Budget Blinds, Inc. v. White

jus- in line with Enforcing the waiver is BLINDS, INC., Appellant BUDGET

tice, it. miscarriage not a The waiver two-prong meets the test we use to evalu- 1) knowing ate in that it: was waivers WHITE; Budget Blinds of Valerie sufficient voluntary, colloquy as the was NJ, Blinds, Inc.; U Inc. Val Mabry not indicated that he did has 2) it, and not work a not understand does Blinds, Budget Inc. justice.18 miscarriage that, analyt- closing, we note White; Budget Blinds of Valerie standpoint, concept “presump- ic of a NJ, Inc.; Blinds, Inc., Val U flowing from ineffective- prejudice” tion of Appellants. very comfortably ness that fits 06-2610, Nos. 06-2733. Flores-Ortega setting where there is no really waiver does not suit the situation in Appeals, United States Court of present. which waiver Without Third Circuit. waiver, recognition of a defendant’s Argued April right paramount to an and coun- appeal is clear, sel’s ineffectiveness defen- July Filed appeal. dant was entitled to an aWith

waiver, disappears, that entitlement pursu-

the ineffectiveness of counsel

ing a than appeal waived is less clear. The

analysis along of the waiver the lines de-

veloped jurisprudence, per- our which if

mits the court to refuse to enforce it miscarriage justice,

would work a allows

consideration of in a fundamental fairness

given situation. reasons, foregoing

For the we will en-

force the collateral provision waiver

plea agreement and will affirm the District

Court’s order. uphold

18. We do not reach last issue set forth in collateral review and we it. certificate, as our focus is on the waiver of OPINION OF THE COURT SMITH, Judge. Circuit appeal, In this we consider whether a properly federal district court relied on Federal Rule of Procedure Civil vacate default entered an- other district court. conclude that it We not, did and we will remand so that it consider whether to aside set the default judgment under Federal Rule of Civil Pro- cedure

I. (“BBI”) Blinds, Budget Inc. ais Califor- corporation nia that franchises win- mobile covering throughout dow businesses According United States. to an affidavit that BBI’s Operating Chief Officer filed with the District Court for the Central California, District of BBI was founded in 1992 and had about 800 territories and 570 licensees nationwide as of October 2005, the date of BBI the affidavit. owns and licenses two trademarks that it has registered Principal Register with the the United States Patent and Trademark (1) Office: “Budget (reg- name Blinds” 21, 1993); istered on December consisting service mark of the words “Bud- get Blinds” in a specific configu- font and 2003). (registered February ration Jersey corpo- Valerie White owns a New Blinds, ration called “Val Inc.” U that fo- design cuses on the and installation of According window blinds. to an affidavit Matalón, Howard A. Esq., Stryker, that White filed with the District Court for Dill, LLP, Newark, NJ, Tams & Jeremiah the District of Jersey, operates New she Morgan, Esq. (argued), Bryan J. Cave this business from a home office her LLP, MS, City, Blinds, Budget Kansas for basement and garage, and her sales are Inc. limited to Jersey. areas of New The affi- Nelson, Ronald J. Esq. (argued), War- davit further states that she conducted ren, NJ, White, et al. Valerie business from 1988 to June 2004 as

“Budget NJ,” “Budget Blinds” or Blinds of SMITH, HARDIMAN, Before: registered she her business as COWEN, Judges. Jersey Circuit New corporation Sep- domestic provided that after June “Budget Agreement the name 1997 under tember “shall not NJ, Corporation her busi- White and the changed Inc.” She Blinds of or do business” under the trade pursuant operate Blinds” name to “Val U ness’s “Budget that we de- Blinds” Agreement name and service mark the Settlement any manner that “or other name or scribe below. public the might give general tend to dated No- White In a letter to Valerie business] her impression [or White Legal Manager BBI’s vember any way or affiliated with associated “Bud- name use of the that White’s stated BBI, any of the conducted businesses “feder- of BBI’s was a violation get Blinds” franchisees or licensees of by it or other trademark al, state, law and common things, Section Among other Marks.” public con- likely to cause rights” and was change existing her required White to goods. origin White’s fusion about “Budget Blinds of name from corporation’s re- attorney J. Nelson Ronald White’s NJ, Inc.,” to Jersey, to “BB of New Inc.” 1, December in a letter dated sponded using a new conduct all future business “Bud- had the name 2003 that White used under the established corporation to be 1988, first to BBI’s prior since get Blinds” Blinds, Inc.,” and to remove name “Val U added letter the name. Nelson’s use mark, and name “Budget Blinds” trade “Budget had established that White confusingly similar names or as well as in the trademark as a common law Blinds” marks, company’s advertising, from her by her busi- Jersey counties served New letterheads, mat- stationery, printed signs, in this franchisees and that BBI’s ness ter, importantly forms. Most and other by using rights infringing were her area 4(f) litigation, of this Section purposes for dated In a to Nelson the name. letter instructed White Agreement of the also 2004, ques- BBI’s counsel February her com- steps to specific take disassociate law of a common the existence tioned from the name pany’s telephone number “BBI pre- and stated trademark the time of the Blinds.” At “Budget pur- bring a lawsuit California pared to Pages the Yellow directories Agreement, enjoin your Lanham Act to to the suant Gloucester, and Camden Burlington, for activities” if the infringing client’s number for phone listed Counties reso- mutually-agreeable not reach could name “Bud- next to the company White’s lution. situation, Blinds.”1 To address get communications, After several additional 4(f) provided Agreement Section Agree- parties entered Settlement part: relevant Agree- April 2004. Under ment Agree- of this Promptly after execution ment, Budget pay BBI White and White, (referred ment, Corporation and Val-U NJ, as “the Inc. Blinds of ... in writ- $160,000 direct Verizon Blinds shall Agreement) Corporation” ..., for BBI to counsel ing, copy with any and purchase and transfer “for (i) three advertise- that all of the interest, claim, relat- said ownership or or all in the said not be renewed ments shall and service mark the trade name ing to ” elsewhere; editions, or county three simi- any confusingly ‘Budget Blinds’ (ii) directory as- calling that customers 4 of the marks. Section lar names or phone simply company's name listings of her Agreement refers to these The with other alphabetical list whose connotations number in an term "advertisements/' According Agree- misleading. may be numbers. companies' names and itself, consisted the "advertisements” ment by providing the tele- any ‘Budget sistance in of those three counties Blinds’ else) (or my numbers of client....” The rec- anywhere phone on or after June similar given ord includes letters addressed longer [the should no Verizon.com, YellowPages.com and both of company] phone number White’s which are dated June related to or affiliated other number White, Corporation, or Yal-U Nonetheless, reprinted the list- Verizon response inquiry Blinds in to an for the phone ing provided number for “Budget telephone number of Blinds.” company “Budget under the name White’s thereafter, upon From time-to-time updated print Blinds” in the editions of its BBI, White, request of reasonable Pages Burlington, Yellow directories for Corporation pro- and Val-U Blinds shall Gloucester, and Camden Counties and the written vide similar directions corresponding online directories. In a let- directory publishers (including publish- February ter dated BBI’s counsel “directories”) ers of Internet-based iden- informed White’s counsel that the continu- tified BBI. ing listings existence these was a viola- Agreement, of the “it ap- tion and that provisions, In addition to these substantive pears only way remedy that to this Agreement stated that and her White your assign violation is for client to to BBI “hereby corporations irrevocably appoint BBI” designated by or to a franchisee respective attorney-in- BBI their as lawful telephone company. number for White’s authority any fact with to file document in response, White, proposed White’s counsel set- the name of and on behalf of ting up recording give would callers Corporation pur- or Blinds for the Yal-U telephone to this number choice between pose taking any required of of the actions connecting company White’s or to the upon this Section the event of a rejected local BBI franchisee. BBI Finally, Default.” Agreement con- in proposal February a letter dated tained a choice-of-law clause: “This Settle- 2005, reiterating its demand that Agreement governed by ment will White be and assign stating the number to BBI and construed under the laws of the State of it would company deem White and her California.” Agreement be in long breach “as says good-faith White that she made a there is circumstance under which comply obligations effort to with her under person looking telephone in a current book Agreement, including those Section calling and a number listed under 4(f) telephone related to her number. The ‘Budget your name Blinds’ will reach May record contains letter dated 9, 2005, clients.” In a letter dated March attorney from White’s to Verizon Custom- that, White’s counsel informed BBI al- directing er Service Verizon “not to renew though everything White would do republish existing their advertisements “reasonably possible she considered to mit- Pages (including all Yellow Burlington, igate fully the effects of the unauthorized Gloucester, County Camden and Middlesex re-printing,” she would not surrender the editions) they in which have used the phone number itself. phrase ‘Budget in whole or in Blinds’ part.” White, The letter also directs Verizon BBI a Complaint against “to filed Assistance, Directory Blinds, Inc., instruct beginning Budget Val U and of Blinds 1, 2004, (“Defendants”), inquiries NJ, June to answer all for Inc.2 which was dock- Complaint 2. The already changed does not reflect the fact that white had the name from fendants, injunctive BBI re- granting in the United States April eted on Complaint in its and requested it of lief that District for the Central District Court regis- BBI $83,083.51 monetary relief.4 The Com- California, Division. Southern (1) the District action: tered this default of eight causes lists plaint (2) Jersey on of New contract; specific perform- for the District Court of breach January (3) infringement; 2005. On November ance; federal trademark (5) fed- (4) infringement; the Defendants notice gave BBI trademark state (6) February federal 14 in origin; a motion designation false would file eral (7) dilution; trademark state of New Jer- for the District District Court trademark dilution; violation of California the turnover sey directing and an order relief, BBI As checking Act. account Competition from White’s Unfair funds vi- against further injunction requested specified an BBI in the amount puni- actual and agreement,3 January the Defendants ment. On olation accounting of defendants’ they file a damages, cross- gave tive notice suit, attor- damages, Jersey costs District Court to treble motion in the New profits, fees, interest. pre-judgment they judgment, filed neys’ vacate the default prop- venue is asserts that turnover Complaint opposition The mo- a Brief in of California District er in Central of the cross-motion. support tion and the events part Brief, a substantial asserted that “because In this the Defendants claims oc- Budget Blinds’ rise to giving the default should declared harm in that the this District within curred null void the California dis- because in this dis- has occurred Budget Blinds trict had lacked intentionally have and the Defendants Brief, trict support of this White over them. Budget toward their actions directed inter explaining an affidavit alia submitted in this Dis- Blinds, headquartered which is had company nor her ever that neither she did not file a re- Defendants The trict.” California, owned prop- entered physically though BBI even Complaint to the sponse California, in in solicited business Cal- erty counsel of it. White’s them notice sent any goods in ifornia, sold purchased or deci- an intentional this as characterizes California, an internet or even maintained limited sion, part by in White’s motivated and affi- Both the Brief White’s website. resources, Complaint on the ignore the draft of the earlier davit asserted an allegedly that the California ground granting provision contained Agreement the De- jurisdiction over personal lacked in jurisdiction to personal consent White’s fendants. but District California the Central to allow inclusion refused the Defendants 2005, 7, District Court

On October Agreement. in the final provision of this en- District of California for the Central of Law on Janu- a Memorandum BBI filed against the De- a default tered NJ, NJ, or trade Marks or marks Blinds names, similar to "BB of "Budget Blinds of Inc.” any whatsoever.” manner Inc.” $68,613.75 for treble 4. This amount reflects explicitly demand Complaint does BBI’s $14,469.76 attorneys' fees damages for and phone number to White surrender the Instead, requested proposed order and costs. BBI's one of its franchisees. BBI or relief, $105,954.76 monetary which would company be en- and her requests that White $22,871.25 in an violating have reflected additional from joined and restrained damages, but California summary, compensatory requires, "which Agreement, from the limitation, deleted this amount dis- district that the Defendants without Budget final Order. display the use continue and/or ary opposing appear the Defendants’ cross- before the California court to 2, motion to the default argument. vacate make this n. Id. *5-*6 & arguing per- that the California court had Third, 2006 WL at & n. 2. jurisdiction sonal over the Defendants. District Court found that “BBI will suffer absolutely prejudice no should the Court April On the District Court for *7, order vacatur.” Id. at 2006 WL Jersey the District of New issued Weighing at *2. these three fac- Opinion response par- and Order tors, the District Court concluded that va- Budget ties’ motions. See Blinds *7-*8, appropriate. catur was Id. at White, 05-CV-388, No. 2006 U.S. Dist. 891187, at *2. WL (D.N.J. LEXIS 2006 WL 891187 2006). Apr.5, resolving Instead of though Even the briefs of both issue, the District jurisdiction, had on personal focused Court vacated the default under Jersey New District Court did not decide 60(b)(6), Federal Rule of Civil Procedure issue, explaining this in a footnote that provides: just which motion “On pass “[t]he Court need not on whether the terms, the court relieve a or its actually possessed California district court legal representative from a final personal jurisdiction pur- over White for ment, order, proceeding ... poses inquiry. of a Rule It justifies other reason that relief.” To de- enough to possessed know that White 60(b)(6) issue, cide the Rule District argument more than a colorable that the employed three-part Court test derived personal jurisdiction.” district court lacked Casualty Surety Harad Aetna & Id. at *6 n. *2 WL n. 2. Co., (3d Cir.1988): 839 F.2d 979 “When did, however, The District “grant Court determining whether to vacate a default BBI’s reasonable legal fees and costs asso- judgment, a court should consider the fol- ciated with obtaining the default (1) lowing factors: whether the defendant defense; has meritorious whether Court,” in part prudent because “a attor- culpable conduct of the defendant led to ney” would have responded to BBI’s com- default; the whether plaintiff the plaint despite his or her belief that the Blinds, prejudiced.” will be Budget 2006 California district court lacked 17207, *4, U.S. Dist. at LEXIS 2006 WL jurisdiction. *8, 891187, Id. at 2006 WL at 891187, Harad, (citing at *1 839 F.2d at *2. Accordingly, the District Court direct- 982). First, the District Court found that submit, ed BBI to days within 10 of the the Defendants had an “extremely” meri- Order, an affidavit setting forth the details defense, torious stating: “The facts estab- of the fees expended. and costs lish that fully complied White with her 5, 2006, May On BBI timely filed a obligations under the agree- settlement notice of appeal portion of the of the Dis- ment and provision therefore the [in the trict Court’s Order that Agreement] is, vacated the Cali- staying litigation all most 29, fornia default likely, still in On June effect.” 2006 U.S. Dist. 2006, 17207, *5, 891187, Jersey LEXIS at the New District 2006 WL Court Second, stayed *2. application the District BBI’s for Court concluded fees and costs culpability “arguably pending factor resolution of appeal. bene- this The fits party” jurisdiction either District because White had Court had over the “more than a argument registration colorable that the and enforcement of a foreign district court personal jurisdiction” lacked judgment pursuant § to 28 U.S.C. 1963 (2000), but it would “prudent” have been her jurisdiction for and we have over BBI’s a court that allows Rule to 28 in pursuant a final order of appeal “any (2000). from of relieve part § 1291 The U.S.C. justifies relief’ aside reason that vacating the default Order District Court’s circumstances de- meaning specific of the more “final” within judgment is 60(b)(l)-(5). We the amount in Rules review 1291, fact that scribed despite the § of relief under Rule grants unresolved. or denials attorneys’ fees remains 60(b), 860 F.2d raised under Rule Corp., from those Doering Equip. v. aside Frangos Cir.1988) (3d Budinich v. (citing 60(b)(4),5 abuse of discretion 70, under an 199, Dickinson, Martin, 486 U.S. See Harris Becton standard. (1988)). (3d Cir.1987). 1717, 100 L.Ed.2d 178 S.Ct. filed the Defendants May On invoke of a court to power The part of the cross-appeal of the

notice 60(b) earlier is to vacate its own BBI. and costs to fees that awarded Order below, As discuss how- unquestioned. we ex party questioned Although neither ever, a court has the unclear whether it is this jurisdiction over appellate istence 60(b) to vacate power to invoke Rule Order, note we portion which the when the quantified the has not Court District (the “registering registered fees, has attorneys’ “[i]t amount court”) from the court that is different that this in this circuit been the rule long (the “rendering entered to examine lacks court”). 55(c) in the text of Rule Nothing where attorneys’ fee award anof merits 60(b) registering that a suggests or Rule quantified.” has not been the award vacate power court lacks will vacate F.2d at 72. We Frangos, 860 court, rendering but ment of a different consid and costs without of fees the award below, sug- have discuss several District Court its merits. The ering otherwise. gested its “inherent under the award granted 60(b) categorical terms rule impose decline to establish under Rule We power courts lack judg registering of a opening stating upon and conditions to vacate Dist. LEXIS to use power 2006 U.S. ment.” courts, but we em- rendering Felici *8, (quoting judgments at *2 2006 WL Co., courts should ex- Tooling phasize ano Reliant Cir.1982)). very limited only under (3d By vacating power the Order ercise these when a court con- we vacate judgment, circumstances. Even opening “extraordinary judgment, sidering its own as well. conditions justify present be must circumstances” II. provi- catch-all Rule use of the See, e.g., judgment. vacate the sion to Procedure Federal Rule Civil 535-36, Crosby, 545 U.S. 55(c) aside a Gonzalez “may a court set states that (2005) 60(b).” L.Ed.2d Rule 125 S.Ct. judgment under Rule default States, 340 v. United (citing Ackermann 60(b) a “court which six reasons for lists 95 L.Ed. 71 S.Ct. representa U.S. legal a or may party relieve its (1950)). considering court is order, When pro or judgment, a final tive from judg- court’s another to vacate whether provision ceeding,” including catch-all Cir.1986). (3d Schweiker, we review de- plenary when 5. Our review is Page v. under Rule terminations 60(b)(6), registered ment under Rule these circum- judgment the District Hampshire stances must be even more “extraordi- Court for the District of New nary” pursuant § because of the additional interest in to 28 U.S.C. and at- tempted to attach comity among Conproco’s Hamp- the federal district New courts. shire’s bank account. Id. Instead of exactly We need not decide how “extraor- di- rectly appealing the dinary” judgment moving or justify circumstance must be to aside, rendering court to set it the vacatur Con- judgment. of another court’s proco moved in the Hamp- District New The circumstances instant case judgment shire to set aside the under Rule extraordinary enough would not even 60(b)(6), and Rule claiming that justify a court’s decision to vacate own its judgment “the default was due to inadver- follows, fortiori, they It neglect.” tence and Id. 247-48. The extraordinary enough justify are not Hampshire New granted district court vacating of another court. Conproco’s finding motion after that Con- proco had a valid defense and that A. default judgment was not the fault of Con- held, Several circuits have either or stat- proco or its Id. at counsel. 248. The dicta, power ed aof federal reversed, First Circuit explaining that district court to set aside another district “there are indications that the drafters of court’s is limited. the Rule intended to prac- restrict motion 60(b) In Indian Head National Bank v. Bru tice under to the court which ren- nelle, (1st Cir.1982), 689 F.2d 245 judgment,”6 the First dered and that deference to registration Circuit held that “a rendering court errs promotes comity 60(b) entertaining courts, a Rule motion among judicial federal efficient ad- (in alleges neither a void for lack of light ministration rendering jurisdiction nor grounds issues), familiarity court’s with the support independent equitable simplified judgments. collection of Id. The Head, action.” Id. at 251-52. In Indian First Circuit said that 60(b) the District for the Court Eastern grant District relief from a differ- Pennsylvania judg rendered default rendering ent court’s only two defendant, ment against Conproeo first, request situations: when the for re- Corporation. Id. at 247. plaintiff The grounds lief is based on that could also pointed 60(d): 6. The Circuit following First “This rule does not limit a court’s language advisory committee (1) notes to power independent to: entertain an action 60(b): the 1946 amendment that created Rule order, judgment, to relieve a from a or types procedure Two to obtain (2) relief proceeding; grant relief under 28 U.S.C. judgments specified are in the rules as § personally 1655 to a defendant who was not proposed proce- to amend them. One action; notified of the set aside a by dure is motion in the court and in the ment for fraud on the court.” 689 F.2d at action in which the was rendered. 248-49 & n. 7. These actions had been avail- procedure The other a new or inde- rendering able in both the court and other pendent judg- to obtain action relief from a courts even before the Rule’s enactment. Id. ment, may may which action or not be Circuit, According to the First the first the begun in the court which rendered the "types procedure” two ais reference to 60(b) practice, Rule motion and the commit- (citing 689 F.2d at 248 Fed.R.Civ.P. 60 adviso- language understanding tee’s reflects its that note). ry committee The First Circuit ex- procedure this would be limited to the render- plained procedure” that the "other ais refer- ing court. See id. language ence appears that now under deprive it of its action, ment’s enforcement equitable independent support second, a in Indiana district court. only when the effect & n. id. 249-50 judgment a from default for Id. request relief 60(b)(4), id. at 250-51. Rule under

is made circuits have suggested Several not fit did for relief request Conproco’s 60(b) gener motions should that Rule dicta the First Circuit so categories, into these court, rendering made the ally be before district court of the judgment the reversed adopted rigid require a they have but not Id. at 252. the relief. granting Industries, Inc. v. Covington In ment. further went The Seventh Circuit (2d Cir.1980), A.G., 629 F.2d 730 Resintex Erectors, Inc., v. Elite Trustees Board of registering held that a the Circuit Second (7th Cir.2000), concluding F.3d 1031 60(b)(4) to vacate invoke Rule court could may district rendering a court lack of rendering court’s of another “modify annul” or suggested register it jurisdiction, but Rule any provision court under district when more restrained courts be ing should Id. at 60(b), including Rule 60(b). of Rule other sections applying a default involved Elite Erectors (“In case, the usual F.2d at 733 for the District Court rendered in familiar be more of rendition will court plain- Virginia Eastern District registra the court of the facts than with in the District Court sought to enforce tiffs conversant with perhaps more tion Id. of Indiana. District for the Southern law.”). In Morris ex rel. Rector applicable moved The defendants at 1033. (10th Cir.1989), Peterson, 871 F.2d 948 v. judg- to annul court Indiana district Head for cited Indian the Tenth Circuit 60(b)(4) ground on the Rule under ment court registration that a general “the rule rendering court lacked 60(b) Rule motions usually ... defers on Id. The Seventh over them. ...,” rendering the court any request to annul held that Circuit exception Head’s applied then Indian but 60(b) “must under Rule modify judgment 60(b)(4) Peterson, 871 motions. for Rule rendering court.” Id. presented Head, (citing Indian 950-51 n. F.2d at & explain proceeded It 251-52). Mac Harper In F.2d at court Virginia district whom the against Keaty, 260 F.3d Keaty & leod Solicitors to resist “are entitled entered judgment (5th Cir.2001), held the Fifth Circuit if, if, only in Indiana but enforcement Rule invoke registering that a East- for the District Court United States judg rendering court’s to vacate personal or Virginia lacked ern District of that a dicta expressed but doubt ment Id. at 1035. jurisdiction.” subject-matter do the court could same registering that “re- But Circuit indicated the Seventh 60(b). at 395 See id. Rule other sections of sisting enforcement” among dis comity efficiency and (“judicial “formally not the same Indiana was counsel trict often 60(b)(4).”7 Id. at it annulling under 60(b) motions ruling on Rule to defer annulling is that 1034. The difference court....”). rendering in favor of its effect deprive judgment would (9th Aaronian, Cir. 93 F.3d 636 court, FDIC rendering forums, including the all “[rjegis- 1996), said that the Ninth Circuit successfully resisting whereas 1994), authori- conclusion, "We note that the which Circuit said: the Seventh Despite registration court to entertain ty of the earlier decision explicitly overrule its did not well appears to be under motion Southern Districts re Eastern & in In Joint (7th n. 15. at 762 Id. Cir. established.” Litigation, 22 F.3d 755 Asbestos (1949), tering generally prefer courts litigants to situations that are not addressed 60(b). bring postjudgment motions for the other five clauses of relief 60(b)(6) court,” The of Rule apparently drafters rendering but it concluded that recognized that provision a catch-all it was for a proper registering court necessary, be since it would be impossible challenge entertain to a rendering specify all of the scenarios in which judgment ground court’s on the justice might require vacatur of a judg- judgment was unconstitutional and there- ment. Given the catch-all nature of Rule fore void.8 Id. 649. 60(b)(6), we not think do it would be persuaded by We are reasoning adopt wise to that categorically rule for- First, Second, Fifth, Seventh, Ninth, bids vacating district courts from judg- they and Tenth Circuits to the extent that ments of other district courts under this 60(b) (other conclude that Rule motions provision.10 Although the interest in comi- 60(b)(4)) than motions under Rule should ty usually will make it inadvisable for a generally be raised in the rendering court. registering to vacate a rendering Nonetheless, regis we decline to hold that judgment, court’s we cannot rule out the tering power courts lack all situa possibility that some set of facts will cause 60(b)(6) tions to invoke Rule to set aside injustice of enforcing a rendering judgments.9 Rule exists so that court’s judgment great to be so as to out- may “vacate judgments whenever weigh damage setting aside the appropriate such action is accomplish upon comity.12 would inflict We States, justice,” Klapprott v. United 335 need not decide here what facts would be sufficient, U.S. however, S.Ct. 93 L.Ed. 266 because it is clear that decision, 8. In an earlier the Ninth Circuit use Rule to vacate the 60(b) indicated that at least some Rule mo- of another jurisdic- court that lacked brought rendering tions must be in the court. tion. See id. at 250-51. Beverages, Royal In First Co., Inc. v. Crown Cola (9th Cir.1980), 612 F.2d 1164 the Ninth 11. When is not a default proper approach Circuit said: "The to seek- ment, an additional interest exists: efficient ing relief change because aof judicial resulting administration from the ren- surrounding factual circumstances this dering greater familiarity court's with the 60(b) case would be to make a Rule motion or Head, facts. See Indian 689 F.2d at 248. reopen a motion proof. to hear additional however, judgment, With a default the render- Such motions must be directed in the first ing unlikely any greater to have instance to the district court.” Id. at 1172. knowledge registering of the facts than the Aaronian Beverages. does not cite First Transp. court. See On Track v. Lakeside Ware- opinion We do not consider in whether Trucking, house & 245 F.R.D. power court ever has to set (E.D.Pa.2007). 60(b)(1), judgments (2), (3), aside under Rules (5). Any probably such set of facts would "indepen- sufficient to form the basis of an 10. We also do language think that the .not equitable dent meaning action” within the committee, advisory as discussed in Indi- exception that the First Circuit described Head, an requires 689 F.2d at such a in Indian Head. See 689 F.2d at 249 & n. 8. rule. advisory The words of the committee We need possi- not decide here whether it is Rule, important are not as as the text of the ble court to be confronted with a set of imposes which no limitations on a court’s support independent facts that could not ability to set aside another court’s equitable Moreover, action justify but could nonetheless though we note that even the First vacating another court's weight under Rule advisory Circuit afforded com- language, mittee’s literally, it did not follow it acknowledged since Indian Head that a court

255 then it judgments, follows finality of the far short case fall the instant facts of outweigh cannot the circumstances that of a vacatur justify necessary to what of finality combined the interest Rule under judgment court’s rendering comity. interest 60(b)(6). showing that a explained We have

B. a involves extraordinary circumstances of judg from 60(b)(6) relief showing that without of Rule the text Although hard ment, ‘unexpected’ “an ‘extreme’ relief may grant that a simply states F.2d at 558 Mayberry, result.” ship will rea “any judgment for from a final may “hardship” requirement This 1163. relief,” added courts have justifies that son satisfied when sometimes be Rule seeking party requirement on the merits.” adjudication “precluded exis demonstrate must relief Health, Educ. Wel Sec’y & Boughner v. “extraordinary circumstances”13 of of tence Cir.1978). (3d But F.2d 978 fare, 572 See, judgment. justify reopening rarely exist extraordinary circumstances 535-36, 125 S.Ct. at 545 U.S. Crosby, e.g., from seeks relief when Ackermann, 340 U.S. (citing 2641 deliberate party’s from that resulted Hobgood, 209); Indus. Coltec 71 S.Ct. Coltec, 274 See, F.3d at e.g., choices.14 Cir.2002) (3d In (quoting F.3d favorably on (“[CJourts not looked have F.2d Litig., 840 Paper Antitrust re Fine escape to trying of the entreaties Cir.1988)). (3d requirement This 188, 194 ‘counseled of their own consequences lan the broad to balance in order exists decisions.”); also see knowledgeable’ 60(b)(6), which allows Rule guage of 198-99, 71 S.Ct. Ackermann, 340 U.S. at “any” reason judgments to set aside exis show the could not (petitioner relief, with the interest justifying when extraordinary circumstances tence Pa In re Fine finality judgments. appeal due voluntarily chose not he 194-95; F.2d at Litig., 840 per Antitrust appeal that an expenses the modest 1159, 1163 Maroney, 558 Mayberry v. require). above, Cir.1977). (3d explained As we Jersey case, the New court considers In the instant when court, the “ex mention did not district District Court of a different requirement traordinary another circumstances” to vacate use of Rule de acknowledge that our opinion. We an additional its implicates court’s contributed in Harad have cision if the comity, even interest signals to confusing sending by circum this error If the judgment. awas default the standards regarding Court sufficiently “ex the District are not a case stances of Har- In a default vacating in for outweigh interest traordinary” to 60(b)(6) to we invoked “extraordinary Boughner, terms uses the 13. Our circuit judgment re- an adverse “exceptional appellants circum relieve circumstances” discussing their attor- acts of interchangeably when the intentional sulting stances” See, Lasky e.g., only v. Continental so did But ney. at 979. 572 F.2d 1986) (3d Cir. Corp., 804 F.2d attorney’s Prods. "egregious finding after paragraph); the same (using terms in both leaving nothing short of conduct amounted Health, Welfare, & Sec’y Educ. Boughner Given unrepresented.” Id. clients his (3d 1978) (concluding Cir. "appellants setting, we held this factual sufficiently here are circumstances "the attorney for their the acts are not bound man extraordinary as to so exceptional and at 978. Id. purposes of the rule.” ”). 60(b)(6).... pursuant to Rule date relief 256

ad, we reversed the district court’s deci- fault judgment on January 14. Id. Aetna sion not to vacate its own earlier default moved to vacate judgment, the default 839 F.2d at We stated parties stipulated that the issue to sole that “the decision to vacate a default judg- be addressed on the motion was whether ment is left sound discretion of the Aetna had established a meritorious de court,” trial but that exercising “[i]n fense to the plaintiffs’ action. Id. The discretion ... the court must consider district court then declined to vacate the whether vacating the default judgment will default judgment, reversed, but we con prejudice visit plaintiff, on the whether the cluding that Aetna had a meritorious de defense, defendant has a meritorious and fense. Id. at 985. Although neither the whether the default was the result of the district opinion, court’s see Harad v. Aetna culpable defendant’s conduct.” Id. at 982. Co., Cas. & 86-cv7266, Sur. No. 1987 WL Harad makes no any reference in clause (E.D.Pa. 9, 1987), 12290 June opin nor our 60(b), Rule nor does it consider whether ion cited Federal Rule of Civil Proce “extraordinary pres- circumstances” were dure, we see least two reasons con Thus, ent. Harad have created the struing grant Harad as a of relief under erroneous impression that exception 60(b)(1), Rule which allows relief from a the “extraordinary require- circumstances” “mistake, on the basis of inad ment exists when a district court is consid- vertence, surprise, or neglect,” excusable ering whether to vacate a default 60(b)(6). rather than First, the facts ment, as opposed to a judgment on the case, the complaint with sent to the merits. wrong office apparent delay and the in docketing entry appearance, suggest

A closer look at Harad reveals that its “mistake, this was a matter of inad test was not intended to apply to Rule vertence, surprise, or 60(b)(6). neglect.” excusable Harad involved a complaint filed Second, Harad (Charles three-part obtains its test by Harad) an attorney and one of directly $55,518.05 from United States v. his companies (Home), insurance against (3d in Currency, U.S. (Aet- another of his Cir. companies insurance 1984), na), case that addresses seeking declaratory Harad, Aetna duty had a 839 F.2d at (citing defend indemnify $55,518.05 Harad. F.2d at Currency, U.S. On 728 F.2d at December 195). 23,1986, $55,518.05 Harad and Home served the com- U.S. Currency, we plaint on Aetna its said: office rath- Hartford er than the Philadelphia office which require We the district court to consider they negotiated had previously. Id. The the following factors exercising its Hartford office forwarded complaint discretion in granting denying a mo- office, the Philadelphia and Aetna entered tion to set aside a default under Rule an appearance with the District Court for 55(c) or a judgment under Rule default the Eastern District Pennsylvania on 60(b)(1): (1) plaintiff whether the will be January day the same that Harad (2) prejudiced; whether the defendant and Home filed a request for a default defense; has a meritorious whether

judgment. The district court docketed the the default was the result of the defen- default request January on culpable dant’s conduct. entry and the appearance on January granted $55,518.05 then request for de- Currency, U.S. 728 F.2d at First, the default think that we added).15 Accordingly, (emphasis fairly described could be in Emcasco erred Court District conclude inadvertence, “mistake, sur- product factors listed the three solely relying The Em- neglect.”16 prise, excusable 60(b)(6). Rule relief under grant to Harad 14, January on court decided casco district Insur- Emcasco that assert Appellees a it would enter default that 1987 (3d Sambrick, 71 F.2d 834 v. Co. ance he unless filed the defendant against ment factors Cir.1987), the appropriate provides at F.2d 75. January 16. 834 by an answer default aside a to set deciding whether for counsel were and his But defendant Emcasco, applied we In judgment. and instead decision of this never informed Harad, used in that we factors three same they could erroneously told were alter- effectiveness a fourth —“the plus merely by enter- judgment a avert default 73. Emcasco Id. at sanctions.” native they did on Jan- which ing appearance, an 60(b) in its review facts, not cite Rule Emcasco these does Id. Given uary 15. Second, vacate a 60(b)(1) not decision court’s a Rule case. district inwas effect Harad, howev- cites in As with Emcasco cases that judgment. most of the default applica- are describing a test four-part its as support Emcasco er, construe at F.2d 73- See 834 Rule tions of a default vacating for standard a provide Thus, does not Emcasco 60(b)(6). 74.17 60(b)(1), Rule not Rule under Id. at 72-73. timely answer. a not file did $55,518.05 Currency three cited U.S. 15. 31, the still- EMCASCOserved 728 F.2d On December test. authority for this as its cases affidavit re- Compo with an First, unrepresented Sambrick v. Stereo it cites Gross at 195. (3d Inc., at 73. After judgment. Cir. Id. 120 questing 700 F.2d default Systems, nent counsel, 60(b)(1). See 700 district court 1983), applying Rule retained case Sambrick Second, Felici it cites EMCASCO 1. with telephone & n. conference at 121-22 F.2d held (3d Co., 653 Tooling F.2d 691 Sambrick but neither January v. Reliant ano on 60(b) it, as a 1982). applies Rule apparently participated Feliciano Cir. his nor counsel be During choose expressly declines Id. they not notified. whole were because 60(b)(6) as its conference, and Rule Rule court tween the district telephone Feliciano, F.2d at 691 See for relief. basis a default it would enter told EMCASCO suggests that Feliciano Although by 656. answer filed an unless Sambrick 60(b)(6), it might apply to three-part test his counsel January Id. Sambrick 16. holding. of its part make this does arrangement, but instead of this were not told Thus, stands that Feliciano think we do not they could avoid understand were led to three-part test proposition that the for counsel en- Sambrick's if a default 60(b)(6) inquiry. guide sufficient coun- which Sambrick’s appearance, an tered $55,518.05 Currency Farnese Third, cites in U.S. 16, January January On 15. Id. sel did Cir.1982). (3d 761 Bagnasco, 687 F.2d v. a default entered district to set whether with is concerned Famese court sub- Id. The district against Sambrick. to a opposed "entry of default” aside to set motion rejected sequently Sambrick's Bagnasco, judgment.” See Famese "default judgment. Id. the default aside (citing Fed.R.Civ.P. 55(c) at 763-64 F.2d 687 entry of aside an set (stating that a test, Emcasco support of its four-factor 17.In cause”)). good default "for (cit 73-74 at See 834 F.2d cases. nine cites Castro, 822 de Bueno v. Bueno ing Zawadski by an insurance a suit involved Emcasco Cir.1987); (3d Scarborough 416, 419-20 F.2d (EMCASCO) against an insured company (3d Eubanks, Cir. 875-78 747 F.2d Sambrick) declaratory (Louis Corp., F.2d 1984); 732 v. Woma Hritz cover policy did not stating insurance that the $55,518.05 1984); U.S. Cur (3d Cir. allegedly had injuries that Sambrick MacMeekin, 194-95; re at rency, 728 F.2d at F.2d people. 834 on two inflicted Gross, 1983); (3d Cir. F.2d its Sambrick EMCASCO served 656; Feliciano, 122; Far F.2d at Sam- but December complaint on 764; Donnelly v. Johns- nese, counsel, 687 F.2d by brick, represented was not who applicable test to a Rule fy as an “extraordinary circumstance” suf- motion. ficient justify setting any judg- aside ment, let alone one entered a different

We acknowledge that default judgments court, we will vacate the District Court’s are generally disfavored our circuit. setting Order aside the default $55,518.05 Currency, U.S. (“[Tjhis at 194-95 court does not favor

entry of defaults or judgments. default III. require We doubtful cases to be resolved We next confront a question paral- in favor of moving to set aside lels the one we addressed about Rule the default judgment may ‘so that cases 60(b)(6): does a federal district court have ” decided on their merits.’ (quoting Tozer power to consider a motion to vacate Co., Charles A. Krause Milling another district court’s judgment under (3d Cir.1951))). 244 But we cannot 60(b)(4) Rule ground on the that the latter apply this presumption against default court lacked personal over the judgments if doing so would be inconsis- defendant? party Neither has contended tent with the Federal Rules Civil Proce- that the District Court power. lacks this dure or our case law interpreting these Nevertheless, explain we will why we hold Rules. Because “extraordinary circum- power that this exists. stances” are grant essential for a of Rule 60(b)(6) relief, a case does not become 60(b)(4) allows a court to re “doubtful” when the district court has lieve a party from a final if judgment “the made no attempt to show such cir- judgment A judgment void.” is void cumstances exist. within 60(b)(4) the meaning of Rule if the

Finally, court that our own review rendered it personal ju of the lacked record does not risdiction suggest that the over the circumstances of defendant. See Mar this case are shall v. “extraordinary” of Educ., (3d Bd. as we 575 have 422 F.2d Cir.1978). defined this term in our Although case The question law. there is no Defendants acknowledge that a their court grant 60(b)(4) deci- a Rule sion not to contest the motion judgment California to vacate one of its judgments, own was the result of a deliberate we have not explicitly choice. ruled on whether a Thus, the judgment default cannot court be said has power grant a Rule to have an “unexpected created hardship.” motion to vacate another court’s Boughner, 572 F.2d at judgment Since for lack personal jurisdict Cf. nothing else in the record appears quali- ion.18 Manville Corp., (3d 677 Sales F.2d 342 appeals grants of dismissal under Rule Cir.1982)). We have already discussed appeals granting a denying of decision $55,518.05 Gross, Feliciano, Currency, in U.S. a motion to set aside previously-entered a supra Famese. See note 15. Zawadski is default Scarborough, 747 F.2d at expressly on neglect” based the “excusable 874-75; Donnelly, 677 F.2d at 340-41. Simi- 60(b)(1). factor of Rule 822 F.2d at 417-18 & larly, MacMeekin is a appeal direct of a dis- n. opinion 1. Our 60(b) refers to Rule Hritz missal under Rule 37. 722 at F.2d 34-36. as a whole rather than of the six clauses. Hritz, 3; See 732 F.2d at 1182 n. see also id. Co., 18. In In re Display Sign Universal & 541 (Garth, J., at 1186 n. 1 concurring). The (3d Cir.1976), F.2d 142 register- allowed a Hritz, opinion however, district court’s ing 60(b)(4) motion, court to consider Rule makes clear that the being appealed order but we noted seeking to enforce

was based on Rule See Hritz objected had not register- Corp., Woma (W.D.Pa. 92 F.R.D. 366 ing power court’s to do so. Id. at 143 n. 6. 1981). Scarborough Donnelly are direct leaving the hold- either stated circuits have Five —while en- can jurisdictions that other so has place registering dicta that ings or District the Eastern id. As force it. See motion. a Rule to hear power Track, in On Pennsylvania noted held that explicitly circuits these Three of solution. a default “impracticable” may vacate registering rendering court If the when 219-20. rendering court F.R.D. at aof it jurisdic- then judgment, default merely lacked issued rendering court Covington, person- the issue actually litigated over defendant. never tion Circuit); (Second Harper contrast, register- jurisdiction. 732-34 al F.2d (Fifth Cir- litigated at 394-95 Macleod, actually F.3d will have ing court 2n. Peterson, & cuit); court’s Thus, issue. en- Circuit). First Circuit effect, The (Tenth preclusive have ment will dicta, circuits of these rendering the view dorsed move the then “could defendant 60(b)(4) challenges recognizing basis court to vacate two are one judgments to default using the deci- jurisdiction, lacked Rule rule that general to the exceptions offensively.” court registering sion the to 60(b) be addressed must motions result the to same This lead Id. Head, 689 See Indian rendering court. except judgment altogether, vacating the en- Circuit Ninth The 250-51. F.2d at expen- the along with step, one extra with va- to power court’s registering a dorsed step this that resources time and diture of under judgment court’s rendering a cate rea- no see Id. We would entail. holding addressed 60(b)(4), its but Rule circuits majority of the son to break challenge 60(b)(4) aon based motion Rule en- process cumbersome the and embrace rendering the constitutionality of Circuit. by the Seventh dorsed the render- rather than judgment court’s registering not think we do Finally, F.3d 93 jurisdiction. personal ing court’s interest threatens the seriously court Dis- the Eastern that noteWe at 639-40. rendering court’s it vacates comity when a thor- produced has Pennsylvania trict of 60(b)(4) for Rule under default in On opinion well-reasoned and ough ren- If the jurisdiction. personal Lakeside lack of Inc. v. Transportation, Track juris- personal have Inc., did not dering 245 F.R.D. court Trucking, & Warehouse merely not was diction, that (E.D.Pa.2007), it held then in which 213 en- have been should erroneous; to decide it never the power has court registering Moreover, when a render- challenging place. first tered Rule motion lack of enters a rendering court court’s default ing default party’s at 214-23. Id. one jurisdiction. nothing but matter on subject based ment no risk that is there appear, to failure on an outlier The Seventh Circuit on conclusions opposite reach will above, the Seventh weAs discussed issue. render- because jurisdiction personal Erectors in Elite concluded Circuit to address required was ing court disre- free “was court registering Track as the On Finally, issue. formally an- without judgment, gard the against balanced noted, comity “must 60(b)(4), if the ren- Rule it under nulling defen- ‘[a] principle longstanding subject- [personal court lacked dering judicial ignore free always dant 1034-35. jurisdiction.” matter] judgment, default risk a proceedings, annul court cannot Because jurisdic- challenge that then 60(b)(4), the under ” proceeding.’ collateral in a grounds tional enforce is decline can do most it 245 F.R.D. (citing Corp. Ins. long-arm California’s statute and if that Ir., Ltd. v. Compagnie des Bauxites de exercise of accords with feder- Guinee, 694, 706, 456 U.S. 102 S.Ct. al constitutional process due principles.” (1982)). 72 L.Ed.2d 492 The princi latter Fireman’s Fund Ins. Co. v. Nat’l Bank of ple would be undermined if we held that (9th Coops., Cir.1996). 103 F.3d only actions could be brought California’s long-arm provides statute sim- rendering allegedly ply that the court may exercise personal jurisdiction lacked over the defen jurisdiction “over a non-resident defendant dant. on any basis not inconsistent with the Cali- fornia or federal Constitution.” (citing Id. IV. 410.10). § “The statu- Cal.Code Civ. Peoc. We now reach the question tory constitutional requirements parties originally asked the District Court merge therefore into a single process due to address: whether the California district test,” requires which the defendant court possessed personal jurisdiction over “have certain minimum contacts with [the the Defendants. We power have the forum] such that the maintenance of the ourselves, resolve this issue rather than suit does not offend traditional notions of remand it Court, to the District because play fair (cit- justice.” substantial Id. we conduct de novo jurisdictional review of ing Int’l Shoe Co. v. Washington, 326 U.S. issues raised under Rule 66 S.Ct. L.Ed. Page Schweiker, (3d 152 (internal quotation omitted)). As par- both Cir.1986). Both parties have informed us ties acknowledge, we determine whether in their briefs and at argument oral that requirement this is by applying satisfied they prefer that we resolve the issue three-part test. test, The three-part as rather than it. Unfortunately, remand we summarized Panavision International so, are unable to do because we find that v. Toeppen, (9th 141 Cir.1998), F.3d 1316 is the existence of jurisdiction turns as follows: on disputed questions of fact that should by resolved Therefore, factfinder. we (1) The nonresident defendant must do remand the matter to Court, the District some act or consummate some transac- with hope that the District Court will tion with the forum perform or some act resolve this matter as promptly and as by which he purposefully avails himself inexpensively possible. as of the privilege of conducting activities provide Below we an overview per forum, in the thereby invoking the bene- jurisdiction sonal case, issues in point this fits and protections (2) laws; of its ing out what we believe key are the factual claim must be one which arises out disputes. results from the defendant’s forum-re- activities; (3) lated and juris- exercise of

A. Personal Jurisdiction in California diction must be reasonable. “In diversity action, [a Califor nia federal (citation district 141 omitted). F.3d at court] exercise 1320 BBI personal jurisdiction over a non-resident contends all three of require- these if defendant is proper under ments were satisfied as a matter of law.19 19. argues BBI only “specific jurisdic- “general jurisdiction.” existence of tion” exists and prove does not seek to

261 foreseeability of reasonable and the State Availment Purposeful B. 471 there.” U.S. litigation possible purposefully- has White asserts BBI consid- therefore We must 2174. 105 S.Ct. conduct- privilege of herself availed decide how we can before factors er other thereby has and California ing activities provision. afford weight to much law. of California benefits invoked Defen Second, out points the Settlement BBI argument its BBI bases Agree al- the Settlement Defendants’ negotiated as dants as well Agreement Califor mail with and infringement. telephone ment trademark leged attorneys. Br. its and BBI nia-based Through Availment Purposeful law, California Interpreting Appellant Agreement The Settlement that, ordinarily, has said Circuit the Ninth do “simply telephone a contract and the mails use of existence The mere invoking activity contacts. purposeful minimum qualify to establish insufficient Rudzewicz, the [forum] 471 U.S. protection Corp. and King benefits Burger F.2d 942 Marquez, L.Ed.2d Roth v. Garcia S.Ct. state.” Cir.1991) P. an Thos. (9th indi (“If (quoting is whether question De Consejo Nacional out-of-state Corp. with an contract Gonzalez vidual’s Rica, sufficient automatically establish Costa De can Produccion alone Moreover, party’s Cir.1980)). impor (9th contacts minimum clearly negotiations the answer forum, believe between distinction tant home cannot.”). in the instant case But contract King and those Burger is that actively between step King defendant Burger an intermediate is that typically transactions, compa negotiations future with contract negotiations past sought state, “it is these whereas the forum King instructs ny based in Burger contem Cali anyone out negotiations not reach did prior White factors — along litigation. consequences, threatened until BBI future fornia plated 479, 105 S.Ct. actu parties’ at and 471 U.S. King, contract Burger of the terms operating be evaluat option must of dealing (“Eschewing the of al course —that defendant Rudzewicz enterprise, local determining whether independent ed Michi beyond’ contacts minimum out deliberately ‘[reached] established purposefully corpora 105 S.Ct. a Florida with negotiated Id. the forum.” and gan with fran of aspects long-term of a several argues purchase that BBI for 2174. tion terms, well that would as benefits Agreement’s manifold chise the Settlement fu nationwide contemplated with a affiliation negotiations from prior derive con minimum create consequences, organization.”). ture tacts. Defendants that the Third, BBI asserts “by accept- contacts minimum established out

First, points BBI which was payment BBI’s ing settlement clause a choice-of-law contains Agreement to defen- bank a California from and wired by governed be “will it stating under- 41. To Appellant Br. of dants.” of State of the the laws under construed BBI payment, of this importance score As Appellant Br. of California.” District the Southern a case cites out, a choice-of-law King points Burger Co. Assurance Medical Mississippi, insuffi “standing alone provision Jackson, F.Supp. 576 Mississippi combined but jurisdiction,” confer cient a suit involved (S.D.Miss.1994). Jackson par a factors, may reinforce it with medical Mississippi-based a brought the forum affiliation “deliberate ty’s malpractice company insurance against accepting settlement agreement, they did two Moore, Alabama residents: the victim not initiate the transaction by threatening of a operation botched in Mississippi sue company.20 Also, California created a need for additional whereas surgery; and Moore traveled had to Mississippi Jackson, attorney. Moore’s Id. at for surgery performed by a Mississippi Jackson doctor, threatened to sue the 864 F.Supp. insurance White had not company on Moore’s any behalf and directed demanded activities toward California $1,100,000 settlement. Id. before BBI Thus, “a After ser- contacted her. if even ies of calls,” regard letters and telephone persuasive Jackson as Moore authori- agreed ty, to a $56,250 settlement does not compel finding from the of purpose- ful insurance company in availment. exchange for an ab- solute release. Id. Jackson and Moore Fourth, BBI argues parties that the con- accepted negotiated $56,250 check templated consequences. future Among that the company tendered, insurance but other things, Agreement states that they refused to execute the absolute re- the Defendants “hereby irrevocably ap- lease that company had also sent them. point BBI as their respective lawful attor- They Id. returned an altered version of the ney-in-fact with authority any to file docu- release form instead. Id. at 578. The ment in the name and on behalf of [the insurance company sued Jackson and Defendants] purpose taking Moore a Mississippi federal district required actions by [Section 4 of the court, alleging breach of the settlement Agreement] upon the event aof default.” agreement. Id. at 578. Jackson and We agree that the attorney-in-fact provi- Moore claimed per- lacked sion suggests that contemplat- sonal over them because the ed future consequences to some extent. insurance company had sent the payment Still, large gulf exists between the future and the release documents to Alabama. contacts contemplated by provision Id. rejected The court claim, their pointing and the extensive future contacts contem- out that “the check sent was from Missis- plated by Burger King contract. sippi and ultimately paid by was a Missis- Whereas the Burger King defendant “en- bank,” sippi release, that “the which is tered into a carefully structured 20-year central to this action” was sent from Mis- relationship that envisioned continuing and sissippi and was to be returned to Missis- wide-reaching contacts with Burger King sippi, and did, fact, “defendants Florida,” in 480, id. at 2174, 105 S.Ct. the return a [modified] release document” to Settlement Agreement merely describes Mississippi. Moreover, Id. the court what will happen in the event of default. pointed out that Jackson initiated the sum, In question whether of the transaction by threatening to sue the Mis- (the factors that BBI cites choice of law sissippi-based company. insurance Id. at clause, the mail and telephone negotia- 579. tions, acceptance the of the settlement Despite superficial some similarities, check, and the attorney-in-fact provision) Jackson is distinguishable. Although would individually support purposeful White and her attorney, like Moore and availment. The combined force of these Jackson, accepted payment from a bank factors, however, may be sufficient. On located forum the state exchange for the hand, other White has asserted that 20. attorney White's respond Nonetheless, did to BBI’s suit. it was BBI that set events warnings of a lawsuit with hints of a counter- in motion. state.” the forum likely to be suffered clause contained agreement original the Watts, 303 F.3d in Cali- Dole Food Co. jurisdiction personal consenting to Cir.2002) (9th (summarizing CaldePs White’s 1111 removed parties fornia test”). true, that we suggests this If “effects insistence. of the the terms to read

should hesitate infringe- trademark contends that BBI choice-of-law contract, especially intentional tort an ment “is treated as the “reasonable clause, indicative of as The first case jurisdictional purposes.” litigation” Cali- foreseeability possible is Se- proposition this cites for that BBI 471 U.S. court.21 fornia Russolillo, Int’l, 00- No. Inc. v. bastian fact, and we this 2174. BBI contests S.Ct. CM, Dist. 2000 U.S. LEXIS it in record evidence not have do Russolillo, 2000). (C.D.Cal. In Aug. affidavit and brief. than White’s trade- the defendant’s the court held that District Court Therefore, on remand sale through the infringement mark re- claim investigate White’s may wish to be- was “intentional” goods counterfeit since negotiations, the contract garding letter to had written a plaintiff cause the to which on the extent light shed could infringe- notice of the put the defendant relation- ongoing contemplated 21510, at Dist. LEXIS 2000 U.S. ment. California, possibil- including the ship is analo- that Russolillo BBI claims *13. litigation there.22 ity of case, in- BBI because the instant gous to Through infringe- Availment of their Purposeful 2. formed the Defendants Infringement settlement, and Trademark prior to ment in infringe- continuing them their informed al- the Defendants’ contends that BBI 1, 2005. The second February ment on per- infringement created leged trademark Panavision. BBI case cites because in California jurisdiction sonal although Panavision, stated that the court ac- directed their purposefully Defendants plain- registration the defendant’s Br. of Appel- that forum. toward tivities was a domain name as tiffs trademark “effects test” Relying on lant jurisdiction to establish sufficient Jones, 104 S.Ct. 465 U.S. Calder state, “scheme forum defendant’s (1984), says BBI 1482, L.Ed.2d 804 his trademarks plaintiffs] register [the if the defen- exists availment purposeful extorting purpose of (2) names for the domain act, “(1) an intentional committed dant intention- was an plaintiff state, money” at the forum expressly aimed state.23 at the forum directed al act knows causing harm that defendant the Dis- argument, BBI said that course, oral prove At could even if White 21.Of this unable to consider trict Court to consent to refused she violate it would because negotiations, evidence on remand during the in California contract here is But the rule. issue parol evidence events matter if the surround- would not contract, whether interpret the but to she how indicate that ing the contract otherwise requires an This exists. jurisdiction personal of that forum. purposely availed herself has Burger negotiations,” "prior however, inquiry into case, suggests we that BBI In this even 105 S.Ct. U.S. at King, 471 pro- clause as interpret the can choice-of-law the entire purports to be the contract litigation when acquiescence bative of White’s parties. court, agreement between are since California a California law than with California more familiar description of misleading provides a objected to a BBI specifically White courts. If Panavision, "ef- saying it held that that jurisdiction, consenting clause alleged plaintiff where test" is "satisfied interpretation fects against an us such this counsels to defendant's due infringement of trademark clause. choice-of-law F.3d 1322. The instant case distin- why is obvious change the failure to New guishable from both Russolillo Pana- Jersey telephone listings and to surrender Russolillo, vision. the court indicated a New Jersey telephone number is behav- that it explicit was the about ior warning “expressly aimed” at California. But trademark infringement, not the act of BBI relies on language in & Bancroft itself, counterfeiting National, rendered the de- Augusta Masters v. (9th fendant’s infringement trademark Cir.2000), “inten- which states that “the tional.” 2000 U.S. Dist. [‘expressly LEXIS aiming’] requirement is satis- Although *13. BBI also warning sent a fied when the alleged defendant is to have Defendants, suggests the record engaged wrongful targeted conduct at a in good Defendants acted faith plaintiff to rem- whom the defendant knows to be a edy alleged infringement. If this is resident of the forum state.” 223 F.3d at true, any ongoing then “infringement” was though 1086. Even al- Defendants’ not the result of intentional leged acts on the infringement was limited to activities Defendants’ part agree we Jersey, New implies that be- —unless Bancroft BBI’s claim that surrendering control of cause it targeted was at franchisees of the telephone absolutely BBI, number was nec- California, known “resident” of essary prevent further infringement. was expressly therefore aimed at Califor- Panavision Defendants, supports be- nia.24 But Panavision suggests contrary cause it makes clear that the mere use of result. Given the holding in Panavision party’s (i.e., another trademark registra- that the use of a company’s trademarks in tion of domain names and creation of web domain names and web sites is not “ex- sites) does not constitute an act pressly intentional aimed” at the forum in which the aimed at the forum state jurisdictional has company principal place its of busi- purposes. 141 F.3d at 1322. It possi- ness, 141 F.3d at question wheth- ble, however, the District Court’s er listings Jersey New telephone direc- findings of fact will reveal more about tories could be characterized as actions whether White’s behavior can be construed expressly aimed at California.

as “intentional.” BBI Finally, contends that the “brunt of

BBI also contends that the Defendants’ the harm” to its reputation profits behavior “expressly was aimed at the fo- felt in California because California is its rum state.” We do not find it immediately principal place of business.25 BBI argues plaintiffs use of trademark as domain name.” 24. Not all adopted ap circuits have directly contrary This is proach. example, For court's lan- the Tenth Circuit re guage quires requiring "something that "the forum state itself more” use must be the than tort’,” point 'focal of the approach of a that it trademark a domain name: has described as “somewhat more restrictive” agree simply We someone than Dudnikov v. Chalk & Vermil Bancroft. else’s trademark as a domain name and Arts, (10th Cir.2008) ion Fine 514 F.3d 1063 posting a web site on the Internet is not (citing Towne, Capital, Far West Inc. subject sufficient to domiciled in (10th Cir.1995)). one state to in another.... 25. The Ninth Circuit [Tjhere has overruled the "brunt ‘something must be more’ to dem- requirement, replacing harm” it with a onstrate that the defendant directed his ac- "jurisdictionally sufficient amount of harm” tivity Here, toward the forum state. requirement. Ligue Yahoo! Inc. v. La Contre has been shown. Racisme, (9th Le 433 F.3d Cir.

Panavision, (citation 141 F.3d at 1322 omit- 2006) ("We opportunity take this clarify ted). our and law to state that the 'brunt' of the requirements whether “minimum consider cor- BBI is California just because play of ‘fair concept sufficient inherent jurisdictionally poration, in defeat reason- justice’ is felt Califor- the harm substantial of economic amount Co. Ins. Servs. if defen- Rutsky & even the of nia. See Harris ableness Ltd., Clements, F.3d engaged & in forum purposefully v. Bell has dant Cir.2003) (for cor- (9th “a California at 477- King, 471 U.S. Burger activities.” business place of principal whose poration is a Although there 105 S.Ct. of the harm California, brunt ... the inis if of reasonableness” “strong presumption California.”). resolve cannot We in felt [is] Food, exists, Dole availment purposeful evidence. BBI’s without more this issue consider must still De- that the suggests complaint California factor. This separate aas reasonableness causing is infringement alleged fendants’ inquiry. California heavily fact-based is But a whole. BBI as harm to economic that affect rea- factors seven has identified March as of claimed White sonableness, are none of which determina- call single received had not company her tive: erroneous by the confused anyone from (1) pur- of the defendants’ extent eco- that little suggest listing, which into forum interjection poseful upon inflicted has been harm nomic (2) on the affairs; the burden state’s franchisees, na- let alone the Jersey New (3) forum; defending in the of factfinding, defendant entity. Without further tional sovereign- is with which the extent of conflict to decide impossible it is (4) state; felt the fo- effects ty the economic the defendants’ about correct adjudicating the in BBI California. rum state’s interest (5) judicial the most efficient dispute; Out Action Arise Does The Cause C. (6) controversy; of the resolution Activities? of Forum-Related plaintiffs forum to the of the importance three-part test prong The next re- and effective convenient interest the cause jurisdiction is whether specific alterna- of an lief; existence activi- out of forum-related action arises tive forum. require- this is a distinct Although ties. (citing F.3d at Rutsky, Harris is identical ment, analysis in this case AB, 11 Nobel Indus. Corp. v. Core-Vent analysis. availment” to the “purposeful Cir.1993)). (9th Most 1482, 1487-88 her White asserted that BBI has not without be resolved factors cannot of these to California company has connection For District Court. factfinding from the those associated aside might wish Court the District example, of contract for breach causes action light factor consider second Thus, if first infringement. trademark briefs throughout White’s statements satisfied, prong second then prong for a small extremely burdensome it is well. satisfied as Jersey with no in New California business Justice, Play and Substantial D. Fair (aside from, those perhaps, connections Reasonableness a.k.a. BBI) to dealings with through its created fifth To decide litigate California. Court finds If the District “focus factor, should the District Court satisfied, it must prongs the first two are might have been harm even more matter in the forum state. not be suffered harm need state.”). harm another amount of jurisdictionally suffered sufficient If state, it does in the forum is suffered 266

the location of the evidence and wit- fault judgment obtained juris in another Rutsky, nesses.” Harris 328 F.3d at 1133. diction on based challenge under If most of the evidence and witnesses are lying validity judgment. Sheet Jersey, located in New alleged where the Metal Workers’ Nat’l Pension Fund v. occurred, infringement weighs this factor Erectors, Inc., 1031, Elite 212 F.3d 1034 against personal jurisdiction in California. (7th Cir.2000) (“[a] party that simply re appear fuses to may contend in a later

V. case that the first jurisdic tribunal lacked We will April vacate the 2006 Order jurisdiction though only issue is tion— the District Court for the District of New preserved”) thus (emphasis in original); Jersey, including the assessment of fees Co., Yale v. Nat’l Indem. and costs. We remand this case so that (4th Cir.1979) 644 (“only judgments void may the District Court decide the question subject attack, are to collateral and [ ] a that the asked it to decide over two only void is one that is rendered

years ago: whether to set aside the Cali- by a lacking jurisdiction over the fornia default person- for lack of matter”); default or over subject see jurisdiction. al Ireland, also Ins. Corp. Ltd. Com pagnie Guinee, des Bauxites de 456 U.S. COWEN, Judge, Circuit concurring in 102 S.Ct. 72 L.Ed.2d 492 part and dissenting part. (1982) (“[a] always defendant is free to This case arises out of the context of a judicial ignore the proceedings, risk a de § 28 registration U.S.C. proceeding, judgment, fault and then challenge that fundamentally, more involves a collat- jurisdictional grounds in a eral foreign attack to a default proceeding”). this, collateral From it nat It is well-settled grounds that the for ob- urally follows that registering courts taining collateral relief are extremely limit- entertain motions to registered vacate for ed. majority, however, The holds that eign judgments pursuant 60(b)(4), to Rule power courts have the to va- on the basis that the rendering court foreign judgment cate a by rendered their jurisdiction. lacked See 12 James Wm. sister federal pursuant courts to Federal al., Moore et Moore’s Federal Practice Rule of Civil Procedure doing (3d § ed.1997); 60.60[3][c] 30 Am.Jur.2d so, it becomes the first court in nation Executions Judg Enforcement of to reach this conclusion. Because I think (“the § ments in which the this holding potentially creates a circuit registered may determine split before, where none existed and be- whether the court which judg entered the cause I question whether' such a broad ment had subject over the ruling necessary particular under the parties”). matter and certainly This is case, circumstances of this I respectfully view that expressly has been embraced dissent. nearly all26 of our sister circuits have us,

Under the circumstances before squarely one confronted the question, and I may only seek collaterally vacate a de- thus concur the majority’s opinion out, majority points 26. As only Fabe, the Sev- Mgmt. Reinsurance Corp. v. cific enth Circuit has held that registering (7th Cir.1991) ("[e]nforce- F.2d authority. lack such See Sheet Metal Workers' proceedings [pursuant ment §to 1963] do not Erectors, Inc., Nat'l Pension Fund Elite allow collateral judgment”). attacks on the (7th Cir.2000); see also Pa-

267 Wright, A. Ar- 11 Charles context.28 relatively uncontr- adopts itas insofar Kane, Kay Mary FedeRal law.27 thur R. Miller & Third Circuit position oversial (2d 2787, § at 36 & Procedure PRactice stop not However, does opinion the (“the ed.1995) squarely have not regis- hold that there, further to goes but all, extent, the court if at to what decided Rule also consider tering courts registered give can judgment a is in which judg- 60(b)(6) foreign to vacate motions Rule under relief from the “extraordinary cir- certain under ments 60(b)”); Nat’l Bank Nash- Indian Head of Here, ways part I must cumstances.” (1st Brunelle, F.2d 251 v. 689 ua it is colleagues. While majority my Cir.1982) nor (noting neither regis- of contours that the precise true single a case could find court itself 60(b) Rule authority grant to court’s tering willing registration was a court of “where unsettled, I nevertheless am remain relief 60(b) motion directly a Rule entertain considering ques- any of court unaware attacking a than one default affirmatively has today tion —before —that jurisdiction”). personal for lack of ment any authority to exist such declared confronting (b)(4) Indeed, directly only 60(b) outside subsection Rule rendering practiced on deception was expressly spoken on this We have never courts, Indeed, court”). when en numerous issue, certainly have prior decisions but our 60(b) requests based countering vacatur Rule power on the of such the existence assumed fraud, allegations mistake or excusable of on In re Univer- courts. See part of enforcement independent neglect, them as have construed Co., 143-44 Sign F.2d Display 541 sal & Assocs., E.g., Inc. equitable actions. Cir.1976) (3d (affirming registering court's Winfield (10th Stonecipher, 1090 429 F.2d 60(b)(4) defen- where relief denial of Rule motion, 60(b) 1970) (so construing Rule Cir. jurisdiction in litigated issue dants 60(b) avoiding question of "whether thus lost); Somportex Ltd. v. rendering court but a attacking proper ais means 435, 444 Corp., Chewing Gum 453 Phila. Court sit States District entered a United Cir.1972) (3d from (affirming denial of relief state”); Rumsey Hadden ting in another sought be en- English default 1952) (2d Products, Inc., 95 Cir. had Pennsylvania where defendants forced in Thus, (same). if the I would satisfied English jurisdiction in opportunity contest holding the Rule "extraordi here on forum). category is ex of relief nary circumstances” only circum those narrow pressly limited to course, that re- question, of 28. There no independent support an stances that would request for vacatur is gardless of whether But, majority’s view equitable action. 60(b), courts pursuant to Rule labeled as one 60(b)(6) authority is court’s grant if power relief possess the inherent not so limited. satisfy request grounds of the otherwise event, grounds to independent action in requirements an I note no (“[Rule 60(d) action exist equitable support independent 60] equity. See Fed.R.Civ.P. (1) here, clear to: makes power of affidavit since defendant’s does not limit 2 App. vol. to relieve was intentional. independent that her default entertain an action ¶¶ order, appear (attesting she did proceeding; judgment, or 15-16 party from a counsel); see advice of (2) § to a U.S.C. in California action grant under 28 relief § § 60.81-60.82 actually personally notified of defendant not Practice Moore’s Federal requires, inter equitable relief action; (3) (independent judgment for aside set alia, remedy available at adequate court.”); no Wm. Moore 12 James fraud on the sought vacat- to be al., law and that the § 60.60[3][b] et Federal Practice Moore's unconscionable”); also "manifestly see ed.1997); ed is (3d 30 Am.Jur.2d Executions (suggesting 443 n. Somportex, F.2d at § Judgments Enforcement are judgments to default grant collateral attacks (“[t]he may[] relief registering court fraud or where instances equita- allowed in "limited” independent in an involved). neglect are action, excusable particularly where some fraud or ble expressly contrary: issue held to the court’s denial of Rule motion with- registration court in entertaining prejudice). “[A] errs out rightly And so. With 60(b) a Rule motion that alleges mind, neither a legal these well-settled principles jurisdic void for of personal lack I think holding the First Circuit’s in Bru- grounds tion nor support that would an nette best significant comity vindicates the Brunelle, independent equitable action.” implicated registration interests in the 689 F.2d at 251-52. adequately context while preserving collat- eral litigants. avenues of relief for surprising, light

This is not general rule that notwithstanding Furthermore, if agrees even one topic, rule’s silence on the applications for the substance of majority’s legal con- 60(b) relief typically be made in must clusion—one that is at odds with the Bru- See, the court rendering nette registering decision—-that courts e.g., al., 12 James Wm. Moore et have the power to foreign judg- vacate MooRe’s (3d ed.1997) § PRACTICE 60.60[1] ments under certain unspecified “extraor- Fedeeal (although the expressly rule does not dinary itself pursuant circumstances” to Rule provide, so “it 60(b)(6), is clear that the drafters of question remains whether this contemplated the rule that the motion ... is the appropriate case in which to make always brought be ‘in the court and proclamation. such a especially This is so in the when, action which the was notwithstanding its articulation of a ”) added); (emphasis rendered’ 11 Charles new rule expanding the bases for which Wright, A. Arthur Mary Kay Miller R. & collateral relief granted regis- Kane, FedeRal tration proceedings, majority neverthe- Practice PROcedure & (Rule 60(b) § at 377 general- motions less acknowledges extraordinary no ly court). made rendering to While this case, circumstances exist in this in any per does not preclude event, se one from chal- so as to warrant such relief. It lenging the underlying judgment upon reg- then, would seem that a satisfactory reso- istration, courts most often lution could have been had here without deny challenges such prejudice, without advancing issue; the Rule referring litigate to the Rule should accordingly have simply done this. 60(b) issue the rendering me, court. For begins this case and ends with the § at District Court’s vacatur of the default Federal Practice & Procedure (“it is appropriate for the court in the judgment insofar as its decision was based registration district of pass decline to on in any part on perception its of the merits 60(b) the motion for [Rule ] relief and to underlying California action.29 It is require moving party proceed in the axiomatic that party when purposefully gave judgment”); e.g., United appear fails to in an action the basis of States v. Corp., Fluor 436 F.2d 384-85 the belief that the foreign tribunal lacks (2d Cir.1970) (affirming registration personal jurisdiction, right she waives the view, my why Harad themselves). reason v. Aetna rendering made to the Casualty Surety Company, 839 F.2d 979 Insofar as Harad require any and Emcasco (3d Cir.1988) Compa and Emcasco Insurance underlying consideration of the merits of the Sambrick, ny (3d Cir.1987) 834 F.2d action, they governing cannot dictate apply do not they turns not on that were standard for vacatur in the case where a decided opposed under Rule intentionally defaults and then seeks to vacate 60(b)(6), simply they but because both registration of a context pertained to direct judg attacks on default proceeding. (where ments the motions for relief were support otherwise or which would voidness merits of underlying contest later The Full action. equitable independent proceeding. in a collateral action weighty and Credit Clause 1034; Faith Inc., Erectors, Elite E.g., nothing less. comity demand Minerals, interests Research, Omega Inc. v. Hazen Cir.1974) (5th 151, 154 Inc., 497 F.2d appear- no

(where makes “the defendant default, the goes and the

ance enforce- subsequent defeat

defendant demonstrating forum in another

ment a court from issued ... [but] lacking Petitioner, CPA, WELCH, E. David fail, the default the attack should determinative final and no less becomes than a de- controversy of

the merits Labor, Secretary CHAO, of L. Elaine trial”). Thus, when full after entered cree Department of States United of the merits considered District Court Labor, Respondent, opine action below the California extremely merito- “possesses defendant Corporation, Bankshares Cardinal vacatur, App. warranted defense” rious Intervenor-Respondent. the fundamental 7, it missed at1 vol. Project; Accountability and collateral Government between direct distinction Center; Tax- National Whistleblower attacks. Federal Practioe Moore’s Support- Fraud, Against Amici payers look court cannot (“registering § 130.35[1] Petitioner, ing to reex- the judgment of the substance into Restatement As the validity”). amine its Bank Di- of Association American cogently explains: rectors; Virginia Association the mer- to consider inappropriate is [I]t Banks; Virginia Bankers Community when that on a of an attack its Supporting Re- Association, Amici of a subse- made in the course attack spondent, in which quent action of claim defense. on as a basis relied Commission, Exchange Securities attack the merits To consider Curiae. Amicus gen- contravene context is to such 07-1684. No. that relief principle eral court that sought should be ment Appeals, Court States United rendered Circuit. Fourth § (SECOND) JüDGMENTS OF RESTATEMENT 14, 2008. May Argued: ¶ (1982). 2a cmt. Aug. Decided: with the I concur although Accordingly, case, disposition majority’s ultimate pronounce- its dissent from respectfully

I availability general

ments on cir- particular Under the relief. regis- here, I hold

cumstances foreign vacates errs when it

tration court than those grounds other

judgment on

Case Details

Case Name: Budget Blinds, Inc. v. White

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 28, 2008

Citation: 536 F.3d 244

Docket Number: 06-2610, 06-2733

Court Abbreviation: 3rd Cir.