2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2008

Budget Blinds Inc v. White

Precedential or Non-Precedential: Precedential

Docket No. 06-2610

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 06-2610

BUDGET BLINDS, INC.,

 Appellant

 v.

VALERIE WHITE;

BUDGET BLINDS OF NJ, INC.;

VAL U BLINDS, INC.

Case No: 06-2733

BUDGET BLINDS, INC.

 v.

VALERIE WHITE;

BUDGET BLINDS OF NJ, INC.;

VAL U BLINDS, INC.,

 Appellants
2

 

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 05-mc-00388

District Judge: The Honorable William J. Martini

 

Argued April 9, 2008

Before: SMITH, HARDIMAN, and 

COWEN, Circuit Judges

Howard A. Matalon, Esq.

Stryker, Tams & Dill, LLP

Two Penn Plaza East

Newark, NJ 07105-0000

Jeremiah J. Morgan, Esq. (argued)

Bryan Cave LLP

1200 Main Street

3500 One Kansas City Place

Kansas City, MS 64105-2100

Counsel for Budget Blinds, Inc.

Ronald J. Nelson, Esq. (argued)

161 Washington Valley Road

Suite 207, Washington Valley Office Park

Warren, NJ 07059-0000

Counsel for Valerie White, et al.
3

(Filed: July 28, 2008)

 

OPINION OF THE COURT

 

SMITH, Circuit Judge.

In this appeal, we consider whether a federal district

court properly relied on Federal Rule of Civil Procedure

60(b)(6) to vacate a default judgment entered by another district

court. We conclude that it did not, and we will remand so that

it may consider whether to set aside the default judgment under

Federal Rule of Civil Procedure 60(b)(4).

I.

Budget Blinds, Inc. (“BBI”) is a California corporation

that franchises mobile window covering businesses throughout

the United States. According to an affidavit that BBI’s Chief

Operating Officer filed with the District Court for the Central

District of California, BBI was founded in 1992 and had about

800 territories and 570 licensees nationwide as of October 17,

2005, the date of the affidavit. BBI owns and licenses two

trademarks that it has registered with the Principal Register of

the United States Patent and Trademark Office: (1) the name

“Budget Blinds” (registered on December 21, 1993); and (2) a
4

service mark consisting of the words “Budget Blinds” in a

specific font and configuration (registered on February 18,

2003). 

Valerie White owns a New Jersey corporation called “Val

U Blinds, Inc.” that focuses on the design and installation of

window blinds. According to an affidavit that White filed with

the District Court for the District of New Jersey, she operates

this business from a home office in her basement and garage,

and her sales are limited to areas of New Jersey. The affidavit

further states that she conducted business from 1988 to June 1,

2004 as “Budget Blinds” or “Budget Blinds of NJ,” and that she

registered her business as a New Jersey domestic corporation in

September 1997 under the name “Budget Blinds of NJ, Inc.”

She changed her business’s name to “Val U Blinds” pursuant to

the Settlement Agreement that we describe below.

In a letter to Valerie White dated November 25, 2003,

BBI’s Legal Manager stated that White’s use of the name

“Budget Blinds” was a violation of BBI’s “federal, state, and

common law trademark rights” and was likely to cause public

confusion about the origin of White’s goods. White’s attorney

Ronald J. Nelson responded in a letter dated December 1, 2003

that White had used the name “Budget Blinds” since 1988, prior

to BBI’s first use of the name. Nelson’s letter added that White

had established “Budget Blinds” as a common law trademark in

the New Jersey counties served by her business and that BBI’s

franchisees in this area were infringing her rights by using the
5

name. In a letter to Nelson dated February 12, 2004, BBI’s

counsel questioned the existence of a common law trademark

and stated that “BBI is prepared to bring a lawsuit in California

pursuant to the Lanham Act to enjoin your client’s infringing

activities” if the parties could not reach a mutually-agreeable

resolution. 

After several additional communications, the parties

entered a Settlement Agreement on April 14, 2004. Under the

Agreement, BBI would pay White and Budget Blinds of NJ, Inc.

(referred to as “the Corporation” in the Agreement) $160,000

“for the purchase and transfer of any and all interest, claim, or

ownership in or relating to the trade name and service mark

‘Budget Blinds’” and any confusingly similar names or marks.

Section 4 of the Agreement provided that after June 1, 2004,

White and the Corporation “shall not operate or do business”

under the trade name and service mark “Budget Blinds” “or any

other name or in any manner that might tend to give the general

public the impression that White [or her business] is in any way

associated or affiliated with BBI, or any of the businesses

conducted by it or other franchisees or licensees of the Marks.”

Among other things, Section 4 required White to change her

existing corporation’s name from “Budget Blinds of New

Jersey, Inc.” to “BB of NJ, Inc.,” to conduct all future business

using a new corporation to be established under the name “Val

U Blinds, Inc.,” and to remove the “Budget Blinds” trade name

and mark, as well as confusingly similar names or marks, from

her company’s advertising, signs, letterheads, stationery, printed
 The Agreement refers to these listings as “advertisements,” 1

a term whose connotations may be misleading. According to the

Agreement itself, the “advertisements” consisted simply of her

company’s name and phone number in an alphabetical list with

other companies’ names and numbers.

6

matter, and other forms. Most importantly for purposes of this

litigation, Section 4(f) of the Agreement also instructed White

to take specific steps to disassociate her company’s telephone

number from the name “Budget Blinds.” At the time of the

Agreement, the Yellow Pages directories for Burlington,

Gloucester, and Camden Counties listed a phone number for

White’s company next to the name “Budget Blinds.” To 1

address this situation, Section 4(f) of the Agreement provided in

relevant part:

Promptly after execution of this Agreement,

White, the Corporation and Val-U Blinds shall

direct Verizon . . . in writing, with a copy to

counsel for BBI . . . , (i) that all of the said three

advertisements shall not be renewed in the said

three county editions, or elsewhere; and (ii) that

customers calling directory assistance in any of

those three counties (or anywhere else) on or after

June 1, 2004, should no longer be given [the

phone number for White’s company] or any other

number related to or affiliated with White, the

Corporation, or Val-U Blinds in response to an

inquiry for the telephone number of “Budget
7

Blinds.” From time-to-time thereafter, upon the

reasonable request of BBI, White, the Corporation

and Val-U Blinds shall provide similar written

directions to other directory publishers (including

publishers of Internet-based “directories”)

identified by BBI. 

In addition to these substantive provisions, the Agreement stated

that White and her corporations “hereby irrevocably appoint

BBI as their respective lawful attorney-in-fact with authority to

file any document in the name of and on behalf of White, the

Corporation or Val-U Blinds for the purpose of taking any of the

actions required by this Section 4 upon the event of a Default.”

Finally, the Agreement contained a choice-of-law clause: “This

Settlement Agreement will be governed by and construed under

the laws of the State of California.” 

White says that she made a good-faith effort to comply

with her obligations under the Agreement, including those in

Section 4(f) related to her telephone number. The record

contains a letter dated May 5, 2004 from White’s attorney to

Verizon Customer Service directing Verizon “not to renew or

republish their existing advertisements in all Yellow Pages

(including Burlington, Gloucester, Camden and Middlesex

County editions) in which they have used the phrase ‘Budget

Blinds’ in whole or in part.” The letter also directs Verizon “to

instruct Directory Assistance, beginning June 1, 2004, to answer

all inquiries for ‘Budget Blinds’ by not providing the telephone

numbers of my client . . . .” The record includes similar letters

addressed to YellowPages.com and Verizon.com, both of which

are dated June 4, 2004. 
 The Complaint does not reflect the fact that White had 2

already changed the name from “Budget Blinds of NJ, Inc.” to

8

Nonetheless, Verizon reprinted the listing that provided

the phone number for White’s company under the name “Budget

Blinds” in the updated print editions of its Yellow Pages

directories for Burlington, Gloucester, and Camden Counties

and the corresponding online directories. In a letter dated

February 1, 2005, BBI’s counsel informed White’s counsel that

the continuing existence of these listings was a violation of the

Agreement, and that “it appears that the only way to remedy this

violation is for your client to assign to BBI or to a franchisee

designated by BBI” the telephone number for White’s company.

In response, White’s counsel proposed setting up a recording

that would give callers to this telephone number a choice

between connecting to White’s company or to the local BBI

franchisee. BBI rejected this proposal in a letter dated February

23, 2005, reiterating its demand that White assign the number to

BBI and stating that it would deem White and her company to

be in breach of the Agreement “as long as there is any

circumstance under which a person looking in a current

telephone book and calling a number listed under the name

‘Budget Blinds’ will reach your clients.” In a letter dated March

9, 2005, White’s counsel informed BBI that, although White

would do everything that she considered “reasonably possible to

mitigate fully the effects of the unauthorized re-printing,” she

would not surrender the phone number itself.

BBI filed a Complaint against White, Val U Blinds, Inc.,

and Budget Blinds of NJ, Inc. (“Defendants”), which was 2
“BB of NJ, Inc.”

 BBI’s Complaint does not explicitly demand that White 3

surrender the phone number to BBI or one of its franchisees.

Instead, it requests that White and her company be enjoined and

restrained from violating the Agreement, “which requires, in

summary, without limitation, that the Defendants discontinue

the use and/or display of the Budget Blinds Marks or similar

marks or trade names, in any manner whatsoever.”

9

docketed on April 7, 2005 in the United States District Court for

the Central District of California, Southern Division. The

Complaint lists eight causes of action: (1) breach of contract; (2)

specific performance; (3) federal trademark infringement; (4)

state trademark infringement; (5) federal false designation of

origin; (6) federal trademark dilution; (7) state trademark

dilution; and (8) violation of the California Unfair Competition

Act. As relief, BBI requested an injunction against further

violation of the agreement, actual and punitive damages, an 3

accounting of defendants’ profits, treble damages, costs of suit,

attorneys’ fees, and pre-judgment interest. The Complaint

asserts that venue is proper in the Central District of California

“because a substantial part of the events giving rise to Budget

Blinds’ claims occurred within this District in that the harm to

Budget Blinds has occurred in this district and the Defendants

have intentionally directed their actions toward Budget Blinds,

which is headquartered in this District.” The Defendants did not

file a response to the Complaint even though BBI sent them

notice of it. White’s counsel characterizes this as an intentional

decision, motivated in part by White’s limited resources, to
 This amount reflects $68,613.75 for treble damages and 4

$14,469.76 for attorneys’ fees and costs. BBI’s proposed order

requested $105,954.76 in monetary relief, which would have

reflected an additional $22,871.25 in compensatory damages,

but the California district court deleted this amount from the

final Order. 

10

ignore the Complaint on the ground that the California court

allegedly lacked personal jurisdiction over the Defendants. 

On October 7, 2005, the District Court for the Central

District of California entered a default judgment against the

Defendants, granting BBI the injunctive relief that it requested

in its Complaint and $83,083.51 in monetary relief. BBI 4

registered this default judgment in the District Court for the

District of New Jersey on November 22, 2005. On January 20,

2006, BBI gave the Defendants notice that it would file a motion

on February 14 in the District Court for the District of New

Jersey for an order directing the turnover of funds from White’s

checking account to BBI in the amount specified in the

judgment. On January 24, the Defendants gave notice that they

would file a cross-motion in the New Jersey District Court to

vacate the default judgment, and they filed a Brief in opposition

to the turnover motion and in support of the cross-motion. In

this Brief, the Defendants asserted that the default judgment

should be declared null and void because the California district

court had lacked personal jurisdiction over them. In support of

this Brief, White submitted an affidavit explaining inter alia that

neither she nor her company had ever physically entered

California, owned property in California, solicited business in
11

California, purchased or sold any goods in California, or even

maintained an internet website. Both the Brief and White’s

affidavit asserted that an earlier draft of the Agreement

contained a provision granting White’s consent to personal

jurisdiction in the Central District of California but that the

Defendants refused to allow inclusion of this provision in the

final Agreement. BBI filed a Memorandum of Law on January

31 opposing the Defendants’ cross-motion to vacate the default

judgment and arguing that the California court had personal

jurisdiction over the Defendants. 

On April 5, 2006, the District Court for the District of

New Jersey issued an Opinion and Order in response to the

parties’ motions. See Budget Blinds v. White, No. 05-mc-388,

2006 U.S. Dist. LEXIS 17207, 2006 WL 891187 (D.N.J. Apr.

5, 2006). Instead of resolving the personal jurisdiction issue, the

District Court vacated the default judgment under Federal Rule

of Civil Procedure 60(b)(6), which provides: “On motion and

just terms, the court may relieve a party or its legal

representative from a final judgment, order, or proceeding for

. . . any other reason that justifies relief.” To decide the Rule

60(b)(6) issue, the District Court employed a three-part test

derived from Harad v. Aetna Casualty & Surety Co., 839 F.2d

979 (3d Cir. 1988): “When determining whether to vacate a

default judgment, a court should consider the following factors:

(1) whether the defendant has a meritorious defense; (2) whether

culpable conduct of the defendant led to the default; and (3)

whether the plaintiff will be prejudiced.” Budget Blinds, 2006

U.S. Dist. LEXIS 17207, at *4 (citing Harad, 839 F.2d at 982).

First, the District Court found that the Defendants had an

“extremely” meritorious defense, stating: “The facts establish
12

that White fully complied with her obligations under the

settlement agreement and therefore the provision [in the

Agreement] staying all litigation is, most likely, still in effect.”

2006 U.S. Dist. LEXIS 17207, at *5. Second, the District Court

concluded that the culpability factor “arguably benefits either

party” because White had “more than a colorable argument that

the district court lacked personal jurisdiction” but it would have

been “prudent” for her to appear before the California court to

make this argument. Id. at *5–*6 & n.2. Third, the District

Court found that “BBI will suffer absolutely no prejudice should

the Court order vacatur.” Id. at *7. Weighing these three

factors, the District Court concluded that vacatur was

appropriate. Id. at *7–*8. 

Even though the briefs of both parties had focused on

personal jurisdiction, the New Jersey District Court did not

decide this issue, explaining in a footnote that “[t]he Court need

not pass on whether the California district court actually

possessed personal jurisdiction over White for purposes of a

Rule 60(b)(6) inquiry. It is enough to know that White

possessed more than a colorable argument that the district court

lacked personal jurisdiction.” Id. at *6 n.2. The District Court

did, however, “grant BBI’s reasonable legal fees and costs

associated with obtaining the default judgment and registering

the judgment in this Court,” in part because “a prudent attorney”

would have responded to BBI’s complaint despite his or her

belief that the California district court lacked personal

jurisdiction. Id. at *8. Accordingly, the District Court directed

BBI to submit, within 10 days of the Order, an affidavit setting

forth the details of the fees and costs expended.
13

On May 5, 2006, BBI filed a timely notice of appeal of

the portion of the District Court’s Order that vacated the

California default judgment. On June 29, 2006, the New Jersey

District Court stayed BBI’s application for fees and costs

pending resolution of this appeal. The District Court had

jurisdiction over the registration and enforcement of a foreign

judgment pursuant to 28 U.S.C. § 1963 (2000), and we have

jurisdiction over BBI’s appeal of a final order pursuant to 28

U.S.C. § 1291 (2000). The part of the District Court’s Order

vacating the default judgment is “final” within the meaning of

§ 1291, despite the fact that the amount of attorneys’ fees

remains unresolved. See Frangos v. Doering Equip. Corp., 860

F.2d 70, 72 (3d Cir. 1988) (citing Budinich v. Becton Dickinson,

486 U.S. 196, 199 (1988)). 

On May 17, 2006, the Defendants filed a notice of crossappeal of the part of the Order that awarded fees and costs to

BBI. Although neither party questioned the existence of

appellate jurisdiction over this portion of the Order, we note that

the District Court has not quantified the amount of attorneys’

fees, and “[i]t has long been the rule in this circuit that this court

lacks jurisdiction to examine the merits of an attorneys’ fee

award where the award has not been quantified.” Frangos, 860

F.2d at 72. We will vacate the award of fees and costs without

considering its merits. The District Court granted the award

under its “inherent power under Rule 60(b) to impose terms and

conditions upon the opening of a judgment.” 2006 U.S. Dist.

LEXIS 17207, at *8 (quoting Feliciano v. Reliant Tooling Co.,

691 F.2d 653, 657 (3d Cir. 1982)). By vacating the Order

opening the judgment, we vacate these conditions as well. 
 Our review is plenary when we review determinations 5

under Rule 60(b)(4). See Page v. Schweiker, 786 F.2d 150, 152

(3d Cir. 1986). 

14

III.

Federal Rule of Civil Procedure 55(c) states that a court

“may set aside a default judgment under Rule 60(b).” Rule

60(b) lists six reasons for which a “court may relieve a party or

its legal representative from a final judgment, order, or

proceeding,” including the catch-all provision in Rule 60(b)(6)

that allows a court to relieve a party from a judgment for “any

other reason that justifies relief” aside from the more specific

circumstances described in Rules 60(b)(1)–(5). We review

grants or denials of relief under Rule 60(b), aside from those

raised under Rule 60(b)(4), under an abuse of discretion 5

standard. See Harris v. Martin, 834 F.2d 361, 364 (3d Cir.

1987). 

The power of a court to invoke Rule 60(b) to vacate its

own earlier judgment is unquestioned. As we discuss below,

however, it is unclear whether a court has the power to invoke

Rule 60(b) to vacate a judgment when the court in which the

judgment is registered (the “registering court”) is different from

the court that entered the judgment (the “rendering court”).

Nothing in the text of Rule 55(c) or Rule 60(b) suggests that a

registering court lacks the power to vacate the judgment of a

different rendering court, but as we discuss below, several

courts have suggested otherwise. 
15

We decline to establish a categorical rule stating that

registering courts lack the power to use Rule 60(b)(6) to vacate

the judgments of rendering courts, but we emphasize that

registering courts should exercise this power only under very

limited circumstances. Even when a court is considering its own

judgment, “extraordinary circumstances” must be present to

justify the use of the Rule 60(b)(6) catch-all provision to vacate

the judgment. See, e.g., Gonzalez v. Crosby, 545 U.S. 524,

535–36 (2005) (citing Ackermann v. United States, 340 U.S.

193, 199 (1950)). When a court is considering whether to

vacate another court’s judgment under Rule 60(b)(6), these

circumstances must be even more “extraordinary” because of the

additional interest in comity among the federal district courts.

We need not decide exactly how “extraordinary” a circumstance

must be to justify the vacatur of another court’s judgment. The

circumstances of the instant case would not even be

extraordinary enough to justify a court’s decision to vacate its

own judgment. It follows, a fortiori, that they are not

extraordinary enough to justify vacating the judgment of another

court. 

A.

Several circuits have either held, or stated in dicta, that

the power of a federal district court to set aside another district

court’s judgment is limited. 

In Indian Head National Bank v. Brunelle, 689 F.2d 245

(1st Cir. 1982), the First Circuit held that “a registration court

errs in entertaining a Rule 60(b) motion that alleges neither a

judgment void for lack of personal jurisdiction nor grounds that
 The First Circuit pointed to the following language in the 6

advisory committee notes to the 1946 amendment that created

Rule 60(b):

Two types of procedure to obtain relief from judgments

are specified in the rules as it is proposed to amend them.

One procedure is by motion in the court and in the action

in which the judgment was rendered. The other

procedure is by a new or independent action to obtain

relief from a judgment, which action may or may not be

begun in the court which rendered the judgment. 

16

would support an independent equitable action.” Id. at 251–52.

In Indian Head, the District Court for the Eastern District of

Pennsylvania rendered a default judgment against the defendant,

Conproco Corporation. Id. at 247. The plaintiff registered the

judgment in the District Court for the District of New

Hampshire pursuant to 28 U.S.C. § 1963, and attempted to

attach Conproco’s New Hampshire’s bank account. Id. Instead

of directly appealing the judgment or moving in the rendering

court to set it aside, Conproco moved in the District of New

Hampshire to set aside the judgment under Rule 60(b)(1) and

Rule 60(b)(6), claiming that “the default judgment was due to

inadvertence and neglect.” Id. at 247–48. The New Hampshire

district court granted Conproco’s motion after finding that

Conproco had a valid defense and that the default judgment was

not the fault of Conproco or its counsel. Id. at 248. The First

Circuit reversed, explaining that “there are indications that the

drafters of the Rule intended to restrict motion practice under

60(b) to the court which rendered judgment,” and that 6
689 F.2d at 248 (citing FED. R. CIV. P. 60 advisory committee

note). The First Circuit explained that the “other procedure” is

a reference to language that now appears under Rule 60(d):

“This rule does not limit a court’s power to: (1) entertain an

independent action to relieve a party from a judgment, order, or

proceeding; (2) grant relief under 28 U.S.C. § 1655 to a

defendant who was not personally notified of the action; or (3)

set aside a judgment for fraud on the court.” 689 F.2d at 248–49

& n.7. These actions had been available in both the rendering

court and other courts even before the Rule’s enactment. Id.

According to the First Circuit, the first of the two “types of

procedure” is a reference to Rule 60(b) motion practice, and the

committee’s language reflects its understanding that this

procedure would be limited to the rendering court. See id.

17

deference to the rendering court promotes comity among federal

courts, efficient judicial administration (in light of the rendering

court’s familiarity with the issues), and simplified collection of

judgments. Id. The First Circuit said that a registering court

may grant Rule 60(b) relief from a different rendering court’s

judgment in only two situations: first, when the request for relief

is based on grounds that could also support an independent

equitable action, id. at 249–50 & n.8, and second, when a

request for relief from a default judgment is made under Rule

60(b)(4), id. at 250–51. Conproco’s request for relief did not fit

into these categories, so the First Circuit reversed the judgment

of the district court granting the relief. Id. at 252. 

The Seventh Circuit went further in Board of Trustees v.

Elite Erectors, Inc., 212 F.3d 1031 (7th Cir. 2000), concluding
Despite this conclusion, the Seventh Circuit did not 7

explicitly overrule its earlier decision in In re Joint Eastern &

Southern District Asbestos Litigation, 22 F.3d 755 (7th Cir.

1994), which said: “We note that the authority of the registration

court to entertain a motion under Rule 60(b)(4) appears to be

well established.” Id. at 762 n.15. 

18

that a rendering district court may not “modify or annul” the

judgment of another district court under any provision of Rule

60(b), including Rule 60(b)(4). Id. at 1034. Elite Erectors

involved a default judgment rendered in the District Court for

the Eastern District of Virginia that the plaintiffs sought to

enforce in the District Court for the Southern District of Indiana.

Id. at 1033. The defendants moved in the Indiana district court

to annul the judgment under Rule 60(b)(4) on the ground that

the rendering court lacked personal jurisdiction over them. Id.

The Seventh Circuit held that any request to annul or modify a

judgment under Rule 60(b) “must be presented to the rendering

court.” Id. It proceeded to explain that the parties against

whom the Virginia district court entered judgment “are entitled

to resist enforcement in Indiana if, but only if, the United States

District Court for the Eastern District of Virginia lacked

personal or subject-matter jurisdiction.” Id. at 1035. But the

Seventh Circuit indicated that “resisting enforcement” of the

judgment in Indiana was not the same as “formally annulling it

under Rule 60(b)(4).” Id. at 1034. The difference is that 7

annulling the judgment would deprive it of its effect in all

forums, including the rendering court, whereas successfully

resisting the judgment’s enforcement would deprive it of its

effect only in the Indiana district court. Id.
19

Several other circuits have suggested in dicta that Rule

60(b) motions should generally be made before the rendering

court, but they have not adopted a rigid requirement. In

Covington Industries, Inc. v. Resintex A.G., 629 F.2d 730 (2d

Cir. 1980), the Second Circuit held that a registering court could

invoke Rule 60(b)(4) to vacate a rendering court’s judgment for

lack of jurisdiction, but it suggested that registering courts

should be more restrained when applying other sections of Rule

60(b). See 629 F.2d at 733 (“In the usual case, the court of

rendition will be more familiar with the facts than the court of

registration and perhaps more conversant with the applicable

law.”). In Morris ex rel. Rector v. Peterson, 871 F.2d 948 (10th

Cir. 1989), the Tenth Circuit cited Indian Head for “the general

rule that a registration court . . . usually defers on Rule 60(b)

motions to the court rendering the judgment . . . ,” but then

applied Indian Head’s exception for Rule 60(b)(4) motions.

Peterson, 871 F.2d at 950–51 & n.2 (citing Indian Head, 689

F.2d at 249, 251–52). In Harper Macleod Solicitors v. Keaty &

Keaty, 260 F.3d 389 (5th Cir. 2001), the Fifth Circuit held that

a registering court may invoke Rule 60(b)(4) to vacate a

rendering court’s judgment but expressed doubt in dicta that a

registering court could do the same with other sections of Rule

60(b). See id. at 395 (“judicial efficiency and comity among

district courts often counsel a registering court to defer ruling on

Rule 60(b) motions in favor of the rendering court . . . .”). In

FDIC v. Aaronian, 93 F.3d 636 (9th Cir. 1996), the Ninth

Circuit said that “[r]egistering courts generally prefer litigants

to bring motions for postjudgment relief in the rendering court,”

but it concluded that it was proper for a registering court to

entertain a challenge to a rendering court’s judgment on the

ground that the judgment was unconstitutional and therefore
 In an earlier decision, the Ninth Circuit indicated that at 8

least some Rule 60(b) motions must be brought in the rendering

court. In First Beverages, Inc. v. Royal Crown Cola Co., 612

F.2d 1164 (9th Cir. 1980), the Ninth Circuit said: “The proper

approach to seeking relief from judgment because of a change

in the factual circumstances surrounding this case would be to

make a Rule 60(b) motion or a motion to reopen to hear

additional proof. Such motions must be directed in the first

instance to the district court.” Id. at 1172. Aaronian does not

cite First Beverages. 

 We do not consider in this opinion whether a registering 9

court ever has the power to set aside judgments under Rules

60(b)(1), (2), (3), or (5). 

20

void. Id. at 649. 8

We are persuaded by the reasoning of the First, Second,

Fifth, Seventh, Ninth, and Tenth Circuits to the extent that they

conclude that Rule 60(b) motions (other than motions under

Rule 60(b)(4)) should generally be raised in the rendering court.

Nonetheless, we decline to hold that registering courts lack the

power in all situations to invoke Rule 60(b)(6) to set aside

judgments. Rule 60(b)(6) exists so that courts may “vacate 9

judgments whenever such action is appropriate to accomplish

justice,” Klapprott v. United States, 335 U.S. 601, 614 (1949),

in situations that are not addressed by the other five clauses of

Rule 60(b). The drafters of Rule 60(b)(6) apparently recognized

that a catch-all provision would be necessary, since it would be

impossible to specify all of the scenarios in which justice might
We also do not think that the language of the advisory 10

committee, as discussed in Indian Head, 689 F.2d at 248,

requires such a rule. The words of the advisory committee are

not as important as the text of the Rule, which imposes no

limitations on a court’s ability to set aside another court’s

judgment. Moreover, we note that even though the First Circuit

afforded weight to the advisory committee’s language, it did not

follow it literally, since Indian Head acknowledged that a court

may use Rule 60(b)(4) to vacate the judgment of another court

that lacked personal jurisdiction. See id. at 250–51.

 When the judgment is not a default judgment, an additional 11

interest exists: efficient judicial administration resulting from

the rendering court’s greater familiarity with the facts. See

Indian Head, 689 F.2d at 248. With a default judgment,

however, the rendering court is unlikely to have any greater

knowledge of the facts than the registering court. See On Track

Transp. v. Lakeside Warehouse & Trucking, 245 F.R.D. 213,

221 (E.D. Pa. 2007). 

21

require vacatur of a judgment. Given the catch-all nature of

Rule 60(b)(6), we do not think that it would be wise to adopt a

rule that categorically forbids district courts from vacating the

judgments of other district courts under this provision.10

Although the interest in comity will usually make it 11

inadvisable for a registering court to vacate a rendering court’s

judgment, we cannot rule out the possibility that some set of

facts will cause the injustice of enforcing a rendering court’s

judgment to be so great as to outweigh the damage that setting
 Any such set of facts would probably be sufficient to form 12

the basis of an “independent equitable action” within the

meaning of the exception that the First Circuit described in

Indian Head. See 689 F.2d at 249 & n.8. We need not decide

here whether it is possible for a court to be confronted with a set

of facts that could not support an independent equitable action

but could nonetheless justify vacating another court's judgment

under Rule 60(b)(6). 

 Our circuit uses the terms “extraordinary circumstances” 13

and “exceptional circumstances” interchangeably when

discussing Rule 60(b)(6). See, e.g., Lasky v. Continental Prods.

Corp., 804 F.2d 250, 252 (3d Cir. 1986) (using both terms in the

same paragraph); Boughner v. Sec’y of Health, Educ. & Welfare,

572 F.2d 976, 978 (3d Cir. 1978) (concluding that “the

circumstances here are sufficiently exceptional and

22

aside the judgment would inflict upon comity. We need not 12

decide here what facts would be sufficient, however, because it

is clear that the facts of the instant case fall far short of what is

necessary to justify vacatur of a rendering court’s judgment

under Rule 60(b)(6).

B.

Although the text of Rule 60(b)(6) states simply that a

court may grant relief from a final judgment for “any other

reason that justifiesrelief,” courts have added a requirement that

a party seeking Rule 60(b)(6) relief must demonstrate the

existence of “extraordinary circumstances” that justify 13
extraordinary so as to mandate relief pursuant to Rule

60(b)(6) . . . .”). 

23

reopening the judgment. See, e.g., Crosby, 545 U.S. at 535–36

(citing Ackermann, 340 U.S. at 199); Coltec Indus. v. Hobgood,

280 F.3d 262, 273 (3d Cir. 2002) (quoting In re Fine Paper

Antitrust Litig., 840 F.2d 188, 194 (3d Cir. 1988)). This

requirement exists in order to balance the broad language of

Rule 60(b)(6), which allows courts to set aside judgments for

“any” reason justifying relief, with the interest in the finality of

judgments. See In re Fine Paper Antitrust Litig., 840 F.2d at

194–95; Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir.

1977). As we explained above, when a registering court

considers the judgment of a different district court, the use of

Rule 60(b)(6) to vacate another court’s judgment implicates an

additional interest in comity, even if the judgment was a default

judgment. If the circumstances of a case are not sufficiently

“extraordinary” to outweigh the interest in the finality of

judgments, then it follows that the circumstances cannot

outweigh the interest in finality combined with the interest in

comity. 

We have explained that a showing of extraordinary

circumstances involves a showing that without relief from the

judgment, “an ‘extreme’ and ‘unexpected’ hardship will result.”

Mayberry, 558 F.2d at 1163. This “hardship” requirement may

sometimes be satisfied when the judgment “precluded an

adjudication on the merits.” Boughner v. Sec’y of Health, Educ.

& Welfare, 572 F.2d 976, 978 (3d Cir. 1978). But extraordinary

circumstances rarely exist when a party seeks relief from a
 In Boughner, we invoked Rule 60(b)(6) to relieve 14

appellants of an adverse judgment resulting from the intentional

acts of their attorney. 572 F.2d at 979. But we only did so after

finding that the attorney’s “egregious conduct amounted to

nothing short of leaving his clients unrepresented.” Id. at 977.

Given this factual setting, we held that “appellants are not bound

by the acts of their attorney for the purposes of the rule.” Id. at

978.

24

judgment that resulted from the party’s deliberate choices.14

See, e.g., Coltec, 280 F.3d at 274 (“[C]ourts have not looked

favorably on the entreaties of parties trying to escape the

consequences of their own ‘counseled and knowledgeable’

decisions.”); see also Ackermann, 340 U.S. at 198–99 (petitioner

could not show the existence of extraordinary circumstances

when he voluntarily chose not to appeal due to the modest

expenses that an appeal would require).

In the instant case, the New Jersey District Court did not

mention the “extraordinary circumstances” requirement in its

opinion. We acknowledge that our decision in Harad may have

contributed to this error by sending confusing signals to the

District Court regarding the standards for vacating a default

judgment. In Harad, we reversed the district court’s decision

not to vacate its own earlier default judgment. 839 F.2d at 985.

We stated that “the decision to vacate a default judgment is left

to the sound discretion of the trial court,” but that “[i]n

exercising this discretion . . . the court must consider whether

vacating the default judgment will visit prejudice on the

plaintiff, whether the defendant has a meritorious defense, and
25

whether the default was the result of the defendant’s culpable

conduct.” Id. at 982. Harad makes no reference to any clause

in Rule 60(b), nor does it consider whether “extraordinary

circumstances” were present. Thus, Harad may have created

the erroneous impression that an exception to the “extraordinary

circumstances” requirement exists when a district court is

considering whether to vacate a default judgment, as opposed to

a judgment on the merits. 

A closer look at Harad reveals that its test was not

intended to apply to Rule 60(b)(6). Harad involved a complaint

filed by an attorney (Charles Harad) and one of his insurance

companies (Home), against another of his insurance companies

(Aetna), seeking a declaratory judgment that Aetna had a duty

to defend and indemnify Harad. 839 F.2d at 981. On December

23, 1986, Harad and Home served the complaint on Aetna at its

Hartford office rather than the Philadelphia office with which

they had negotiated previously. Id. The Hartford office

forwarded the complaint to the Philadelphia office, and Aetna

entered an appearance with the District Court for the Eastern

District of Pennsylvania on January 9, 1987, the same day that

Harad and Home filed a request for a default judgment. The

district court docketed the default judgment request on January

12 and the entry of appearance on January 14, and then granted

the request for default judgment on January 14. Id. Aetna

moved to vacate the default judgment, and the parties stipulated

that the sole issue to be addressed on the motion was whether

Aetna had established a meritorious defense to the plaintiffs’

action. Id. The district court then declined to vacate the default

judgment, but we reversed, concluding that Aetna had a

meritorious defense. Id. at 985. Although neither the district
 $55,518.05 in U.S. Currency cited three cases as its 15

authority for this test. 728 F.2d at 195. First, it cites Gross v.

26

court’s opinion, see Harad v. Aetna Cas. & Sur. Co., No. 86-cv7266, 1987 WL 12290 (E.D. Pa. June 9, 1987), nor our opinion

cited any Federal Rule of Civil Procedure, we see at least two

reasons for construing Harad as a grant of relief under Rule

60(b)(1), which allows relief from a judgment on the basis of

“mistake, inadvertence, surprise, or excusable neglect,” rather

than Rule 60(b)(6). First, the facts of the case, with the

complaint sent to the wrong office and the apparent delay in

docketing the entry of appearance, suggest that this was a matter

of “mistake, inadvertence, surprise, or excusable neglect.”

Second, Harad obtains its three-part test directly from United

States v. $55,518.05 in U.S. Currency, 728 F.2d 192 (3d Cir.

1984), a case that addresses Rule 60(b)(1). See Harad, 839 F.2d

at 982 (citing $55,518.05 in U.S. Currency, 728 F.2d at 195). In

$55,518.05 in U.S. Currency, we said: 

We require the district court to consider the

following factors in exercising its discretion in

granting or denying a motion to set aside a default

under Rule 55(c) or a default judgment under

Rule 60(b)(1): (1) whether the plaintiff will be

prejudiced; (2) whether the defendant has a

meritorious defense; (3) whether the default was

the result of the defendant’s culpable conduct.

$55,518.05 in U.S. Currency, 728 F.2d at 195 (emphasis

added). Accordingly, we conclude that the District Court erred 15
Stereo Component Systems, Inc., 700 F.2d 120 (3d Cir. 1983),

a case applying Rule 60(b)(1). See 700 F.2d at 121–22 & n.1.

Second, it cites Feliciano v. Reliant Tooling Co., 691 F.2d 653

(3d Cir. 1982). Feliciano applies Rule 60(b) as a whole and

expressly declines to choose between Rule 60(b)(1) and Rule

60(b)(6) as its basis for relief. See Feliciano, 691 F.2d at 656.

Although Feliciano suggests that the three-part test might apply

to Rule 60(b)(6), it does not make this a part of its holding.

Thus, we do not think that Feliciano stands for the proposition

that the three-part test is sufficient to guide a Rule 60(b)(6)

inquiry. Third, $55,518.05 in U.S. Currency cites Farnese v.

Bagnasco, 687 F.2d 761 (3d Cir. 1982). Farnese is concerned

with whether to set aside an “entry of default” as opposed to a

“default judgment.” See Farnese v. Bagnasco, 687 F.2d at

763–64 (citing FED. R. CIV. P. 55(c) (stating that a court may set

aside an entry of default “for good cause”)).

27

by relying solely on the three factors listed in Harad to grant

relief under Rule 60(b)(6).

Appellees assert that Emcasco Insurance Co. v.

Sambrick, 834 F.2d 71 (3d Cir. 1987), provides the appropriate

factors for deciding whether to set aside a default judgment. In

Emcasco, we applied the same three factors that we used in

Harad, plus a fourth—“the effectiveness of alternative

sanctions.” Id. at 73. Emcasco does not cite Rule 60(b) in its

review of the district court’s decision not to vacate a default

judgment. As with Harad, however, we construe Emcasco as

describing a standard for vacating a default judgment under

Rule 60(b)(1), not Rule 60(b)(6). First, we think that the default
 Emcasco involved a suit by an insurance company 16

(EMCASCO) against an insured (Louis Sambrick) for a

declaratory judgment stating that the insurance policy did not

cover personal injuries that Sambrick had allegedly inflicted on

two other people. 834 F.2d at 72. EMCASCO served Sambrick

with its complaint on December 2, 1986, but Sambrick, who was

not represented by counsel, did not file a timely answer. Id. at

72–73. On December 31, EMCASCO served the stillunrepresented Sambrick with an affidavit requesting default

judgment. Id. at 73. After Sambrick retained counsel, the

district court held a telephone conference with EMCASCO on

January 14, 1987, but neither Sambrick nor his counsel

participated in it, apparently because they were not notified. Id.

During the telephone conference, the district court told

EMCASCO that it would enter a default judgment unless

Sambrick filed an answer by January 16. Id. Sambrick and his

counsel were not told of this arrangement, but instead were led

to understand that they could avoid a default judgment if

Sambrick’s counsel entered an appearance, which Sambrick’s

counsel did on January 15. Id. On January 16, the district court

entered a default judgment against Sambrick. Id. The district

court subsequently rejected Sambrick’s motion to set aside the

default judgment. Id. 

28

judgment in Emcasco could be fairly described as the product of

“mistake, inadvertence, surprise, or excusable neglect.” The 16

Emcasco district court decided on January 14, 1987 that it would

enter a default judgment against the defendant unless he filed an

answer by January 16. 834 F.2d at 75. But the defendant and

his counsel were never informed of this decision and instead
In support of its four-factor test, Emcasco cites nine cases. 17

See 834 F.2d at 73–74 (citing Zawadski De Bueno v. Bueno

Castro, 822 F.2d 416, 419–20 (3d Cir. 1987); Scarborough v.

Eubanks, 747 F.2d 871, 875–78 (3d Cir. 1984); Hritz v. Woma

Corp., 732 F.2d 1178, 1181 (3d Cir. 1984); $55,518.05 in U.S.

Currency, 728 F.2d at 194–95; In re MacMeekin, 722 F.2d 32,

35 (3d Cir. 1983); Gross, 700 F.2d at 122; Feliciano, 691 F.2d

at 656; Farnese, 687 F.2d at 764; Donnelly v. Johns-Manville

Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982)). We have

already discussed $55,518.05 in U.S. Currency, Gross,

Feliciano, and Farnese. See supra note 15. Zawadski is

expressly based on the “excusable neglect” factor of Rule

60(b)(1). 822 F.2d at 417–18 & n.1. Our opinion in Hritz refers

to Rule 60(b) as a whole rather than any of the six clauses. See

Hritz, 732 F.3d at 1182 n.3; see also id. at 1186 n.1 (Garth, J.,

concurring). The district court’s opinion in Hritz, however,

makes clear that the order being appealed was based on Rule

60(b)(1). See Hritz v. Woma Corp., 92 F.R.D. 364, 366

(W.D. Pa. 1981). Scarborough and Donnelly are direct appeals

of grants of dismissal under Rule 41, not appeals of a decision

granting or denying a motion to set aside a previously-entered

default judgment. Scarborough, 747 F.2d at 874–75; Donnelly,

677 F.2d 340–41. Similarly, MacMeekin is a direct appeal of a

29

were erroneously told that they could avert a default judgment

merely by entering an appearance, which they did on January 15.

Id. Given these facts, Emcasco was in effect a Rule 60(b)(1)

case. Second, most of the cases that Emcasco cites in support of

its four-part test are applications of Rule 60(b)(1). See 834 F.2d

at 73–74. Thus, Emcasco does not provide a test that is 17
dismissal under Rule 37. 722 F.2d at 34–36. 

30

applicable to a Rule 60(b)(6) motion.

We acknowledge that default judgments are generally

disfavored in our circuit. See $55,518.05 in U.S. Currency, 728

F.2d at 194–95 (“[T]his court does not favor entry of defaults or

default judgments. We require doubtful cases to be resolved in

favor of the party moving to set aside the default judgment ‘so

that cases may be decided on their merits.’” (quoting Tozer v.

Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir.

1951))). But we cannot apply this presumption against default

judgments if doing so would be inconsistent with the Federal

Rules of Civil Procedure or our case law interpreting these

Rules. Because “extraordinary circumstances” are essential for

a grant of Rule 60(b)(6) relief, a case does not become

“doubtful” when the district court has made no attempt to show

that such circumstances exist. 

Finally, our own review of the record does not suggest

that the circumstances of this case are “extraordinary” as we

have defined this term in our case law. The Defendants

acknowledge that their decision not to contest the California

judgment was the result of a deliberate choice. Thus, the default

judgment cannot be said to have created an “unexpected

hardship.” Cf. Boughner, 572 F.2d at 978. Since nothing else

in the record appears to qualify as an “extraordinary

circumstance” sufficient to justify setting aside any judgment,

let alone one entered by a different court, we will vacate the

District Court’s Order setting aside the default judgment. 
 In In re Universal Display & Sign Co., 541 F.2d 142 (3d 18

Cir. 1976), we allowed a registering court to consider a Rule

60(b)(4) motion, but we noted that the party seeking to enforce

the judgment had not objected to the registering court’s power

to do so. Id. at 143 n.6.

31

IV.

We next confront a question that parallels the one we

addressed about Rule 60(b)(6): does a federal district court have

the power to consider a motion to vacate another district court’s

judgment under Rule 60(b)(4) on the ground that the latter court

lacked personal jurisdiction over the defendant? Neither party

has contended that the District Court lacks this power.

Nevertheless, we will explain why we hold that this power

exists. 

Rule 60(b)(4) allows a court to relieve a party from a

final judgment if “the judgment is void.” A judgment is void

within the meaning of Rule 60(b)(4) if the court that rendered it

lacked personal jurisdiction over the defendant. See Marshall

v. Bd. of Educ., 575 F.2d 417, 422 (3d Cir. 1978). Although

there is no question that a court may grant a Rule 60(b)(4)

motion to vacate one of its own judgments, we have not

explicitly ruled on whether a court has the power to grant a Rule

60(b)(4) motion to vacate another court’s judgment for lack of

personal jurisdiction.18

Five circuits have stated either in holdings or dicta that a

registering court has the power to hear a Rule 60(b)(4) motion.
32

Three of these circuits explicitly held that a registering court

may vacate a default judgment of a rendering court when the

rendering court lacked personal jurisdiction over the defendant.

Covington, 629 F.2d at 732–34 (Second Circuit); Harper

Macleod, 260 F.3d at 394–95 (Fifth Circuit); Peterson, 871 F.2d

at 951 & n.2 (Tenth Circuit). The First Circuit endorsed the

view of these circuits in dicta, recognizing that Rule 60(b)(4)

challenges to default judgments are one of the two exceptions to

the general rule that Rule 60(b) motions must be addressed to

the rendering court. See Indian Head, 689 F.2d at 250–51. The

Ninth Circuit endorsed a registering court’s power to vacate a

rendering court’s judgment under Rule 60(b)(4), but its holding

addressed a Rule 60(b)(4) motion based on a challenge to the

constitutionality of the rendering court’s judgment rather than

the rendering court’s personal jurisdiction. 93 F.3d at 639–40.

We note that the Eastern District of Pennsylvania has produced

a thorough and well-reasoned opinion in On Track

Transportation, Inc. v. Lakeside Warehouse & Trucking, Inc.,

245 F.R.D. 213 (E.D. Pa. 2007), in which it held that a

registering court has the power to decide a Rule 60(b)(4) motion

challenging a rendering court’s default judgment for lack of

subject matter jurisdiction. Id. at 214–23. 

The Seventh Circuit is an outlier on this issue. As we

discussed above, the Seventh Circuit concluded in Elite Erectors

that the registering court “was free to disregard the judgment,

without formally annulling it under Rule 60(b)(4), if the

rendering court lacked [personal or subject-matter] jurisdiction.”

212 F.3d at 1034–35. Because the registering court cannot

annul the judgment under Rule 60(b)(4), the most it can do is

decline to enforce the judgment—while leaving the judgment in
33

place so that other jurisdictions can enforce it. See id. As the

Eastern District of Pennsylvania noted in On Track, this is an

“impracticable” solution. See 245 F.R.D. at 219–20. If the

rendering court merely issued a default judgment, then it never

actually litigated the issue of personal jurisdiction. In contrast,

the registering court will have actually litigated the issue. Thus,

the registering court’s judgment will have preclusive effect, and

a defendant “could then move the rendering court to vacate the

judgment on the basis that it lacked jurisdiction, using the

decision of the registering court offensively.” Id. This would

lead to the same result as vacating the judgment altogether,

except with one extra step, along with the expenditure of time

and resources that this step would entail. Id. at 220. We see no

reason to break with the majority of circuits and embrace the

cumbersome process endorsed by the Seventh Circuit. 

Finally, we do not think a registering court seriously

threatens the interest in comity when it vacates a rendering

court’s default judgment under Rule 60(b)(4) for lack of

personal jurisdiction. If the rendering court did not have

personal jurisdiction, then the judgment was not merely

erroneous; it never should have been entered in the first place.

Moreover, when the rendering court enters a default judgment

based on nothing but one party’s failure to appear, there is no

risk that the courts will reach opposite conclusions on personal

jurisdiction because the rendering court was not required to

address the issue. Finally, as the On Track court noted, comity

“must be balanced against the longstanding principle that ‘[a]

defendant is always free to ignore the judicial proceedings, risk

a default judgment, and then challenge that judgment on

jurisdictional grounds in a collateral proceeding.’” 245 F.R.D.
34

213, 221 (citing Ins. Corp. of Ir., Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 706 (1982)). The latter

principle would be undermined if we held that Rule 60(b)(4)

actions could only be brought in the rendering court that

allegedly lacked personal jurisdiction over the defendant. 

V.

We now reach the question that the parties originally

asked the District Court to address: whether the California

district court possessed personal jurisdiction over the

Defendants. We have the power to resolve this issue ourselves,

rather than remand it to the District Court, because we conduct

de novo review of jurisdictional issues raised under Rule

60(b)(4). See Page v. Schweiker, 786 F.2d 150, 152 (3d Cir.

1986). Both parties have informed us in their briefs and at oral

argument that they would prefer that we resolve the issue rather

than remand it. Unfortunately, we are unable to do so, because

we find that the existence of personal jurisdiction turns on

disputed questions of fact that should be resolved by a

factfinder. Therefore, we remand the matter to the District

Court, with the hope that the District Court will resolve this

matter as promptly and as inexpensively for the parties as

possible. Below we provide an overview of the personal

jurisdiction issues in this case, pointing out what we believe are

the key factual disputes. 

A. Personal Jurisdiction in California

“In a diversity action, [a California federal district court]

may exercise personal jurisdiction over a non-resident defendant
35

if jurisdiction is proper under California’s long-arm statute and

if that exercise of jurisdiction accords with federal constitutional

due process principles.” Fireman’s Fund Ins. Co. v. Nat’l Bank

of Coops., 103 F.3d 888, 893 (9th Cir. 1996). California’s longarm statute provides simply that the court may exercise personal

jurisdiction “over a non-resident defendant on any basis not

inconsistent with the California or federal Constitution.” Id.

(citing CAL. CODE CIV. PROC. § 410.10). “The statutory and

constitutional requirements therefore merge into a single due

process test,” which requires that the defendant “have certain

minimum contacts with [the forum] such that the maintenance

of the suit does not offend traditional notions of fair play and

substantial justice.” Id. (citing Int’l Shoe Co. v. Washington,

326 U.S. 310, 316 (1945) (internal quotation omitted)). As both

parties acknowledge, we determine whether this requirement is

satisfied by applying a three-part test. The three-part test, as

summarized in Panavision International v. Toeppen, 141 F.3d

1316 (9th Cir. 1998), is as follows:

(1) The nonresident defendant must do some act

or consummate some transaction with the forum

or perform some act by which he purposefully

avails himself of the privilege of conducting

activities in the forum, thereby invoking the

benefits and protections of its laws; (2) the claim

must be one which arises out of or results from

the defendant’s forum-related activities; and (3)

exercise of jurisdiction must be reasonable.
 BBI argues only that “specific jurisdiction” exists and does 19

not seek to prove the existence of “general jurisdiction.”

36

141 F.3d at 1320 (citation omitted). BBI contends that all three

of these requirements were satisfied as a matter of law. 

19

B. Purposeful Availment

BBI asserts that White has purposefully availed herself

of the privilege of conducting activities in California and

thereby has invoked the benefits of California law. BBI bases

its argument on the Settlement Agreement as well as the

Defendants’ alleged trademark infringement. 

1. Purposeful Availment Through The Settlement Agreement

The mere existence of a contract is insufficient to

establish minimum contacts. Burger King Corp. v. Rudzewicz,

471 U.S. 462, 478 (1985) (“If the question is whether an

individual’s contract with an out-of-state party alone can

automatically establish sufficient minimum contacts in the other

party’s home forum, we believe the answer clearly is that it

cannot.”). But a contract is typically an intermediate step

between past negotiations and future transactions, and Burger

King instructs that “it is these factors— prior negotiations and

contemplated future consequences, along with the terms of the

contract and the parties’ actual course of dealing—that must be

evaluated in determining whether the defendant purposefully

established minimum contacts with the forum.” Id. at 479. BBI

argues that several aspects of the Settlement Agreement’s terms,
37

as well as prior negotiations and contemplated future

consequences, create minimum contacts. 

First, BBI points out that the Agreement contains a

choice-of-law clause stating that it “will be governed by and

construed under the laws of the State of California.” Br. of

Appellant 39. As Burger King points out, a choice-of-law

provision “standing alone would be insufficient to confer

jurisdiction,” but combined with other factors, it may reinforce

a party’s “deliberate affiliation with the forum State and the

reasonable foreseeability of possible litigation there.” 471 U.S.

at 482. We must therefore consider other factors before we can

decide how much weight to afford to this provision.

Second, BBI points out that the Defendants negotiated

the Settlement Agreement by telephone and mail with

California-based BBI and its attorneys. Br. of Appellant 40. 

Interpreting California law, the Ninth Circuit has said that,

ordinarily, use of the mails and telephone “simply do not qualify

as purposeful activity invoking the benefits and protection of the

[forum] state.” Roth v. Garcia Marquez, 942 F.2d 617, 622 (9th

Cir. 1991) (quoting Thos. P. Gonzalez Corp. v. Consejo

Nacional De Produccion De Costa Rica, 614 F.2d 1247, 1254

(9th Cir. 1980)). Moreover, an important distinction between

the negotiations in Burger King and those in the instant case is

that the Burger King defendant actively sought contract

negotiations with a company based in the forum state, whereas

White did not reach out to anyone in California until BBI

threatened litigation. See Burger King, 471 U.S. at 479

(“Eschewing the option of operating an independent local

enterprise, Rudzewicz deliberately ‘[reached] out beyond’
38

Michigan and negotiated with a Florida corporation for the

purchase of a long-term franchise and the manifold benefits that

would derive from affiliation with a nationwide organization.”).

Third, BBI asserts that the Defendants established

minimum contacts “by accepting BBI’s settlement payment

which was wired from a California bank to defendants.” Br. of

Appellant 41. To underscore the importance of this payment,

BBI cites a case from the Southern District of Mississippi,

Medical Assurance Co. of Mississippi v. Jackson, 864

F. Supp. 576 (S.D. Miss. 1994). Jackson involved a suit brought

by a Mississippi-based medical malpractice insurance company

against two Alabama residents: Moore, the victim of a botched

operation in Mississippi that created a need for additional

surgery; and Jackson, Moore’s attorney. Id. at 577. Jackson

threatened to sue the insurance company on Moore’s behalf and

demanded a $1,100,000 settlement. Id. After “a series of

letters and telephone calls,” Moore agreed to a settlement of

$56,250 from the insurance company in exchange for an

absolute release. Id. Jackson and Moore accepted and

negotiated the $56,250 check that the insurance company

tendered, but they refused to execute the absolute release that

the company had also sent them. Id. They returned an altered

version of the release form instead. Id. at 578. The insurance

company sued Jackson and Moore in a Mississippi federal

district court, alleging breach of the settlement agreement. Id.

at 578. Jackson and Moore claimed that the court lacked

personal jurisdiction over them because the insurance company

had sent the payment and the release documents to Alabama. Id.

The court rejected their claim, pointing out that “the check was

sent from Mississippi and was ultimately paid by a Mississippi
 White’s attorney did respond to BBI’s warnings of a 20

lawsuit with hints of a countersuit. Nonetheless, it was BBI that

set events in motion. 

39

bank,” that “the release, which is central to this action” was sent

from Mississippi and was to be returned to Mississippi, and that

“defendants did, in fact, return a [modified] release document”

to Mississippi. Id. Moreover, the court pointed out that Jackson

initiated the transaction by threatening to sue the Mississippibased insurance company. Id. at 579. 

Despite some superficial similarities, Jackson is

distinguishable. Although White and her attorney, like Moore

and Jackson, accepted payment from a bank located in the forum

state in exchange for accepting a settlement agreement, they did

not initiate the transaction by threatening to sue a California

company. Also, whereas Moore had traveled to Mississippi 20

for surgery performed by a Mississippi doctor, 864 F. Supp. at

577, White had not directed any activities toward California

before BBI contacted her. Thus, even if we regard Jackson as

persuasive authority, it does not compel a finding of purposeful

availment. 

Fourth, BBI argues that the parties contemplated future

consequences. Among other things, the Agreement states that

the Defendants “hereby irrevocably appoint BBI as their

respective lawful attorney-in-fact with authority to file any

document in the name of and on behalf of [the Defendants] for

the purpose of taking any of the actions required by [Section 4

of the Agreement] upon the event of a default.” We agree that
 Of course, even if White could prove that she refused to 21

consent to personal jurisdiction in California during the contract

negotiations, this would not matter if the events surrounding the

contract otherwise indicate that she has purposely availed

herself of that forum. In this case, however, BBI suggests that

we can interpret the choice-of-law clause as probative of

White’s acquiescence to litigation in a California court, since

40

the attorney-in-fact provision suggests that the parties

contemplated future consequences to some extent. Still, a large

gulf exists between the future contacts contemplated by this

provision and the extensive future contacts contemplated by the

Burger King contract. Whereas the Burger King defendant

“entered into a carefully structured 20-year relationship that

envisioned continuing and wide-reaching contacts with Burger

King in Florida,” id. at 480, the Settlement Agreement merely

describes what will happen in the event of default.

In sum, we question whether any of the factors that BBI

cites (the choice of law clause, the mail and telephone

negotiations, the acceptance of the settlement check, and the

attorney-in-fact provision) would individually support

purposeful availment. The combined force of these factors,

however, may be sufficient. On the other hand, White has

asserted that the original agreement contained a clause

consenting to personal jurisdiction in California that the parties

removed at White’s insistence. If true, this suggests that we

should hesitate to read the terms of the contract, especially the

choice-of-law clause, as indicative of the “reasonable

foreseeability of possible litigation” in California court. See 21
California courts are more familiar with California law than

other courts. If White specifically objected to a clause

consenting to personal jurisdiction, this counsels us against such

an interpretation of the choice-of-law clause.

 At oral argument, BBI said that the District Court would be 22

unable to consider this evidence on remand because it would

violate the parol evidence rule. But the issue here is not how to

interpret the contract, but whether personal jurisdiction exists.

This requires an inquiry into “prior negotiations,” Burger King,

471 U.S. at 479, even when the contract purports to be the entire

agreement between the parties. 

41

471 U.S. at 482. BBI contests this fact, and we do not have

evidence of it in the record other than White’s affidavit and

brief. Therefore, on remand the District Court may wish to

investigate White’s claim regarding the contract negotiations,

since it could shed light on the extent to which the parties

contemplated an ongoing relationship with California, including

the possibility of litigation there.22

2. Purposeful Availment Through Trademark Infringement

BBI contends that the Defendants’ alleged trademark

infringement created personal jurisdiction in California because

the Defendants purposefully directed their activities toward that

forum. Br. of Appellant 42. Relying on the “effects test” of

Calder v. Jones, 465 U.S. 783 (1984), BBI says that purposeful

availment exists if the defendant “(1) committed an intentional

act, (2) expressly aimed at the forum state, (3) causing harm that
 BBI provides a misleading description of Panavision,

23

saying that it held that the “effects test” is “satisfied where

plaintiff alleged infringement of trademark due to defendant’s

use of plaintiff’s trademark as domain name.” This is directly

contrary to the court’s language requiring “something more”

42

the defendant knows is likely to be suffered in the forum state.”

Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)

(summarizing Calder’s “effects test”). 

BBI contends that trademark infringement “is treated as

an intentional tort for jurisdictional purposes.” The first case

that BBI cites for this proposition is Sebastian Int’l, Inc. v.

Russolillo, No. 00-03476 CM, 2000 U.S. Dist. LEXIS 21510

(C.D. Cal. Aug. 25, 2005). In Russolillo, the court held that the

defendant’s trademark infringement through the sale of

counterfeit goods was “intentional” because the plaintiff had

written a letter to put the defendant on notice of the

infringement. 2000 U.S. Dist. LEXIS 21510, at *13. BBI

claims that Russolillo is analogous to the instant case, because

BBI informed the Defendants of their infringement in 2003,

prior to the settlement, and informed them of their continuing

infringement on February 1, 2005. The second case that BBI

cites is Panavision. In Panavision, the courtstated that although

the defendant’s registration of the plaintiff’s trademark as a

domain name was not sufficient to establish jurisdiction in the

forum state, the defendant’s “scheme to register [the plaintiff’s]

trademarks as his domain names for the purpose of extorting

money” from the plaintiff was an intentional act directed at the

forum state. 141 F.3d at 1322. The instant case is 23
than use of a trademark as a domain name:

We agree that simply registering someone else’s

trademark as a domain name and posting a web

site on the Internet is not sufficient to subject a

party domiciled in one state to jurisdiction in

another. . . . [T]here must be ‘something more’ to

demonstrate that the defendant directed his

activity toward the forum state. Here, that has

been shown.

Panavision, 141 F.3d at 1322 (citation omitted). 

43

distinguishable from both Russolillo and Panavision. In

Russolillo, the court indicated that it was the explicit warning

about trademark infringement, not the act of counterfeiting

itself, that rendered the defendant’s trademark infringement

“intentional.” 2000 U.S. Dist. LEXIS 21510, at *13. Although

BBI also sent a warning to the Defendants, the record suggests

that the Defendants acted in good faith to remedy the alleged

infringement. If this is true, then any ongoing “infringement”

was not the result of intentional acts on the Defendants’

part—unless we agree with BBI’s claim that surrendering

control of the telephone number was absolutely necessary to

prevent further infringement. Panavision supports the

Defendants, because it makes clear that the mere use of another

party’s trademark (i.e., registration of domain names and

creation of web sites) does not constitute an intentional act

aimed at the forum state for jurisdictional purposes. 141 F.3d at

1322. It is possible, however, that the District Court’s findings
 Not all circuits have adopted this approach. For example, 24

the Tenth Circuit requires that “the forum state itself must be the

‘focal point of the tort’,” an approach that it has described as

“somewhat more restrictive” than Bancroft. Dudnikov v. Chalk

& Vermilion Fine Arts, 514 F.3d 1063 (10th Cir. 2008) (citing

Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1080 (10th Cir.

1995)). 

44

of fact will reveal more about whether White’s behavior can be

construed as “intentional.”

BBI also contends that the Defendants’ behavior was

“expressly aimed at the forum state.” We do not find it

immediately obvious why the failure to change New Jersey

telephone listings and to surrender a New Jersey telephone

number is behavior “expressly aimed” at California. But BBI

relies on language in Bancroft & Masters v. Augusta National,

223 F.3d 1082 (9th Cir. 2000), which states that “the [‘expressly

aiming’] requirement is satisfied when the defendant is alleged

to have engaged in wrongful conduct targeted at a plaintiff

whom the defendant knows to be a resident of the forum state.”

223 F.3d at 1086. Even though the Defendants’ alleged

infringement was limited to activities in New Jersey, Bancroft

implies that because it was targeted at franchisees of BBI, a

known “resident” of California, it was therefore expressly aimed

at California. But Panavision suggests a contrary result.

24

Given the holding in Panavision that the use of a company’s

trademarks in domain names and web sites is not “expressly

aimed” at the forum in which the company has its principal

place of business, 141 F.3d at 1322, we question whether
 The Ninth Circuit has overruled the “brunt of the harm” 25

requirement, replacing it with a “jurisdictionally sufficient

amount of harm” requirement. Yahoo! Inc. v. La Ligue Contre

Le Racisme, 433 F.3d 1199, 1207 (9th Cir. 2006) (“We take this

opportunity to clarify our law and to state that the ‘brunt’ of the

harm need not be suffered in the forum state. If a

jurisdictionally sufficient amount of harm is suffered in the

forum state, it does not matter that even more harm might have

been suffered in another state.”). 

45

listings in New Jersey telephone directories could be

characterized as actions expressly aimed at California. 

Finally, BBI contends that the “brunt of the harm” to its

reputation and profits is felt in California because California is

its principal place of business. BBI argues that just because 25

BBI is a California corporation, a jurisdictionally sufficient

amount of economic harm is felt in California. See Harris

Rutsky & Co. Ins. Servs. v. Bell & Clements, Ltd., 328 F.3d

1122, 1131 (9th Cir. 2003) (for “a California corporation whose

principal place of business is in California, . . . the brunt of the

harm [is] felt in California.”). We cannot resolve this issue

without more evidence. BBI’s California complaint suggests

that the Defendants’ alleged infringement is causing economic

harm to BBI as a whole. But White claimed that as of March 9,

2005, her company had not received a single call from anyone

confused by the erroneous listing, which would suggest that

little economic harm has been inflicted upon the New Jersey

franchisees, let alone the national entity. Without further

factfinding, it is impossible to decide which party is correct
46

about the economic effects felt by BBI in California.

C. Does The Cause of Action Arise Out of Forum-Related

Activities?

The next prong of the three-part test for specific

jurisdiction is whether the cause of action arises out of forumrelated activities. Although this is a distinct requirement, in this

case the analysis is identical to the “purposeful availment”

analysis. BBI has not asserted that White or her company has

any connection to California aside from those associated with

the causes of action for breach of contract and trademark

infringement. Thus, if the first prong is satisfied, then the

second prong is satisfied as well. 

D. Fair Play and Substantial Justice, a.k.a. Reasonableness

If the District Court finds that the first two prongs are

satisfied, it must consider whether “minimum requirements

inherent in the concept of ‘fair play and substantial justice’ may

defeat the reasonableness of jurisdiction even if the defendant

has purposefully engaged in forum activities.” Burger King,

471 U.S. at 477–78. Although there is a “strong presumption of

reasonableness” if purposeful availment exists, Dole Food, 303

F.3d at 1117, courts must still consider reasonableness as a

separate factor. This is a heavily fact-based inquiry. California

has identified seven factors that affect reasonableness, none of

which are determinative:

(1) the extent of the defendants' purposeful

interjection into the forum state's affairs; (2) the
47

burden on the defendant of defending in the

forum; (3) the extent of conflict with the

sovereignty of the defendants' state; (4) the forum

state's interest in adjudicating the dispute; (5) the

most efficient judicial resolution of the

controversy; (6) the importance of the forum to

the plaintiff’s interest in convenient and effective

relief; and (7) the existence of an alternative

forum.

Harris Rutsky, 328 F.3d at 1132 (citing Core-Vent Corp. v.

Nobel Indus. AB, 11 F.3d 1482, 1487–88 (9th Cir. 1993)). Most

of these factors cannot be resolved without factfinding from the

District Court. For example, the District Court might wish to

consider the second factor in light of the statements throughout

White’s briefs that it is extremely burdensome for a small

business in New Jersey with no California connections (aside

from, perhaps, those created through its dealings with BBI) to

litigate in California. To decide the fifth factor, the District

Court should “focus on the location of the evidence and

witnesses.” Harris Rutsky, 328 F.3d at 1133. If most of the

evidence and witnesses are located in New Jersey, where the

alleged infringement occurred, this factor weighs against

personal jurisdiction in California.

VI.

We will vacate the April 5, 2006 Order of the District

Court for the District of New Jersey, including the assessment
48

of fees and costs. We remand this case so that the District Court

may decide the question that the parties asked it to decide over

two years ago: whether to set aside the California default

judgment for lack of personal jurisdiction.
49

Budget Blinds, Inc. v. White, et al., Nos. 06-2610 and 06-2733

Cowen, Circuit Judge, concurring in part and dissenting in part.

This case arises out of the context of a 28 U.S.C. § 1963

registration proceeding, and more fundamentally, involves a

collateral attack to a foreign default judgment. It is well-settled

that the grounds for obtaining collateral relief are extremely

limited. The majority, however, holds that registering courts

have the power to vacate a foreign judgment rendered by their

sisterfederal courts pursuant to Federal Rule of Civil Procedure

60(b)(6). In doing so, it becomes the first court in the nation to

reach this conclusion. Because I think this holding potentially

creates a circuit split where none existed before, and because I

question whether such a broad ruling is necessary under the

particular circumstances of this case, I respectfully dissent. 

Under the circumstances before us, one may only seek to

collaterally vacate a default judgment obtained in another

jurisdiction based on a challenge to the underlying validity of

the judgment. Sheet Metal Workers’ Nat’l Pension Fund v.

Elite Erectors, Inc., 212 F.3d 1031, 1034 (7th Cir. 2000) (“[a]

party that simply refuses to appear may contend in a later case

that the first tribunal lacked jurisdiction – though jurisdiction is

the only issue thus preserved”) (emphasis in original); Yale v.

Nat’l Indem. Co., 602 F.2d 642, 644 (4th Cir. 1979) (“only void

judgments are subject to collateral attack, and [] a void judgment
 As the majority points out, only the Seventh Circuit has 26

held that registering courts lack such authority. See Sheet Metal

Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d

1031, 1034 (7th Cir. 2000); see also Pacific Reinsurance Mgmt.

Corp. v. Fabe, 929 F.2d 1215, 1217 (7th Cir. 1991)

(“[e]nforcement proceedings [pursuant to § 1963] do not allow

collateral attacks on the judgment”). 

 We have never expressly spoken on this issue, but our 27

prior decisions have certainly assumed the existence of such

50

is only one that is rendered by a court lacking jurisdiction over

the default or over the subject matter”); see also Ins. Corp. of

Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 706 (1982) (“[a] defendant is always free to ignore the

judicial proceedings, risk a default judgment, and then challenge

that judgment on jurisdictional grounds in a collateral

proceeding”). From this, it naturally follows that registering

courts may entertain motions to vacate registered foreign

judgments pursuant to Rule 60(b)(4), on the basis that the

rendering court lacked jurisdiction. See 12 James Wm. Moore

et al.,MOORE’S FEDERAL PRACTICE § 60.60[3][c] (3d ed. 1997);

30 Am. Jur. 2d Executions and Enforcement of Judgments § 813

(“the court in which the judgment is registered may determine

whether the court which entered the judgment had jurisdiction

over the subject matter and parties”). This is certainly the view

that has been expressly embraced by nearly all of our sister 26

circuits to have squarely confronted the question, and I thus

concur with the majority’s opinion insofar as it adopts this

relatively uncontroversial position as Third Circuit law. 

27
power on the part of enforcement courts. See In re Universal

Display & Sign Co., 541 F.2d 142, 143-44 (3d Cir. 1976)

(affirming registering court’s denial of Rule 60(b)(4) relief

where defendants litigated issue of personal jurisdiction in

rendering court but lost); Somportex Ltd. v. Phila. Chewing

Gum Corp., 453 F.2d 435, 444 (3d Cir. 1972) (affirming denial

of relief from English default judgment sought to be enforced in

Pennsylvania where defendants had opportunity to contest

jurisdiction in English forum). 

 There is no question, of course, that regardless of whether 28

a request for vacatur is labeled as one pursuant to Rule 60(b),

courts possess the inherent power to grant relief if the grounds

of the request otherwise satisfy the requirements of an

independent action in equity. See Fed. R. Civ. P. 60(d) (“[Rule

60] does not limit the power of a court to: (1) entertain an

independent action to relieve a party from a judgment, order, or

proceeding; (2) grant relief under 28 U.S.C. § 1655 to a

defendant not actually personally notified of the action; or (3)

51

However, the opinion does not stop there, but goes

further to hold that registering courts may also consider Rule

60(b)(6) motions to vacate foreign judgments under certain

“extraordinary circumstances.” Here, I must part ways with my

majority colleagues. While it is true that the precise contours of

the registering court’s authority to grant Rule 60(b) relief remain

unsettled, I am nevertheless unaware of any court considering

the question – before today – that has affirmatively declared

such authority to exist for any Rule 60(b) subsection outside of

the (b)(4) context. See 11 Charles A. Wright et al., FEDERAL 28
set aside a judgment for fraud on the court.”); 12 James Wm.

Moore et al.,MOORE’S FEDERAL PRACTICE § 60.60[3][b] (3d ed.

1997); 30 Am. Jur. 2d Executions and Enforcement of

Judgments § 813 (1994) (“[t]he registering court may[] grant

relief from the judgment in an independent equitable action,

particularly where some fraud or deception was practiced on the

rendering court”). Indeed, numerous courts, when encountering

Rule 60(b) vacatur requests based on allegations of fraud,

mistake or excusable neglect, have construed them as

independent equitable actions. E.g., Winfield Assocs., Inc. v.

W.L. Stonecipher, 429 F.2d 1087, 1090 (10th Cir. 1970) (so

construing Rule 60(b) motion, thus avoiding question of

“whether Rule 60(b) is a proper means of attacking a judgment

entered by a United States District Court sitting in another

state”); Hadden v. Rumsey Products, Inc., 196 F.2d 92, 95 (2d

Cir. 1952) (same). Thus, I would be satisfied if the holding here

on the Rule 60(b)(6) “extraordinary circumstances” category of

relief is expressly limited to only those narrow circumstances

that would support an independent equitable action. But, the

majority’s view of a registering court’s Rule 60(b)(6) authority

is not so limited. 

In any event, I note that no grounds to support an

independent equitable action exist here, since defendant’s

affidavit makes clear that her default was intentional. App. vol.

2 at 56, ¶¶ 15-16 (attesting she did not appear in California

action on advice of counsel); see 12 MOORE’S FEDERAL

PRACTICE §§ 60.81-60.82 (independent equitable relief requires,

inter alia, that no adequate remedy is available at law and that

the judgment sought to be vacated is “manifestly

52
unconscionable”); see also Somportex, 453 F.2d at 443 n.13

(suggesting collateral attacks to default judgments are allowed

in “limited” instances where fraud or excusable neglect are

involved). 

53

PRACTICE & PROCEDURE § 2787, at 36 (2d ed. 1995) (“the courts

have not squarely decided to what extent, if at all, the court in

which a judgment is registered can give relief from the judgment

under Rule 60(b)”); Indian Head Nat’l Bank of Nashua v.

Brunelle, 689 F.2d 245, 251 (1st Cir. 1982) (noting neither the

parties nor the court itself could find a single case “where a

court of registration was willing to entertain directly a Rule

60(b) motion other than one attacking a default judgment for

lack of personal jurisdiction”). Indeed, the only court directly

confronting the issue expressly held to the contrary: “[A]

registration court errs in entertaining a Rule 60(b) motion that

alleges neither a judgment void for lack of personal jurisdiction

nor grounds that would support an independent equitable

action.” Brunelle, 689 F.2d at 251-52. 

This is not surprising, in light of the general rule that

notwithstanding the rule’s silence on the topic, applications for

Rule 60(b) relief must typically be made in the court rendering

the judgment. See, e.g., 12 James Wm. Moore et al., MOORE’S

FEDERAL PRACTICE § 60.60[1] (3d ed. 1997) (although the rule

itself does not expressly so provide, “it is clear that the drafters

of the rule contemplated that the motion ... would always be

brought ‘in the court and in the action in which the judgment
54

was rendered’”) (emphasis added); 11 FEDERAL PRACTICE &

PROCEDURE § 2865, at 377 (Rule 60(b) motions generally made

to rendering court). While this does not per se preclude one

from challenging the underlying judgment upon registration,

registering courts most often deny such challenges without

prejudice, referring the parties to litigate the Rule 60(b) issue in

the rendering court. See 11 FEDERAL PRACTICE & PROCEDURE

§ 2865, at 378 (“it is appropriate for the court in the district of

registration to decline to pass on the motion for [Rule 60(b)]

relief and to require the moving party to proceed in the court that

gave judgment”); e.g., United States v. Fluor Corp., 436 F.2d

383, 384-85 (2d Cir. 1970) (affirming registration court’s denial

of Rule 60(b)(5) motion without prejudice). And rightly so.

With these well-settled legal principles in mind, I think the First

Circuit’s holding in Brunelle best vindicates the significant

comity interests implicated in the registration context while

adequately preserving collateral avenues of relief for litigants.

Furthermore, even if one agrees with the substance of the

majority’s legal conclusion – one that is at odds with the

Brunelle decision – that registering courts have the power to

vacate foreign judgments under certain unspecified

“extraordinary circumstances” pursuant to Rule 60(b)(6), the

question remains whether this is the appropriate case in which

to make such a proclamation. This is especially so when,

notwithstanding its articulation of a new rule expanding the

bases for which collateral relief may be granted in registration

proceedings, the majority nevertheless acknowledges that no

extraordinary circumstances exist in this case, in any event, so
 In my view, the reason why Harad v. Aetna Casualty and 29

Surety Company, 839 F.2d 979 (3d Cir. 1988) and Emcasco

Insurance Company v. Sambrick, 834 F.2d 73 (3d Cir. 1987) do

not apply turns not on that they were decided under Rule

60(b)(1) as opposed to Rule 60(b)(6), but simply because they

both pertained to direct attacks on default judgments (where the

motions for relief were made to the rendering courts

themselves). Insofar as Harad and Emcasco require any

consideration of the underlying merits of the action, they cannot

dictate the governing standard for vacatur in the case where a

party intentionally defaults and then seeks to vacate that

judgment in the context of a registration proceeding. 

55

as to warrant any such relief. It would seem then, that a

satisfactory resolution could have been had here without

advancing the Rule 60(b)(6) issue; we should have accordingly

done simply this. For me, this case begins and ends with the

District Court’s vacatur of the default judgment insofar as its

decision was based in any part on its perception of the merits of

the underlying California action. It is axiomatic that when a 29

party purposefully fails to appear in an action on the basis of the

belief that the foreign tribunal lacks personal jurisdiction, she

waives the right to later contest the underlying merits of that

action in a collateral proceeding. E.g., Elite Erectors, Inc., 212

F.3d at 1034; Hazen Research, Inc. v. Omega Minerals, Inc.,

497 F.2d 151, 154 (5th Cir. 1974) (where “the defendant makes

no appearance and the judgment goes by default, the defendant

may defeat subsequent enforcement in another forum by

demonstrating that the judgment issued from a court lacking

personal jurisdiction ... [but] should the attack fail, the default
56

judgment becomes no less final and determinative on the merits

of the controversy than a decree entered after full trial”). Thus,

when the District Court considered the merits of the California

action below to opine that defendant “possesses an extremely

meritorious defense” warranted vacatur, App. vol. 1 at 7, it

missed the fundamental distinction between direct and collateral

attacks. 18 MOORE’S FEDERAL PRACTICE § 130.35[1]

(“registering court cannot look into the substance of the

judgment to reexamine its validity”). As the Restatement

cogently explains:

[I]t is inappropriate to consider the merits of an

attack on a judgment when that attack is made in

the course of a subsequent action in which the

judgment is relied on as a basis of claim or

defense. To consider the merits of the attack in

such a context is to contravene the general

principle that relief from a judgment should be

sought in the court that rendered the judgment. 

RESTATEMENT (SECOND) OF JUDGMENTS § 80 cmt. a ¶ 2 (1982).

Accordingly, although I concur with the majority’s

ultimate disposition of the case, I respectfully dissent from its

pronouncements on the general availability of Rule 60(b)(6)

relief. Under the particular circumstances here, I would hold
57

that a registration court errs when it vacates a foreign judgment

on grounds other than those of voidness or which would

otherwise support an independent equitable action. The Full

Faith and Credit Clause and the weighty interests of comity

demand nothing less.