992, before either defendant answered, Al vin,

Leslie and New York Life attended a telephone settlement conference

before a magi strate judge. On August 12, Alvin phoned New York

Life’s attorney and told her that he had not responded because he

had been out of tow n. He told her that he was unwilling to

stipulate to Leslie’s ownership and that he would attempt to retain

counsel. New York Life’s attorney notified the court of this

conversation by letter. A status conference was set for September

10, but Alvin declined to participate in it.2 The notice of default was mailed to the Clayton address,

which the second marshal’s return had shown to be invalid. It was

returned undelivered.

5 On October 13, Alvin still had not answered, so New York Life

had a default entered against him. 2 In October 1992, Leslie filed

a motion for summary judgment. In November, the magistrate ordered

the clerk to mail a copy of the motio n to Alvin. The motion was

mailed to the Clayton address, which the second marshal’s return

showed to be invalid. The letter was returned undelivered.

Summary judgment was granted in January 1993. The judgment held

that Leslie owned the policies and both Leslie and Alvin were

permanently enjoined from suing New York Life in any court for a

determination of the ownership of the policies.

In February 1994, Leslie, this time repr esented by counsel,

sued New York Life in California state court, alleging that the

interpleader was a sham and seeking damag es. In April 1995, the

federal district court denied New York Life’s motion to enforce the

injunction and stop the suits. In July 1995, however, the court

reconsidered that ruling and gran ted the motion. Leslie was

specifically enjoined from p ursuing the California small claims

court actions and the California superior court action against New

York Life.

In April 1994, Alvin phoned New York Life’s attorney to check

the status of his case. He then learned that judgment had been

entered over a year earlier recognizing Leslie as the owner of the

policies and absolving New York Life of further liability. In

October 1994, Alvin obtained counsel and filed a motion to vacate3 All rule references are to the Federal Rules of Civil

Procedure.

6 the judgment. That motion was denied in April 1995. Alvin filed

a timely notice of appeal.

II. DISCUSSION

A. 95-30455 NEW YORK LIFE V. ALVIN BROWN

Because it is important to keep straight default language, a

review of the terms regarding defaults is appropriate. A default

is when a defendant has failed to plead or otherwise respond to the

complaint within the time required by the Federal Rules. An e ntry

of default is what the clerk enters when the default is established

by affidavit or otherwise . Fed. R. Civ. P. 55(a). 3 After

defendant’s default has been entered, plaintiff may apply for a

judgment based on such default. This is a default judgment

.

In the instant case, Alvin defaulted because he did not file

an answer within the allowed time. On New York Life’s motion, an

entry of default was entered against Alvin; a default judgment was

never entered. Instead, Leslie moved for summary judgment, which

was granted.

1. Whether Alvin “Appeared”

Alvin complains that he never received notice of the summary

judgment. Leslie contends that because Alvin defaulted, he was not

entitled to notice. We conclude that Alvin appeared in the lawsuit

and was thus entitled to notice before the granting of the summary

judgment.4 Leslie contends that Alvin is raising for the first time on

appeal the issue of whether he appeared in the action. While her

argument is not without merit, we disagree. No “bright-line rule”

exists for determining whether a matter was raised below. F irst

United Financial Corp. v. Specialty Oil Co

. , 5 F.3d 944, 948 n.9

(5th Cir. 1993). “[I]f a litigant desires to preserve an argument

for appeal, the litigant must press and not merely intimate the

argument during the proceedings before the district court. If an

argument is not raised to such a degree that the district court has

an opportunity to rule on it, we will not address it on appeal.”

F .D.I.C. v. Mijalis , 15 F.3d 1314, 1327 (5th Cir. 1994). Issues

may be raised for the first time in post-judgment motions. First

National Bank

of Commerce v. Lamaze , 7 F.3d 1227, 1229 n.9 (5th

Cir. 1993). While Alvin might have raised the issue more

specifically, we are persuaded that his motion to vac ate the

judgment met the threshold level to avoid waiver. Alvin’s motion

informs the court the he is complaining of a lack of notice before

the granting of summary judgment. We are convinced that this was

adequate to allow the court to rule on the issue.

5 This discussion of appearances is drawn from caselaw on

Rule 55 (b)(2) appearances, which require three days notice and

entry of judgment by the court for default judgments when the

defendant has appeared. However, Rule 5(a) appearances will be

treated the same, as both 55(b)(2) and 5(a) involve defendants who

at one time appeared, but later defaulted.

7 Rule 5 requires that “every written motion

... be served upon

each of the parties. No service need be made on parties i n default

for failure to appear .” (Emphasis added). “[B]y a ppearing at any

time in the action, a party becomes entitled to have his attorney

notified of all subsequent proceedings and receive copies of all

papers, even if he later cho oses to default.” W RIGHT AND M ILLER

,

F EDERAL P RACTICE AND P ROCEDURE § 1144 (2d ed. 1987) (emphasis added).

In order to determine whether Alvin was entitled to service of

the motion for summary ju dgment, we must first determine whether

Alvin’s actions rose to the level of an appearance. 4 An appearance

“involves some presentation or submission to the court.” 5 W R IGHT AND

M ILLER

, F E DERAL P RACTICE AND P ROCEDURE § 2686 (2d ed. 1987) (internal8

quotation omitted). What constitutes an appearance is not

“confined to physical appearances in court or the actual filing of

a document in the record.” S un Bank of Ocala v. Pelican Homestead

and Savings Assoc

. , 874 F.2d 274, 276 (5th Cir. 1989). Appearances

“include a variety of informal acts on defendant’s part which are

responsive to plaintiff’s formal action in court, and which may be

regarded as sufficient to give plaintiff a clear indication of

defendant’s intention to contest the claim.” Sun Bank

, 874 F.2d at

276 (internal quotation omitted). In summary, an appearance is an

indication “in some way [of] an intent to pursue a defense.”

United States v. McCoy

, 954 F.2d 1000, 1003 (5th Cir. 1992). This

is “a relatively low threshold.” Id

.

Alvin took two actions which could be considered appearances:

(1) he partic ipated in a telephone conference with the other

parties before the magistrate judge and (2) he spoke with counsel

for New York Life, infor ming her that he would not sign a

stipulation and that he was attempting to retain counsel to contest

the suit. We conclude that Alvin’s attendance at the phone

conference before the magistrate judge is an appearance, because he

actually appeared in court (albeit by phone). Likewise, his phone

call to New York Life’s counsel, informing him that he would

contest the suit, is also an appearance. Charlton L. Davis & Co.

v. Fedder Data Center, Inc

. , 556 F.2d 308, 309 (5th Cir. 1977)

(phone call from defendant to plaintiff’s attorney, informing him

that he intended to conte st the suit, considered an appearance).

Therefore, because Alvin had appeared in the suit, he was entitled6 Rule 56 requires that the summary judgment motion be served

at least 10 days before the hearing.

7 Because Leslie was concerned that Alvin would harm her,

special arrangements were made with the court so Alvin would not

learn her address. Pursuant to the arrangement, service of all

papers from Leslie to Alvin was made through the court.

9 under Rule 5(a) to service of all papers in the suit, including the

motion for summary judgment. 6

2. Whether Alvin Received Notice

Because Alvin was entitled to notice, we must determine

whether he actually received it. After reviewing the facts, we

determine that the district clerk’s mailing of the notice to an

address it knew from its own documents to be invalid, d oes not

satisfy the notice requirement of Rule 5.

The magistrate judge ordered the clerk to mail a copy of the

summary judgment motion to Alvin. 7 The clerk mailed the papers to

the Clayton address (where the second unsuccessful attempt at

service had been made). In its order denying Alvin’s motion to

vacate judgment, the district court found that this was not a

problem, because Alvin was under a continuing obligation to apprise

the court of any address changes.

Rule 5(b) requires service to be made by mailing a copy of the

papers “to the attorney or party at the attorney’s or party’s last

kn own address....” Alvin correctly points out that the Clayton

address was not his last known address; his last known address was

at the Castlebrook Apartments, where he had been served. The

district court’s statement that Alvin was under a con tinuing

obligation to notify the court of any change in address is10

inapposite: he had not moved. The court tried to serve him at an

a ddress it knew, or should have known, was not his last known

address. Therefore, the attempt at service did not conform with

Rule 5, and Alvin did not receive the notice to which he was

entitled.

3. Alvin’s Motion to Vacate the Judgment

Rule 60(b)(4) allows district courts to “relieve a party ...

from a final judgment” because the judgment is void. We typically

review district court orders denying Rule 60(b) relief for abuse of

discretion. C

JC Holdings, Inc. v. Wright & Lato, Inc

. , 979 F .2d

60, 63 (5th Cir. 1992). “When, however, the motion is based on a

void judgment under rule 60(b)(4), the district court has no

discretion

-- the judgment is either void or it is not.”

Recreational Prop. Inc. v. Southwest Mortgage Serv. Corp

. , 804 F.2d

311, 313 (5th Cir. 1986); W RIGHT

, M ILLER AND K ANE

, F EDERAL P RACTICE AND

P ROCEDURE § 2862 (2d ed. 1995). “[T]here is no time limit on an

attack on a judgment as void . The one-year limit applicable to

so me Rule 60(b) motions is expressly inapplicable, and even the

requirement that the motion be made wit hin a ‘reasonable time,’

which seems literally to apply to motions under Rule 60(b)(4),

cannot be enforced with regard to this class of motion.” B riley v.

Hidalgo

, 981 F.2d 246, 249 (5th Cir. 1993)(quoting W RIGHT

, M ILLER AND

K ANE

, F EDERAL P RACTICE AND P ROCEDURE § 2862 (1973)) (brackets in

original).

In order to determine whether the judgment should be set

aside, we must determine whether the judgment is void. “A judgment11

is not void merely because it is erroneous.” W R IGHT

, M ILLER AND K ANE

,

F EDERAL P RACTICE AND P ROCEDURE § 2862 (2d ed. 1995) “A judgment ‘is

void only if the court that rendered it lacked jurisdiction of the

subject matter, or of the parties, or if it acted in a manner

inconsistent with due process of law.’” W illiams v. New Orleans

Public Serv., Inc.

, 728 F.2d 730, 735 (5th Cir. 1984) (quoting

W RIGHT

, M ILLER AND K ANE

, F EDERAL P RACTICE AND P ROCEDURE § 2862 (1973)).

The district court had both subject matter and personal

jurisdiction. Thus, our only inquiry is whether the district court

acted in a manner so inconsistent with due process as to render the

judgment void. “[O]rdinarily all that due process requires in a

civil case is proper notice and service of process and a court of

competent jurisdiction; procedural irregularities during the course

of a civil case, even serious ones, will not subject the judgment

to collateral attack.” F ehlhaber v. Fehlhaber

, 681 F.2d 1015, 1027

(5th Cir. 1982), cert. denied , 464 U.S. 818 (1983).

Under our system of justice, the opportunity to be heard is

the most fundamental requirement. M ullane v. Central Hanover Bank

& Trust Co

. , 339 U.S. 306, 314 (1950) (“The fundamental requisite

of due process of law is the opportunity to be heard.”). Without

notice of an impending grant of summary judgment, a defendant has

no opportunity to be heard. Therefore, Alvin was denied due

process of law and the judgment against him is void. B ass v.

Hoagland

, 172 F.2d 205 (5th Cir.), cert. denied

, 359 U.S. 816

(1949). Because the judgment against him is void, the district12

court erred in refusing the vacate the judgment under Rule

60(b)(4).

B. 95-30786 NEW YORK LIFE V. LESLIE BROWN

Leslie complains about the district court’s permanent

injunction prohibiting her from suing New York Life in California

for bad faith actions regarding the insurance policy. Because the

judgment against Alvin is vacated, it is yet to be determined

whether Leslie or Alvin owns the life insurance policies.

Therefore, there is no final judgment in the case. As there is no

final judgment, a permanent injunction is inappropriate, so it is

vacated. Thus, we need not consider Leslie’s claims.

CONCLUSION

Because the summary judgment against Alvin has been vacated,

the case is returned to the same procedural position that existed

before the summary judgment was taken. That is, (1) Alvin has

defaulted and an entry of default has been entered against him; (2)

Leslie has filed for summary judgment, but that motion has yet to

be served on Alvin; and (3) a preliminary injunction exists

restraining Leslie and Alvin from instituting any actions against

New York Life relative to the life insurance policies.

Because Alvin has defaulted, he must succeed in setting aside

the default before he will be permitted to re spond to the motion

for summary judgment. Only if a Rule 55(c) motion is made, and

granted, will Alvin be allowed to file an answer or a response to

the summary judgment motion. We express no opinion as to how the

district court should rule on any Rule 55(a) motion.8 Because we need not reach the issue of the preclusive

effect of failing to file a counterclaim on the issue, we express

no opinion as to whether the claim is a compulsory counterclaim

under Rule 13(a).

9 One issue Leslie raised, however, does deserve comment.

Leslie argued that she did not raise her clai ms against New York

Life at the interpleader level because the district court has

enjoined her fromdoing so. We believe that Leslie misreads the

injunction. As we read it, Leslie is prohibited from filing an

action related to t he policies in any other court. She is not

prohibited from filing a counterclaim in the interpleader action.

We are aware that Leslie was pro se throughout much of the

proceeding. Nonetheless, we believe that Leslie should have asked

the district court for clarification of its order before she chose

to avoid filing a possibly-compulsory counterclaim.

13 Leslie has not brought the bad faith action against New York

Life as a counterclaim. 8 Should Leslie seek to amend her answer to

raise this counterclaim, she may file for leave of the district

court to amend her answer. 9 We express no opinion as to whether

the district court should grant leave; instead we entrust that

decision to the d istrict court’s sound discretion. C hitimacha

Tribe of Louisiana v. Harry L. Laws Co. , 690 F.2d 1157, 1163 (5th

Cir. 1982), cert. denied , 464 U.S. 814 (1983).

The judgments of the district court in both 95-30455 and 95-

30786 are VACATED and REMANDED for further proceedings consistent

with this opinion.