* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfa vors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### April 12, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALVIN D. CRAIGHEAD, Defendant-Appellant, and LEAH CRAIGHEAD; AMERICAN NATIONAL BANK OF WOODWARD; JEWELL IMPLEMENT COMPANY, INC.; JI CASE COMPANY; WOODWARD COUNTY TREASURER; WOODWARD COUNTY BOARD OF COUNTY COMMISSIONERS; WAYNE RICHARD GUNWALL, as Trustee of Blue Sage Trust, Defendants. No. 05-6227 (D.C. No. CIV-96-1150-C) (W.D. Okla.)

ORDER AND JUDGMENT ** (...continued)

conditions of 10th Cir. R. 36.3. -2- Before KELLY , BRISCOE , andLUCERO , Circuit Judges.

Appellant, Alvin D. Craighead, appeals the districtcourt’s denial of his Federal Rule of Civil Procedure 60(b)(4) motion see king to vacate a default judgment entered against him on the grounds that itwas void for lack of jurisdiction. We exercise our jurisdiction under 2 8 U.S.C. § 1291 and affirm. On July 18, 1996, the United States filed a complai nt against Mr. Craighead (1) alleging that he defaulted on certain promissory notes, and (2) seeking foreclosure and judicial sale of property securing the notes. Attached to the complaint were copies of the notes and security doc uments in question. On May 2, 1997, the district court, in light of Mr. Cr aighead’s failure to answer the complaint, took the factual allegations of the comp laint as true and entered default judgment against Mr. Craighead. Five years later, in response to a motion by the Un ited States for production of documents by a third party in aid of the judgmen t, Mr. Craighead moved for the default judgment to be vacated for lack of juri sdiction because “there were no facts before the court in support of the United States’ claims.” R., Doc. 97 at 5. Mr. Craighead argued that “proof of claim requires at least one competent fact-3-

witness testifying to documentary evidence properly authenticated” and that “the United States of America, in obtaining judgment in CIV-96-1150 [did not] proffer[] any authenticated evidence to which a com petent fact witness testified to under oath . . . .” Id. The district court denied Mr. Craighead’s motion and Mr. Craighead appealed. On appeal, Mr. Craighead’s main argument is that th e United States did not properly show that it had standing to bring the cas e because “[f]or the lower court to have had standing, counsel purporting to represe nt the United States would have had to produce the original promissory note ornotes upon which the claim was based.” Aplt. Opening Br. at 5. He also argue s that the failure to attach the original documents to the complaint showed that the security interests were not properly perfected. Mr. Craighead argues that: the record contains only the theories and conclusio ns of counsel purporting to represent the United States–no notes and no authenticated documents. This being the case, this court has actual knowledge that no judicial proceeding took place as judicial proceedings must first examine the question of stan ding. Clearly, counsel purporting to represent the United States f ailed to establish standing (WHICH CANNOT BE WAIVED AND IS PERHAPS THE MOST IMPORTANT ELEMENT OF SUBJECT MATTER JURISDICTION) bearing on this court the nondiscreti onary duty to vacate all the judgments as facially void. Aplt. Opening Br. at 7-8.

Analysis-4-

Under Rule 60(b)(4), a court may grant relief from a default judgment on the ground that the judgment was void. “A judgmentis void . . . if the court which rendered it lacked jurisdiction of the subjec t matter, or of the parties, or acted in a manner inconsistent with due process of law.” United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002) (quotation omi tted). “[C]onstitutional standing is necessary to the court’s jurisdiction.” Robey v. Shapiro, Marianos & Cejda, L.L.C. , 434 F.3d 1208, 1211 (10th Cir. 2006) (quotation o mitted). Constitutional standing exists if the plaintiff: s how[s] [that] (1) it has suffered an “injury in fact” that is (a) concre te and particularized and (b) actual or imminent, not conjectural or hypo thetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculat ive, that the injury will be redressed by a favorable decision. Id. at 1210-11 (quotation omitted) (alterations in orig inal). The fatal flaw in Mr. Craighead’s argument is that it rests on the faulty premise that the district court could not enter def ault judgment unless the government proved the factual allegations contained in its complaint. On the contrary, Mr. Craighead relieved the government of the burden of proving its factual allegations, including the allegations supp orting constitutional standing, by failing to answer the complaint. “The defendant , by his default, admits the plaintiff’s well-pleaded allegations of fact, is co ncluded on those facts by the judgment, and is barred from contesting on appeal t he facts thus established.” Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.-5-

1975); see also Olcott v. Delaware Flood Co. , 327 F.3d 1115, 1125 (10th Cir. 2003) (quoting Jackson v. FIE Corp. , 302 F.3d 515, 525 (5th Cir. 2002), for the same proposition); Lundahl v. Zimmer , 296 F.3d 936, 939 (10th Cir. 2002) (quoting Buchanan v. Bowman , 820 F.2d 359, 361 (11th Cir. 1987), for the same proposition).
In Nishimatsu Construction Co. , the Fifth Circuit relied partly on the Supreme Court’s holding in Thomson v. Wooster , 114 U.S. 104 (1885). 515 F.2d at 1206. As stated in a different case, this time out of the Second Circuit: The applicable principles are clearly implied from Thomson v. Wooster . . . where the court held that defendants who had defaulted in a patent infringement suit would not be permitte d to show that the patent sued upon was invalid. Defendants had sough t to introduce the original patent to show it differed from a reis sued patent, which was the patent the plaintiffs sought to enforce. T he court ruled that neither this proof nor evidence that defendants had delayed 14 years in seeking reissue were sufficient to defeat the co ntrary allegation of the validity of the patent contained in the complai nt[ . . . .] We are instructed by Woosterthat so long as the facts as painted by the complaint “might * * * have been the case” they may not now be successfully controverted . . . . Trans World Airlines, Inc. v. Hughes , 449 F.2d 51, 64 (2d Cir. 1971) (quoting Thomson , 114 U.S. at 114) (overruled on other grounds by Hughes Tool Co. v. Trans World Airlines, Inc. , 409 U.S. 363 (1973)). In short, the time has pas sed for Mr. Craighead to claim that the facts were othe r than those alleged in the complaint.-6-

Mr. Craighead argues in his reply brief that “[e]ve n in a default judgment, damages must be proved.” Aplt. Reply Br. at 5. As support for his argument he cites to American Red Cross v. Community Blood Center Of The Ozarks , 257 F.3d 859 (8th Cir. 2001). In that case the Eighth Circu it held that “when a default judgment is entered on a claim for an indefinite oruncertain amount of damages, facts alleged in the complaint are taken as true, e xcept facts relating to the amount of damages, which must be proven in a supple mental hearing or proceeding.” Id. at 864 (quotation omitted). The government, howev er, is correct in its concise and well-reasoned brief, where it no tes that the claim for damages in this case was not indefinite or uncertain. Inst ead, once the facts regarding Mr. Craighead’s liability on the notes were taken a s true, all the court was required to do was calculate the amounts owed on th e promissory notes and the interest. “‘If defendant does not contest the amou nt prayed for in the complaint [by failing to answer] and the claim is for a sum c ertain or a sum that can be made certain by computation, the judgment generally will be entered for that amount without any further hearing.’” Resp. Br. at 13 (qu oting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688 (3d ed. 1998)). Mr. Craighead’s remaining arguments on appeal are p remised on Mr. Craighead’s misconception that the district cou rt granted summary judgment-7-

against him and not default judgment. He argues th at “the court below butchered the summary judgment standard.” Aplt. Opening Br. at 8. As summary judgment is not an issue in this case, and as his remaining arguments are rife with personal attacks on government counsel and the district court judge, they neither require nor will receive further attention. Consequently, the judgment of the district court is AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge