City of New York v. Mickalis Pawn Shop, LLC

travel for Massino air first-class volved YORK, The CITY OF NEW there “because five marshals four or Plaintiff-Appellee, (Tr. 3916.) notice.” no advance was suggest- Second, has Pérsico point at no SHOP, LLC, PAWN MICKALIS ability pay he lacked ed that Defendant-Appellant, Had to the trial. bringing Massino cost of have pay, he could been unable Pérsico Jewelry Pawn, Inc., Adventure A-1 & un- court for relief to the district applied Inc., Shop, Outdoors, Inc., Cole’s Gun 17(b); not. Rule he did Outfitters, der Dunkelberger’s Sports Gal Inc., Greg Drig lery Distributing L. any made show- Finally, Pérsico has not Brokers, gers AAA Gun & Pawn d/b/a testimony have would that Massino’s ing Store, Inc., Bab The Harold W. Gun his defense. or favorable to material been Goods, cock, Sporting Jr. Webb’s d/b/a government supposes He because Thomas Farmer Jim’s James d/b/a testify, Massi- not call Massino itself did Nancy Dailey Whatever, Guns and conver- not recall the Pérsico likely no did Post, Peddler’s Old Dominion d/b/a Vitale, sation, indicating that described Tackle, Inc., Services, & Patriot Guns killed; and he had had Cutolo Pérsico Big Inc., Shop, Inc. Pawn Welsh d/b/a testimony that he that Massino’s argues Shop, Hol Tom’s Pawn Woodrow C. gone have no such recollection “would had Woody’s Shop, Pawn man III d/b/a Inc., no conversa- Transfers, far to demonstrate that such Virginia Firearms & (Pérsico appeal had occurred” brief Defendants. tion 54). argument piles speculation This York, The of New far supposition and falls short upon Plaintiff-Appellee, trial. for a new providing basis Outdoors, Inc., Adventure

CONCLUSION Defendant-Appellant, have considered all of defendants’ Jewelry Pawn, Inc., Gun A-1 & Cole’s appeals including on these arguments — Inc., Dunkelberger’s Sports Shop, Out testimony by some their contentions that Inc., Greg fitters, Gallery Distributing was incredible as matter witnesses Driggers AAA & Pawn L. Gun d/b/a found them to be without law—and have Brokers, Store, Inc., Harold The Gun judgments of the district court merit. Babcock, Sporting W. Jr. Webb’s d/b/a affirmed. Goods, are Thomas Farmer James d/b/a Whatever, Mickalis

Jim’s Guns Nancy Dailey Shop, LLC, Pawn d/b/a Post, Dominion Guns & Peddler’s Old Inc., Tackle, Inc., Services, Patriot Big Shop, Pawn Inc. Welsh d/b/a Shop, Pawn Woodrow C. Hol Tom’s Woody’s Shop, III Pawn man d/b/a Transfers, Inc., Virginia Firearms & Defendants.* amend the above. *The Clerk of Court is directed to captions in actions as set forth official these 08-4804-cv, 09-1345-cv. Docket Nos. Appeals, States Court of

United

Second Circuit.

Argued: March 2010. April

Final Submission: 4,May

Decided: statute, N.Y. long-arm

York C.P.L.R. fact that solely § on the based practices sales have facil- dealer’s unlawful trafficking guns by par- third itated the State, guns York where those ties New public to a nuisance. Because contribute nega- in the question we resolve the first tive, we do not reach the second. (Kenneth Taber, W. Frederick A. Brodie (the City “City”) insti- The of New York Pitt- counsel), Winthrop Shaw Pillsbury in May tuted this lawsuit N.Y.; man, LLP, York, Eric Prosh- New federally firearms fifteen licensed retail Corporation Counsel ansky, Assistant operating Georgia, dealers from stores (Richard Biernoff, Costa, Ari of coun- J. Ohio, Carolina, Pennsylvania, South Cardozo, sel), Corporation A. for Michael Virginia. defendants-appellants, York, New of New Counsel (“Mickalis Shop, Mickalis Pawn LLC York, N.Y., City Plaintiff-Appellee for Pawn”) Outdoors, and Adventure Inc. New York. (“Adventure Outdoors”) among are those Kahn, Firm, Kahn Law Justin S. dealers.1 Mickalis Pawn and Adventure Charleston, S.C., Defendant-Appellant for operate single a retail store Outdoors each Shop, Mickalis Pawn LLC. Georgia, respective- in and South Carolina (Scott Allan, of F. Renzulli C. John ly. separately Each moved to dismiss the counsel), Firm, LLP, Renzulli Law White City’s against theory complaint on Plains, N.Y., Defendant-Appellant Ad- for personal ju- that the district court lacked Outdoors, Inc. venture (Jack it. court risdiction over The district Weinstein, Judge), denying B. those mo- WESLEY, Before: SACK and Circuit tions, concluded that the had made at EATON, Judge.** Judges, and prima showing personal least a facie SACK, Judge: Circuit jurisdiction, but left the final determina- appeals present appear what These jurisdiction tion trial. personal for impression of first in this to be two issues prac- After additional of motion rounds First, whether a defendant who Circuit. varying discovery, tice and amounts of repeatedly moves to dismiss for lack of two defendants each moved to withdraw personal jurisdiction, but then withdraws their counsel and announced to respective are litigation from the after those motions that they proceed the district court would ensuing to attack an permitted is The litigation. no further district grounds that it judgment default on the against court entered a default each of jurisdiction. lack personal void for Sec Eventually, proceedings after them. be- ond, whether a federal district court magistrate judge, a the court entered fore jurisdiction an out- personal exercise over perma- judgment of-state firearms dealer under the New a default ordered ** Eaton, Judge we peal, Honorable Richard K. for ease of reference refer to these The the United Court of defendants-appellants simply States International two as the "de- Trade, sitting by designation. fendants.” Although many there were defendants in parties ap- court that are not district this injunctive understanding nent relief both defen- of our resolution of these appeals. dants. Defendants-Appellants appeal

Both defendants now from the grounds.2 judgment various Mickalis liability Pawn is limited com- First, assert their withdrawal pany formed under South Carolina law. It litigation justify from the did not the dis- operates single retail store —a pawn shop entry trict court’s of default or the issu- Summerville, South Carolina —where it judgment against ance of a default them. sells, among things, other firearms. At all Second, they contend that the district times, relevant Mickalis Pawn’s revenue lacked over entirely has been derived from sales made them, and therefore that the default judg- at its Summerville store to customers who Finally, ment is void. the defendants chal- visit in person. the store As of lenge permanent injunctions as uncon- Mickalis Pawn did anything not offer stitutional or as violation of Federal York, sale New nor had it ever done so. 65(d). Rule of Civil Procedure any It has never sold merchandise mail order, by telephone, means of the We conclude that the district court did Internet. not abuse its discretion in entering de- issuing fault and a default Adventure Georgia corpo- Outdoors is a against each of the defendants. We also principal ration with its place of business conclude that the defendants forfeited the in Georgia. operates It a single retail personal jurisdiction of lack of defense store, located in Smyrna, Georgia, from any they may other defenses have had sporting which it sells goods, hunting and

willfully abandoning their defense of the fishing equipment, camping supplies, and litigation. judgment against The default firearms and ammunition. Like Mickalis However, them is therefore not void. be- Pawn, its revenue is derived from sales agree cause we with the defendants that made at its retail store to customers who injunctions issued the district court visit the in person. store It ship does not 65(d), requirements violate the of Rule we goods state, its out of nor does it sell injunctions vacate the and remand to the gun firearms at shows. district court for it craft appropriate to has, however, Adventure Outdoors main- injunctive relief. tained three through websites which cus- tomers process pur- initiate the of

BACKGROUND chasing firearms from its store. These underlying litigation The facts this Georgia are websites allow a customer from or lengthy opinions discussed in detail in two elsewhere in the place United States to by the district court. City deposit See New on a firearm through a wholesale Pawn, (“A-1 Jewelry York v. A-1 & Inc. distributor and direct the distributor to (E.D.N.Y. I”), Jewelry F.Supp.2d ship the firearm to Adventure Outdoors. 2007); City Jewelry New York v. A-1 The & customer must then visit Adventure (“A-1 Pawn, ”), Jewelry Inc. II 247 F.R.D. in person complete Outdoors’ store to (E.D.N.Y.2007). repeat them here sale and retrieve the firearm. Adventure only necessary insofar as we think it system for an Outdoors concedes that this would appeals panel 2. The two defendants' were consoli- fore the same of this Court. 11, 2010, argument dated for on March be- fire- illegally purchased these Many purchase resident a New York permit Outdoors, if only but commit arms, City alleged, are used to Adventure gun from pick up. Georgia traveled he or she time after City within a short crimes to resi- guns has sold Adventure Outdoors City’s The by the defendants. their sale way, this but never other states dents of five causes complaint initial asserted resident. a New York State nuisance, statutory nui- public action — Court the District Proceedings in se, sance, per and negligence, negligence sought dam- negligent entrustment —and City brought suit May On costs, per- ages, nuisance-abatement licensed retail fire- federally fifteen than in states other injunctive located relief. arms dealers manent Pawn and York, including Mickalis New Pawn, 8, 2006, Mickalis Ad- August On Outdoors, en- alleging Adventure Outdoors, and four other defen- venture that con- practices gaged in unlawful sales timely moved dealers each dant firearms City.3 nuisance public tribute to to it for lack of complaint to dismiss that each complaint in its City alleged The defen- jurisdiction. moving engages dealers fifteen firearms of the “ requirements asserted that dants that facilitate the purchases” ‘strawman’ statute, long-arm York C.P.L.R. the New by individuals who of firearms acquisition satisfied; the defen- § were not buying pos- from by law prohibited are ¶ 2006). constitutionally requisite lacked the (May dants Compl. sessing them.4 City grounds. Bloomberg dealers on similar announced the firearms Mayor Michael Inc., press Sport Shop, at a conference filing v. Bob Moates' of this lawsuit New York of No. 06-CV-6504 response (E.D.N.Y.) to certain May 2006. In (complaint held on filed defamatory by the allegedly comments made 7, 2006). litigation, which was also Dec. That conference, press Mickalis mayor at Weinstein, Judge after ended in 2008 before brought each Adventure Outdoors Pawn and or were dis all twelve defendants settled mayor, against the defamation suit for City New v. Bob Moates’ missed. See York York, others, in South Car- of New Inc., (E.D.N.Y. Sport Shop, 253 F.R.D. 237 courts, respectively. Georgia state olina and settlement). 2008) (approving Like the Geor City’s attempt Following unsuccessful suits, the gia and South Carolina state-court court, Ad- to federal see remove each lawsuit not at issue in these Bob Moates’ lawsuit is Outdoors, Bloomberg, 552 F.3d Inc. v. venture appeals. Cir.2008) (11th (reversing with instruc- 1290 court); to remand to state Mickalis tions purchase, buys one individual 4. In a "straw” F.Supp.2d Shop, Bloomberg, 482 Pawn LLCv. purpose transferring it with the a firearm (D.S.C.2007) (remanding case to state 707 prohibited individual who is from to another court), proceeded both cases in state venues. City purchasing New Yorkv. it himself. See ultimately lawsuit was Adventure Outdoors’ Corp., U.S.A. Beretta comply with certain dismissed for failure - -, Cir.2008), cert. law, Georgia procedural requirements of see (2009). 173 L.Ed.2d 675 The S.Ct. Outdoors, Bloomberg, Adventure Inc. stand-in, buyer, rather than the true com (2010) (affirm- Ga.App. 705 S.E.2d sale, registering pletes form the official lawsuit), ing dismissal of while Mickalis federally and to the ATF Form submits to dismiss Pawn's lawsuit survived motion and, background check. See United mandated being voluntarily and after dismissed Robinson, reinstated, pending, n. 1 appears to then remain States Cir.2009). Shop, Bloomberg, (7th knowingly par Mickalis Pawn LLC v. see A seller who (S.C. Berkeley No. Ct. C.P. subject 06-CP-08-1734 ticipates purchase is in a straw 27, 2009). County, See, Mar. Neither reinstated prosecution. e.g., Adven federal criminal litigation appeals. is at issue in these Outdoors, Bloomberg, 552 F.3d ture Inc. v. City brought sepa cases). Cir.2008) The of New York also (11th (collecting in rate but related action December against federally licensed retail twelve other York; York,” minimum contacts with New and State New id. at and to purposely satisfy requirements never provision that the defendants of that of interstate commerce long-arm availed themselves of New York’s statute permitting they reasonably antici- person such that should over a who “commits a in York. The pate defending a lawsuit New tortious act without the state causing inju argued requiring out-of- ry defendants person property state, or within the as themselves to liti- state retailers such ... if ... expects reasonably he or should in gate this action a state with which expect consequences the act to have in the no would violate both New have connection state derives substantial from revenue process York law and tenets of due under interstate international commerce.” the Fifth and Fourteenth Amendments. 302(a)(3)(h). § N.Y. C.P.L.R. See A-1 I, Jewelry F.Supp.2d at 424-29. The 15, 2007, following jurisdic August

On sought defendants leave to take an inter discovery, tional the district court denied locutory appeal; the district court denied the motions to dismiss what it charac that request. impression” ap terized a “case of first long-arm the New York plying statute 29, 2007, August City On filed an public-nuisance suits out-of-state complaint. City substituted, amended I, Jewelry firearms dealers. A-1 501 for the five original claims its complaint, The court F.Supp.2d stated two claims under N.Y. Penal Law City’s pleading stage burden at the §§ 240.45 and 400.05—one public each for prove personal jurisdiction was not to con nuisance, statutory respectively —and clusively, but to show a “substantial likeli injunctive sought only. relief jurisdiction” that all hood the elements of Pawn, Adventure Outdoors and Mickalis could be established at trial. Id. at 416. others, among again moved to dismiss reviewing After evidence of the defen on, alia, based inter lack of personal jurisd recovery dants’ sales of firearms and the 18, 2007, iction.5 On December the dis York, of some of those firearms New trict court denied the defendants’ renewed the court determined that had II, entirety. motion in its A-1 Jewelry “demonstrated, high degree with a 247 F.R.D. at 305. The district court or probability, knowing defendants’ [the] an expedited discovery dered schedule and states, parallel conduct their individual 27,May set a trial date of commerce, relying on interstate been ha[s] Mickalis Pawn’s Default responsible funneling for the into New February Larry Mickalis, On quantities York of large handguns used Pawn, principal of Mickalis was indict- by significant local criminals to terrorize grand jury ed a federal in City’s South Car- portions population.” of the Id. at knowingly selling The that olina for a firearm 374. district court concluded and ammunition to a allegations pro these were “sufficient to convicted felon in viola- 922(d)(1) §§ vide minimum tion necessary contacts for of 18 U.S.C. 924(a)(2).6 an personal February exercise of On Mickalis — (2d Cir.2008), 5. Adventure Outdoors and Mickalis Pawn also 524 F.3d 384 cert. -, sought L.Ed.2d 675 dismissal for failure to state a claim (2009). stay The district court denied the pursuant to Federal Rule of Civil Procedure II, application. Jewelry A-1 247 F.R.D. at alternative, 12(b)(6). they requested In the stay litigation pending appeal City of Corp., New York v. Beretta U.S.A. By agreement government, with the Mr. (E.D.N.Y.2005), F.Supp.2d part, rev'd in ultimately pleaded guilty Mickalis to a less the conse- his client “does understand stay litigation all to moved again Pawn resolution City pending quences.” Id. at 15. with the Mickalis; Mr. criminal case counsel, Mick- At Mr. suggestion early March. that motion denied court joined the conference before the alis then Jewelry & v. A-1 New York City Mr. Mick- magistrate judge by telephone. 06-CV-2233, Pawn, Inc., 2008 WL No. to the court that Mickalis alis confirmed Dist. LEXIS retaining substi- Pawn had no intention 2008). (E.D.N.Y. 4,Mar. participating further tute counsel or of later, on March week About one Magistrate Judge Poliak litigation. repre- firms three law each of the you do not “[I]f Mr. Mickalis: warned simultaneously Pawn Mickalis senting represent Mickalis attorney have counsel, citing the moved to withdraw Pawn, City going to move for a then the and his decision Mr. Mickalis indictment of corporations cannot default and because his financial resources to concentrate counsel, a default appear in court without action. in the criminal defending himself in- means that the [T]hat will enter.... mo- in their withdrawal asserted Counsel requested has junctive relief that Pawn would continue tions that Mickalis granted.” in all be Id. at 17. will likelihood juris- of lack of assert its defense that he understood Mr. Mickalis indicated that intend to waive diction and did not this, his desire but nonetheless reaffirmed motions, City opposed defense. Magis- from the case. When withdrawal of counsel withdraw arguing that such discovery substantially Judge suggested Poliak that she would frustrate trate delay proceedings. permit all three of Mickalis might not withdraw, law firms to one of Pawn’s (Cheryl the district On March attorneys that protested Pawn’s Mickalis Poliak, Magistrate Judge) L. held a status if [Mr. not a whole lot to defend “[t]here’s discuss, among things, other conference to prepared go Mickalis into default.” is] to withdraw. At the motions of counsel at 18. conference, Pawn Id. counsel Mickalis client consented to confirmed that their for Mickalis Pawn con- Although counsel an- Counsel also their withdrawal. “likely” result ceded that default was nounced, however, that Pawn “Mickalis withdraw, at Mick- of its decision to id. has it does not intend to decided expressly Pawn did not consent alis Transcript case.” further defend this entry a default. But a March 18 (Mar. 2008). Proceedings at 14 Coun- court, counsel for Mickalis letter to the Mickalis, that Mr. sel advised the court had advised Pawn confirmed Pawn, acting on behalf of Mickalis “under- “that if the motions to with- their client is an obvious conse- [default] stands granted[,] ... are th[e] draw as counsel longer to no defend” quence of his decision be without counsel” and defendant will City argued Id. When the the lawsuit. “the Court will enter failure to defend that Mickalis Pawn’s Magistrate Judge against it.” Letter entry judgment lead to of default would Firm, Law LLP relief, Poliak from Renzulli injunctive one imposition and the of 2008). (Mar. 18, attorneys of Mickalis Pawn’s stated 924(a)(3)(B). properly offense: failure to maintain serious 922(m) §§ of U.S.C. records in violation City perceived the to trict court a permanent As a result of what also entered in acquiescence junction against Pawn’s to a de- Mickalis City be Mickalis Pawn. See of fault, tak- City agreed Shop, the to abandon the New York v. Mickalis Pawn LLC (“Mickalis Larry Inj.”), 06-CV-2233, of ing deposition Mickalis Pawn No. (E.D.N.Y. thereafter, 792042, shortly to be held as 2009 at *1 scheduled WL Mar. 2009).8 discovery. City for, pending injunction provided well as other The The Magistrate Judge Poliak that among things, appointment advised other the of a judgment special would seek a default if Mickalis master implementation and the Pawn’s counsel’s motions to withdraw were remedial measures to abate public nui City precise and the detailed the sance granted, created Mickalis Pawn’s illegal injunctive request. relief that it would firearms sales. See id. Adventure Outdoors’ 27, 2008, magistrate judge

On March Default granted pending motions for withdraw- Pawn, Unlike Mickalis Adventure Out- City formally al of counsel. The then re- doors participate continued to in the law- against that a default be quested entered through discovery. suit the close of On pursuant Mickalis Pawn to Federal Rule of 29, 2008, April all other having defendants 55(a). Civil Procedure The Clerk of Court defaulted, either settled or Adventure Out- April the default on entered summary judgment doors moved for seek- later, on, alia, ing dismissal City

Two months June based inter lack of judgment against for a default and preemption by moved pursuant Mickalis Pawn to Federal Rule of the Protection of Lawful Commerce in 55(b)(2). Pawn, Act, §§ Civil Procedure Mickalis Arms 15 U.S.C. 7901-7903. se, putatively representing pro op- itself While Adventure Outdoors’ summary- posed by submitting the motion a list of judgment pending, motion was the district objections. reviewing parties’ After both court issued an sponte directing order sua submissions, magistrate judge issued a parties to make submissions as to report suggesting and recommendation whether were to a entitled trial City’s that the granted motion be and that jury. Following argument oral held on City’s proposed findings of fact and May the district court decided that adopted conclusions of law be in their en- party neither was so entitled. The court 19, 2008, tirety. September On the dis- announced that it would sit as the finder of (Jack Weinstein, trict Judge) B. advisory fact with the assistance of an adopted magistrate judge’s recommen jury, provided by Federal Rule of Civil City’s dation and proposed issued the find 39(c). following day, Procedure ings of fact and conclusions of law as its district court denied Adventure Outdoors’ City own. A-1 See New York v. Jewel motion for summary judgment. City Pawn, Inc., ry 06-CV-2233, & No. Pawn, Jewelry New York v. A-1 & Inc. WL 2008 U.S. Dist. LEXIS 87236 (“A-1 III”), Jewelry 252 F.R.D. (E.D.N.Y. 2008).7 Sept. (E.D.N.Y.2008). The court directed that 27, 2008, Default begin May Mickalis Pawn the trial with the advisory was entered on March 2009. The jury. dis- selection magistrate judge subsequently report 7. The amended amended and recommendation as to report January Pawn). her 27, and recommendation on Mickalis 2009. See New v. Adventure York Outdoors, Inc., F.Supp.2d 8. Not available on Lexis. (E.D.N.Y.2009) (adopting magistrate judge’s declined, however, selection, to consent ex- Counsel jury the midst of in On June to Outdoors moved entry judg- of default or default pressly counsel for Adventure In a written the case. from withdraw ment. that Adven- submission, reported counsel refusal light In of Adventure Outdoors’ engage “chosen not to had

ture Outdoors to dismissal proceed, City the consented defending itself at futile exercise in the advisory jury. The district of Renzulli Law trial.” Motion a bench default on then noted Adventure Outdoors’ (“Renzulli as Counsel Firm to Withdraw record, conditionally granted City’s the the 2008). Motion”) (June 2, at 1 Withdrawal judgment, motion for default and directed if the district court asserted Counsel factfinder, proceedings that all further in the case be the ultimate outcome of sat “foregone conclusion” magistrate judge.9 the trial would be held before the re- would “not and Adventure Outdoors Thereafter, City the and Adventure Out also advert- fair trial.” Id. Counsel ceive a magis made to the doors each submissions limited financial re- ed to their client’s City’s motion for judge regarding trate the sources. 27, 2009, January judgment. default On the court that Adven- advised Counsel magistrate judge report issued her and the ap- “to nonetheless intended ture Outdoors recommendation to the effect that a de judgment peal any from granted fault and that the be it.” Id. Attached to the be entered of fact and conclu City’s proposed findings Wallace, by Jay motion was a declaration adopted. City New sions of law be Outdoors, of Adventure at- president (“A-1 Outdoors, York v. Adventure Inc. been “informed ... of testing that he had IV”), Jewelry F.Supp.2d 203-18 participating of not consequences (E.D.N.Y.2009) magis text of (reproducing affirming that the bench trial” and Adven- judge’s January report consented to counsel’s with- trate ture Outdoors ¶ 3, recommendation). Jay Ex. 1 to drawal. Aff. of Wallace Adventure Outdoors Renzulli Motion. Withdrawal objections magis detailed to the submitted judge’s report trate and recommendation. court, hearing argu- upon

The district parties, ment from the denied Adventure On March the district court counsel Outdoors’ motion to withdraw its adopted magistrate judge’s report already light of the fact that trial was entirety recommendation its and en- underway. court warned that if Ad- judgment against tered a default Adven- forward go venture Outdoors “refuse[d] Outdoors, simultaneously with the en- ture case,” with the that course of conduct try judgment against of default Mickalis Federal would “constitute default” under Pawn. Id. at 203. The district court also Transcript Rule of Civil Procedure 55. injunction against permanent issued a Ad- (June 2008). Proceedings at 7 When substantially venture Outdoors terms with whether the defendant district court asked injunction entered identical to those go [jury] forward with selec- “refuse[d] City against Mickalis Pawn. See New mat- proceedings” tion and further (“Adven- Outdoors, v. Adventure Inc. ter, York responded counsel Adventure 06-CV-2233, Inj.”), refused. at 10-12. ture Outdoors No. Outdoors indeed so Id. conference, properly During judgment. The district court raised the fault issue, explaining that question declined to consider the whether Adventure Outdoors would appeal entry question decide. permitted to of de- was not for be from (2009). (E.D.N.Y. upheld Mar. There we constitution- 2009 WL 2009).10 ality of the against challenges PLCAA Clause, under arising the Commerce appeal.

The defendants Amendments, First and Tenth and the principle separation powers. id. DISCUSSION determined, at 393-98. We also over a Subject-Matter I. Jurisdiction dissent, § that N.Y. Penal Law 240.45 was applicable we solicited not a “statute to the sale or Following argument, oral parties marketing purposes from of firearms” for the supplemental briefing predicate exception. Id. at address the effect of the Protection 399-404. in Act therefore Lawful Commerce Arms We concluded dismissal of (“PLCAA”), plaintiffs public-nuisance § on the seq., against 15 U.S.C. 7901 et suit arising these various firearms manufacturers un- appeals. required. der section 240.45 was Id. at PLCAA, by Congress in The enacted consider, expressly 404. We did not how- provides pertinent part that “[a] ever, whether the deprived PLCAA liability civil action not be qualified subject-matter jurisdiction court of over a any Federal or court.” brought State liability civil “qualified action.” 7902(a). “qualified § A civil lia 15 U.S.C. appeals, as “a civil action or In the instant we bility sup- action” is defined solicited brought by any person plemental briefing parties ... from the proceeding on two First, qualifiedquestions. a manufacturer or seller of a we asked them against to ad- pro ... from dress whether the [arising] deprives PLCAA a fed- duct[11] qualified subject-matter or unlawful misuse of a eral court of criminal action,” person party.” “qualified liability or a third over a civil if product or 7903(5)(A) (footnote added). provides complete § instead the PLCAA Id. is, however, Second, subject to several defense such an action. definition we parties A statutory exclusions. lawsuit is not asked the to address whether the PLCAA, example, predicate exception applies only if it is when the barred action, a manufacturer or plaintiff pleads, “an action which its cause qualified product knowingly seller of a vio violation of “a State or Federal statute applicable applicable marketing or Federal statute to the sale or of the lated State if, instead, marketing product, product,” supporting to the sale or or factual allegations statutory proximate concerning and the violation was a cause of violation may satisfy predicate sought.” exception the harm for which relief is Id. even 7903(5)(A)(iii). plaintiffs § where the cause of action is not directly premised on the identified statuto- had occasion to consider previously ry violation. has to be known provision, this which come independent have “predicate exception,” as the Federal courts ob- Corp., ligation inquire into the existence of New York v. Beretta U.S.A. — Cir.2008), subject-matter jurisdiction. Arbaugh Y cert. F.3d 384 U.S. -, Corp., 173 L.Ed.2d 675 & H 126 S.Ct. ammunition, component part of a firearm or 10. Not available on Lexis. shipped transported in inter- that has been or "qualified the term 11. The PLCAA defines foreign commerce.” 15 U.S.C. state ..., including any product" as "a firearm 7903(4). § ..., ..., antique firearm or ammunition or a 126 (2006). “[S]ubject statutory deprives is one that a restriction

1285, 1097 163 L.Ed.2d subject-matter jurisdiction. it involves a court of because jurisdiction, matter case, can never be to hear a clearly that a power Legislature court’s If the states (internal quota Id. scope or waived.” a forfeited threshold limitation on statute’s omitted). as inquiry “Our jurisdictional, tion marks shall count as then courts subject have matter duly certain whether'we be instructed and litigants and will analy ordinarily precedes our left to wrestle with the issue. will be Matthew of the merits.” rank a Congress sis But when does not Jennifer Dep’t v. Rehab. Ctr. U.S. Nursing coverage juris- & statutory limitation on of Servs., 951, 955 dictional, Health & Human courts should treat the restric- (2d Cir.2010). of question review the in nonjurisdictional tion as character. de novo.12 Di subject-matter jurisdiction 515-16, Arbaugh, 546 U.S. at 126 S.Ct. N.Y., IP A 469 v. Doral Dental Tolla (footnote omitted). Ar- 1235 and citation (2d Cir.2006). 271, F.3d 275 baugh represents “powerful a ] statement reluctant to make subject-mat- that courts should be possesses a court Whether jurisdictional statutory ... issues unless plaintiff can jurisdiction, ter and whether Zhong Dep’t relief, language requires it.” v. U.S. questions “are two state a claim for (2d Cir.2007) Justice, 126, often, F.3d easily, confused.” that are and (Calabresi, J., concurring in denial of re- Principal Grp., Fin. Carlson Cir.2003). banc). 301, concept hearing en 305-06 jurisdiction, which relates subject-matter sure, Supreme To be Court has not- solely adjudicatory authority, to the court’s ... Arbaugh “Congress ed since that need analytically is distinct from “the essential magic speak not use words order to ingredients [plaintiffs] of a claim for re- Henderson, clearly,” 131 S.Ct. at and “ at Arbaugh, lief.” 546 U.S. 126 S.Ct. ‘[c]ontext, including [Supreme] th[e] of similar interpretation provisions Court’s ” relevant,’ many years past, (quot- id. “[branding going Because a rule as — Elsevier, Muchnick, ing Inc. v. subject-matter jurisdiction alters Reed court’s -, operation of our adversarial U.S. 130 S.Ct. the normal (2010)). Nonetheless, system,” Henderson ex rel. Henderson L.Ed.2d 18 — -, Shinseki, Arbaugh’s 131 S.Ct. Court has reaffirmed core hold- “ (2011), ing Congress provide L.Ed.2d 159 must a ‘clear’ “[be- consequences cause the attach to the indication that rule to be [it] want[s] [a] ” id., drastic,” jurisdictional ‘jurisdictional,’ (quoting Arbaugh, 546 label be so id. 515-16, 1235), Supreme Court has endeavored re- U.S. S.Ct. before we jurisdictional. years bring discipline may recognize being cent “to some to the it as term,” end, Indeed, “important use of this id. To that even rules that are mandatory given ... Supreme developed bright-line Court has should not be particular jurisdictional Congress test to determine whether a brand” unless has Although, proceedings, that the PLCAA did not de- district court stein concluded prive subject-matter jurisdiction, various defendants asserted that the PLCAA the court of them, II, Supreme Jewelry determined that barred suit see A-1 and further 349-53; III, Jewelry ruling 247 F.R.D. at A-1 Court's in District Columbia v. Hel- ler, L.Ed.2d F.R.D. at the district court did not ex (2008), question. pressly question did not on the consider whether bear subject-matter Sport Shop, jurisdiction. PLCAA affected New York v. Bob Moates’ its Inc., lawsuit, however, (E.D.N.Y.2008). Judge In a related Wein- 253 F.R.D. 241-42 as it declared that Id.; “[n]o risdictional insofar see also otherwise. clearly indicated jurisdiction over an action shall have v. Bhd. Locomotive Pac. R.R. Co. Union — U.S. -, specified unless a con- Gen., under this section” & Trainmen Eng’rs statute, (2009). Pa- applies), superseded by dition L.Ed.2d 428 S.Ct. Act, Protection and Affordable Care tient bar that the PLCAA’s conclude We (codified 111-148, 10104(j)(2) § No. Pub.L. action[s],” 15 liability “qualified civil on 3730(e)(4)(A)). § amended at 31 U.S.C. as 7902(a), courts deprive § does not U.S.C. conclude that the PLCAA We therefore lan jurisdiction. The subject-matter of subject- not the district court of did divest “ speak not the PLCAA ‘does guage of jurisdiction dispute.13 over this matter way to any refer in terms or jurisdictional ” Having possess determined that we sub- jurisdiction [district courts].’ of the would, in the ject-matter jurisdiction, we Henderson, (quoting 131 S.Ct. at course, ordinary proceed consider Airlines, Inc., 455 Zipes v. Trans World City’s lawsuit is nonetheless whether the 385, 394, 71 L.Ed.2d 102 S.Ct. case, by the In this how- barred PLCAA. (1982)). Instead, only that provides ever, fully litigate the defendants did not may not liability civil action qualified “[a] PLCAA, in- defenses under the but their any or State court.” brought Federal be litigation, withdrew from the default- stead 7902(a). phrase § Although 15 U.S.C. ed, judgment a and suffered default to be of “may brought” suggests absence not be accordingly them. in- entered We equivalent not phrase is jurisdiction, City’s quire not whether the lawsuit was intent to Congress’s of a clear statement PLCAA, rather, by barred but wheth- courts rather than power limit the court abused its discretion er the district Henderson, litigants. rights of entering judgment against a default In the absence of such at 1203. S.Ct. defendants. statement, must treat the PLCAA clear we parties’ have considered the other only rights to the and obli speaking subject-mat- arguments concerning lack of litigants, power not to the of gations of the they are Elsevier, jurisdiction ter and conclude Compare, e.g., Reed the court. without merit. (concluding Copy at 1245 requirement, 17 right registration Act Entry Judgment Default II. of 411(a), implicate subject- § did not U.S.C. posture appeals of these procedural the statute did matter because unusual. Adventure respects is in some “clearly requirement state” that not, Mickalis Pawn did for Int’l Outdoors and jurisdictional), with Rockwell was States, move the district court to example, before Corp. v. United judgment, 467-68, 190 vacate or set aside default 167 L.Ed.2d S.Ct. (2007) Act, Rules of Civil permitted as is Federal (determining that False Claims 55(c) 60(b).14 Instead, 3730(e)(4)(A), ju- § Procedure was former 31 U.S.C. complete diversity citizenship among the litiga Subject-matter jurisdiction over this appeals. citizenship parties to these diversity tion is founded that, § We note pursuant to 28 U.S.C. 55(c) misappre provides although parties appear "[t]he to have 14. Rule Rule determining judgment default under the citizen ... set aside a hended the test for 55(c). 60(b), 60(b).” Rule limited-liability company, Han Fed.R.Civ.P. ship see turn, grounds relief from a P’ship, six for Ltd. identifies Vill. Assocs. delsman Bedford Cir.2000), (2d including excusa- judgment, mistake or the record final F.3d 51-52 evidence; newly neglect; discovered supports that there is ble us the conclusion before action, directly entry judg liability from the appealed plain- admitted to the unusual, although possible, ment. “[I]t entry tiff. The governed by default is skip the motion to vacate for defendants 55(a), provides: Rule which directly and instead judgment the default party against When a whom a entry judgment.” appeal the default sought affirmative relief is has failed Ltd., Pecarsky v. Galaxiworld.com defend, plead otherwise and that Cir.2001); 170-71 see also failure is shown affidavit or other- Al-Awadi, Swarna wise, the clerk must party’s enter the (2d Cir.2010) (“[A] judgment, like default. any judgment, appealed other can be Court”). matter, a this As technical 55(a). 55(a) Fed.R.Civ.P. Although Rule therefore, we review not whether the dis contemplates entry that of default is a trict court abused its discretion declin step performed by ministerial to be the ing judgment, to vacate the default but court, clerk of see Cnty. Pinaud v. grant whether it abused its discretion in (2d Suffolk, 52 F.3d 1152 n. 11 Cir. ing a default in judgment the first 1995) (describing entry “the of a default” Swarna, 133; stance. See 622 at F.3d (internal “largely as a formal quo matter” 171; Pecarsky, 249 Paddington F.3d cf. omitted)), tation marks a district judge Bouchard, Partners v. 34 F.3d 1147 possesses also the power inherent to enter (2d Cir.1994) (collecting distinguish cases default, a see Beller Tyler, & Keller v. ing appellate review of the denial of a Rule (2d Cir.1997). F.3d n. entry The 60(b) motion from review of the merits of default, establishing while liability, “is itself). underlying the judgment not an admission of damages.”15 Finkel v. “Federal Rule of Civil Procedure 55 is Romanowicz, (2d 577 F.3d 83 n. 6 procedure the basic to be followed when Cir.2009). there is a litiga default in the course of Teddy tion.” Vt. Bear v.Co. 1-800 Bear step, entry second of a judg- default Co., (2d Cir.2004). gram F.3d ment, converts the defendant’s admission provides “two-step process” Rule 55 for liability into a final judgment that termi- entry of judgment against a party who nates litigation and awards plaintiff first, default, fails to entry defend: of a any relief to which the court decides it is second, and entry of a judg default entitled, to the extent permitted by Rule Green, ment. New York v. 420 F.3d 54(c).16 55(b), Under judg- Rule a default (2d Cir.2005). ment ordinarily must be by entered judge, district by rather than the clerk step, entry default, The first of a court, judicial recognition except formalizes a in certain pro- that a de circumstances has, through fendant its failure to defend vided for the rule present and not fraud; voidness; however, judgment; satisfaction of or appealable” is therefore "[i]t not "any justifies other reason that Diakuhara, relief.” Fed. directly. Corp. Enron Oil v. 60(b)(l)-(6). R.Civ.P. 1993). Cir. 15. A may defaulted defendant move before 54(c) provides judg- Rule default "[a] default, the district court to be relieved of its from, ment must not differ in kind or exceed "may and the entry set aside an amount, plead- what is demanded in the good 55(c). default for cause.” Fed.R.Civ.P. 54(c); Merz, ings.” Silge Fed.R.Civ.P. see entry Because the of default is an "interlocu- (2d Cir.2007). and, such, order,” tory act as a non-final dismiss, repeatedly moved to empowered gation, is un- even- here.17 A district court 55(b)(2), answer, tually vigorously in the exercise of its filed an and de- der Rule hearings discovery, make discretion, “conduct or fended themselves did alia, necessary, plead be inter or otherwise “fail[] referrals” defend” 55(a). damages amount of meaning They to determine the within the of Rule plaintiffs allega- 55(a) truth of the argue establish the therefore Rule did not 55(b)(2)(B)-(C). “A tions. required Fed.R.Civ.P. was apply, that the a final action judgment case, is its proceed prove trial and includ- litigation in the one [and] district court ing the existence of Corp. Enron appealed.” Oil may be defendants, by preponderance over the (2d Cir.1993). Diakuhara, 90, 95 evidence. strong preference have “a Because we sure, disagree. To be the “typical merits,” disputes resolving Rule 55 in which a case default has [is one] most “a default because failed to entered because a defendant file a may ap the court severe sanction which timely Unique Brock v. answer.” Rac (internal Green, at 104 ply,” 420 F.3d Inc., Clubs, & 786 quetball Health F.2d omitted), we have char quotation marks (2d Cir.1986). Nonetheless, a district court’s discretion acterized a district is also to enter a empowered default Rule 55 “circum proceeding under as against a has [that] “defendant failed to 95; Corp., F.3d at scribed.” Enron Oil ” (quoting ... Id. ‘otherwise defend.’ Fed. Bank & Trust Co. see also State St. 55(a)). R.Civ.P. Limitada, Errazuriz Inversiones We have embraced a broad understand- Cir.2004) (“Default (2d F.3d ing phrase of the “otherwise defend.” For disfavored and judgments generally ‘are ” Brock, example, in concluded that a we (quot rare are for occasions.’ reserved entered when properly default was 96)), Corp., 10 F.3d at cert. ing Enron Oil defendant, a having demonstrated lack of diligence pre-trial proceedings, during (2005). L.Ed.2d 161 sought adjourn- and a mid-trial received 55(a) Entry A. Under Rule ment, appear but failed to when the then of Default trial Id. at 63-65. We observed resumed. appeal judg “In from a default judge, responsible that “a trial for the ment, may review both the inter the court orderly litiga- conduct of expeditious and and locutory entry [de of default the final tion, to impose must latitude have broad Enron Oil judgment.” Corp., fault] the sanction of for non-attendance default F.3d at 95. begun.” occurring a trial has Id. at after argue that the dis The defendants by treating trict its discretion court abused Similarly, Corp. Ar- litigation as a in Au Bon Pain their withdrawal from Inc., (2d tect, Cir.1981), against them. 653 F.2d 61 we entering basis for default They over concluded that a defendant’s obstructionist that because the course assert tactics, “failing litigation including ap- liti- years they appeared in the several Green, 55(b)(1) incompetent at entry judgment by person.” permits 17. Rule court, 55(b)(2) of a governs the clerk of without involvement all other "[i]n 104. Rule plaintiff’s judge, cases,” omitted), where "the (internal in circumstances quotation id. marks certain and the defendant is for a sum claim including this one. appear has and is not an infant or failed to counsel, pear deposition, dismissing for doors and Mickalis Pawn do here —that giving vague unresponsive and answers to “Rule impose 55 cannot be used to a de- failing appear interrogatories, and against fault a defendant who has filed an trial[,] to support finding were sufficient actively litigated during pre- answer plead had ‘failed to discovery.” [the defendant] trial Id. at 917. under Federal otherwise defend’ Rule of Appeals The Court of affirmed. It de- 65; Civil Procedure 55.” Id. at see also plain cided that the meaning phrase Slone, Cotton v. “otherwise defend” was enough broad Cir.1993) (affirming entry of judg- support entry of default even after a de- who, ment an individual defendant had fendant filed an asserting answer af- following discovery, withdrew his counsel firmative Relying upon defenses. Id. our to comply refused with a court order Pain, decisions in Brock and Au Bon requiring pretrial submission of a memo- well as similar decisions in three other randum). circuits, the Third Circuit concluded that And in Eagle Associates v. Bank “the district power court’s to maintain an Montreal, (2d Cir.1991), orderly justifies we docket entry of a de- defendant, decided that because the a lim- fault against party appear who fails to partnership, willfully disregarded ited had trial” or to “meet required other time the district court’s order that the defen- schedules.” Id. at 918. counsel, dant appear through the court similarly conclude that the district justified

was in imposing default. “Such court did not abuse its discretion in enter- disregard cavalier for a court order is a 55(a) a ing Rule against default either failure, 55(a), under Rule to ‘otherwise de- Adventure Outdoors or Mickalis Pawn. ” provided fend as by these rules.’ Id. at First, each defendant affirmatively sig- (internal quotation omitted); 1310 marks naled to the district court its intention to see also Grace v. Bank Leumi Trust Co. of cease participating defense, in its own even N.Y., (2d 180, Cir.2006) (not 443 F.3d 192 after the defendant clearly was warned ing that judgment may a default be en that a default would result. The defen- tered against corporation a that fails to proceed dants’ refusal places to trial counsel), denied, appear through cert. 549 squarely this case within our rulings in 1114, 962, U.S. 127 S.Ct. 166 L.Ed.2d 707 Brock and Au Bon Pain. (2007); Dow Chem. Pac. Ltd. v. Rascator Second, in Pawn, the case of Mickalis a S.A., (2d 329, Mar. 782 F.2d 334-36 Cir. 55(a) Rule default proper was also under 1986) (same); SEC v. Research Automa Eagle Associates and like cases insofar as (2d 585, Cir.1975) tion Corp., 521 F.2d 589 this defendant withdrew its counsel with- (same); Shapiro, Bernstein & Co. v. Cont’l out retaining a substitute. See Lattanzio Co., (2d Cir.1967) 426, Record 386 F.2d 427 COMTA, (2d 137, Cir.2007) v. 481 F.3d 140 curiam) (same). (per curiam) (“[A] (per liability limited company persuasive also find the Third Cir ... appear in federal court only analysis Blinder, cuit’s in Hoxworth v. through a attorney.”). licensed Co., (3d Robinson & 980 F.2d 912 Cir. Finally, both clearly defendants indicat- 1992). There, the district court entered a ed that were aware that their conduct default judgment against defendants who likely would result in a default. had failed to comply discovery with orders and to appear for trial. appeal, On arguing In that the district court none- protested defendants Adventure default, Out- theless by entering erred a both —as

131 (1992); 70, Mickalis Pawn 113 S.Ct. 121 L.Ed.2d 36 Ackra and Adventure Outdoors case from 1949: rely Corp. Fingerhut on a Fifth Circuit 86 Mktg. Corp., Direct (5th Cir.), (8th F.2d 205 Hoagland, 172 Cir.1996); Bass v. Ringgold F.3d 856 denied, 94 Worrall, cert. Corp. v. 880 F.2d 1141-42 (1949). There, split panel a 494 L.Ed. curiam). (9th Cir.1989) (per But see Seven that a Fifth Circuit decided default Elves, Eskenazi, Inc. v. 400 defendant not be entered could (5th 1981) (“Although n. Cir. Bass has appear had failed to for trial. The who ... remains been criticized nevertheless words concluded that ‘other “[t]he court (cita in this binding precedent circuit.” to attacks the ser wise defend’ refer omitted)); tion Solaroll Shutter Shade & dismiss, vice, or for or motions to better Inc., Bio-Energy Sys., F.2d Corp. at and like.” Id. In particulars, Cir.1986) (“If (11th 1130, the defen view, words did not refer the court’s these complaint has dant answered but fails in which defendant filed to circumstances trial, appear joined, at issue has been only appear later failed an answer and the cannot enter 55] a [Rule interpretation18 of in court. Id. But this judgment.”). default has not been embraced this Rule 55 64; Brock, F.2d at Au Bon Court. Entry Judgment B. Under of Default Pain, F.2d at 65. Nor has it found 55(b)(2) Rule majority in a of our sister circuits. favor judg- Our review of whether Antonetti, Ferraiuoli, See, Goldman, e.g., was properly granted by ment the district Inc., Int’l, Axtmayer & Hertell v. Medfit court is for abuse of discretion. See Swar- (1st Cir.1993); F.2d 692-93 Hox na, 133; 622 F.3d at 249 F.3d at (ex Pecarsky, Cir.1992) worth, 171. We Bass); also review for abuse of discre- declining to follow Home pressly Rentals, Ruben, concerning tion district court’s decision Inc. v. Port (4th Cir.), evidentiary scope pro- extent and cert. al., et Adventure Pawn James Wm. Moore Moore’s Federal Outdoors Mickalis [iii]; leading approve § treatises note that several Practice see also Am.Jur. 55.11[2][b] Miller, Wright However, logic. example, Judgments Bass’s For & § 2d author- 263. these Bass, following a counsel that once defendant by ities do not reflect the law of this Circuit pretrial "participated throughout pro- the has which we are bound. any responsive pleading,” cess and has filed a rely on from The defendants also a dictum by appear the defendant to thereafter failure more decision in Blair & Co. our recent D.H. liability, should not result in a concession Gottdiener, Cir.2006). (2d 462 F.3d 95 rather, require plaintiff “the but court should There, appropri- we reviewed whether it was supporting liability ... present evidence to to ate for a district court enter a default judgment plain- entered and a should be judgment party against a who failed to re- only supports evidence tiff’s favor if the it.” spond petition to a under the Federal Arbitra- Wright, Arthur R. 10A Charles Alan Miller & Act tion to confirm an arbitration award. Kane, Mary Kay Practice & Federal Procedure observed, decided that it was not. We 1998). Likewise, § at 18 ed. passing, apply "Rule 55 is to to that meant Practice, identifying a circuit Moore’s Federal only step the 'civil actions’ where first has concerning split a failure whether defendant’s i.e., filing complaint— the of a been pleadings stage defend after the can be taken — only default, allegations has and no 55(a) court thus a grounds for Rule concludes Although at 55(a)'s evidence before it.” Id. 107. that Rule that better view is "[t]he supports this statement the view that Rule 55 may language ex- 'otherwise defend' not be apply pleadings stage, it should after the justify not a default once there has been tended not—it responsive pleading is dictum and does cannot' —overrule initial an initial existing precedent contrary. our that a defense.” 10-55 action constitutes any, prior entry because, if ceedings, says, held its of Clause it judg- the default Finkel, 87; at judgment. such F.3d ment it resulted from a “series 95; 10 F.3d at Corp., Enron Oil see Fed. parte ex acts.” Opening Br. of Mickalis 55(b)(2) (providing R.Civ.P. that “[t]he that, Pawn at 8. It observes after its three hearings conduct or make refer collectively law firms withdrew from the entering judgment). prior rals” case March it longer no was able to receive automatic through notification argue that The defendants the district filing system electronic case of docket in entering court abused its discretion activity in the case. Mickalis Pawn con- judgment principal default for three rea- filings by tends that all such First, the district argues sons. Mickalis Pawn that by court or made after March proceedings the Rule 55 were beset ” were Second, parte “ex to the procedural irregularities. extent that both Mickalis Pawn was argue simultaneously defendants the district court sent by failing erred to make specific copy filings by mail, factual those as the findings by a preponderance of the evi- district previously court had ordered must dence that existed. be done. Third, in response request to our sup- But Mickalis Pawn does not assert that plemental briefing, they assert deprived was of actual any notice as to plaintiffs claims are barred filings. these To the contrary, the rec- PLCAA. ord reflects both Mickalis Pawn and Irregularities Procedural of, Adventure only Outdoors not had notice 55(b)(2). Rule “A judgment may default actively in, but participated stage each be if judgment considered void has proceedings Rule 55 before the district been entered in a manner inconsistent court. For example, they objec- each filed

with due process of law.” State St. Bank City’s proposed tions to the findings of fact (internal Co., & Trust at quo magistrate and to the judge’s successive omitted). tation marks Even after a de reports recommending City’s that the mo- defaulted, fendant has the defendant tions for granted.19 be nonetheless ... “entitled to be heard con case, In Mickalis Pawn’s the district court cerning the nature and judg details of the accepted those though submissions even Brock, ment to be entered.” 786 F.2d at Mickalis Pawn —a liability limited company 55(b)(2) provides And Rule that “[i]f which cannot appear except through coun- party against whom a default judg Lattanzio, sel, see 481 F.3d at pur- 140— ment is sought appeared” has any point ported to file them in pro se capacity. litigation, the that party is entitled to alleged Because the irregularities relied days’ seven proceed written notice of the upon by Mickalis deprive Pawn did not it at ing which judgment may default be of heard, notice and an opportunity to be 55(b)(2). entered. Fed.R.Civ.P. we conclude that the district court did not

Mickalis Pawn contends that abuse its in entering discretion a default 55(b)(2) Rule proceedings were judgment pursuant 55(b)(2), conducted to Rule not- in a manner violative of the Due Process withstanding complaints Mickalis Pawn’s 19. Adventure proposed IV, Outdoors filed its own Jewelry and recommendation. See A-1 findings of fact and conclusions of law in F.Supp.2d 644 (describing at 208-09 Adven opposition to those City. submitted proposed findings ture Outdoors' and conclu magistrate judge considered Adventure Out sions). preparing doors' report submissions in her

133 See, requirement. e.g., Mwani v. bin the methods concerning inconsistencies Laden, 1, (D.C.Cir.2005); 417 6-7 F.3d employed.20 service Pipe Supply, & Inc. v. Viktor Sys. M/V and Jurisdiction 2. Personal (5th 322, Kurnatovskiy, 242 F.3d 324 Cir. 55(b)(2). that argue The defendants Rule (9th 2001); Tuli, 707, In re 172 F.3d 712 to make failing court erred the district Assocs., Cir.1999); Garberg & Inc. Dennis preponderance findings, based on 767, 772 Corp., Pack-Tech Int’l v. F.3d evidence, personal juris had that the court Cir.1997). (10th Both defen over each defendant. diction jurisdiction, are a Personal unlike findings that such contend dants however, can, jurisdiction, entering subject-matter prerequisite procedural 55(b)(2). inadvertently Mick or for purposely under Rule And be waived judgment requirement per it argues per that “a se feited. “Because alis Pawn was jurisdiction of all an represents not to have done so. sonal first of discretion” abuse can, right, at it like such Pawn 24-25. The individual other Reply Br. of Mickalis Corp. Ins. Ireland they rights, did not be waived.” also assert defendants Guinee, de objections Compagnie to the v. des Bauxites to abandon their intend personal juris 102 S.Ct. L.Ed.2d court’s exercise district (1982); They point out 492 see also id. upon diction their default. jurisdic (cautioning nothing there press continued to their requirement about “unique personal in their submissions to

tional defense magistrate judge jurisdiction, prevents being which it from court district or rights”); waived like throughout proceedings. the Rule 55 established other ” 213; Sinoying Logistics, 619 F.3d at “R grants a court a motion “[B]efore Produce, DiSapio, Best Inc. v. 540 F.3d first assure judgment, for default (2d Cir.2008); Transaero, 115, 123 Inc. v. that it over personal itself has Boliviana, Fuerza La Aerea 162 F.3d Sinoying Pte Logistics defendant.” (2d Cir.1998), cert. Trading Yi Da Corp., Ltd. v. Xin 1146, 119 S.Ct. 143 L.Ed.2d 1033 (2d Cir.2010). have, however, 207, 213 (1999). Therefore, “a should district court open question “whether a district left personal jurisdiction sponte not raise sua personal juris its investigate court must appeared a defendant has and con when entering over defendant before [a] diction not, sented, voluntarily jurisdic to the (em judgment.” Id. at n. 7 a default Sinoying Logistics, of the court.” tion original). Lyon But see phasis Credit (emphasis original). at 213 F.3d (USA), Alcantara, Sec. Inc. nais Cir.1999) (2d determining (vacating “[I]n de whether waiver objections ju instructing district or forfeiture of fault occurred, has ‘we all of plaintiffs to determine whether the risdiction consider ” Mattel, Inc. jurisdictional by a relevant circumstances.’ “prove could facts evidence”). Barbie-Club.com, Several preponderance Cir.2002) (quoting to Hamilton v. Atlas Tur- appear impose our sister circuits such of contemplates "two-step reject Rule a We also Mickalis Pawn’s contention Because 55 proceedings procedural!/ entry the were im- process” beginning that with of default un- City, having Green, 104, after proper because the indicat- 55(a), Rule 420 F.3d at der it a Pawn that would seek ed to Mickalis entry properly seeking of acted in first 55(b)(2), judgment Rule instead default under moving judgment. before for default default 55(a). sought entry first of default under Rule 134

ner, Inc., 58, Cir.1999), analysis 61 We find the of the 197 F.3d Seventh 1244, denied, 2691, 120 cert. 530 U.S. S.Ct. Insight Spamhaus Circuit e360 Pro- (2000)). It is (7th 147 L.Ed.2d 962 well estab ject, Cir.2007), 500 F.3d 594 helpful. forfeits lished that a its defense of party There, the defendant removed the lawsuit personal jurisdiction by failing lack of from state court then filed an and answer timely defense its initial to raise the defenses, asserting, among other lack of responsive pleading. Fed.R.Civ.P. personal jurisdiction. later, One month at 12(h). But there are “various [additional] conference, pre-trial status moved to may be estopped reasons a from defendant withdraw its and to answer withdraw its Ireland, raising Corp. Ins. issue.” litigation. counsel from It also an- 704, S.Ct. 2099. A 456 U.S. at 102 court nounced, counsel, through that it “want[ed] obtain, consent, implied through per will to participate in the defense no further” jurisdiction if sonal over defendant “[t]he absolutely and would nothing” “do in the [during litiga- actions the defendant litigation. Id. at 596. The district court legal ... tion] amount to submission to responded that the defendant would “have court, jurisdiction whether vol case,” to defend the otherwise it would lose 704-05, untary or not.” at 102 Id. S.Ct. by default. Id. The defendant’s counsel 2099; Highland see also Peterson v. Mu represented that client fully his had “been (9th sic, Inc., Cir.) F.3d informed of that ... the fact default judg- (“Most defenses, including the defense of possibility,” ment is a real and that it was jurisdiction, lack personal be prepared “aware of that and [was] to take waived as a result of course of conduct court, that acting risk.” Id. The on the pursued by during litigation.”), a party understanding that counsel had informed denied, cert. the defendant “it that was a dead-bang (1998). For example, L.Ed.2d 401 we certainty that going [was] be have held that a defendant asserted a entered,” granted the defendant’s motions jurisdictional answer, in its defense but withdraw its answer withdraw coun- actively litigate failed defense until sel. Id. at 597. The court then entered a years later, four forfeited the defense default, upon plaintiffs motion, forgoing the to raise opportunity it sooner. granted judgment a default three weeks Hamilton, 60-62; at accord later. Id. Bank, Meyer, Cont’l N.A. F.3d (7th Cir.1993); Tutt, Yeldell v. timely The defendant moved to vacate (8th Cir.1990). 538-39 60(b). pursuant to Rule The addition, In circuits other have held that motion was denied. defendant then a defendant unsuccessfully who raises a appealed, arguing district court jurisdictional objection outset, at the but had acted improperly inquiring into impression later creates the that he has prior existence of it, may abandoned not seek to renew his entering judgment. Id. jurisdictional argument appeal following rejected The Seventh Circuit the defen- an adverse determination on the merits. dant’s argument entry and affirmed the See Rice v. Corp., Nova Biomed. (7th a default It Cir.1994), judgment. no reason “s[aw] 914-15 cert. require the district to raise sua S.Ct. L.Ed.2d 855 (1995); Peterson, defenses, sponte may, see also affirmative which F.3d at 1318 (9th Cir.) course, forfeited, (describing this be waived or on behalf strategy as “sandbagging”). an appearing party pur- who elects not to entering judgment in of lia- its discretion Id. at 599. for itself.” defenses sue those the motion for Rule bility denying nor in The court continued: 60(b) relief.” Id. at 602. district error in the no perceive We defendant] that [the court’s conclusion case, Similarly, in this Adventure intentionally elected to aban- Spamhaus initially liti and Mickalis Pawn Outdoors it with- when its available defenses defense, don later jurisdictional their but gated consideration defenses from course, drew those district announcing changed that it was indicated by the court and defending that would cease Spam- accept a default. prepared likely would result. though even default confirmed that authority haus’ then-counsel Project persuasive Spamhaus no in the defense “participate for wished that a defendant proposition for the nothing.” It absolutely appears and “do if it jurisdictional further” feits its defense kind of to treat this that press not erroneous a district court to de was before defenses, willfully of from the voluntary abandonment but then withdraws fense defaults, being a waiver. pursued, as even after litigation raised but not court, doing so. consequences before Based on its conduct warned Circuit, We, under- no rea Spamhaus that like the Seventh “see have no doubt we it, district court to raise require available to consis- son to the defenses stood in the the defense of lack of sponte” defenses sua tently asserted those parties on who have behalf proceedings those early stages of those defenses for pursue not to “elect[ed] to abandon affirmatively elected then Id. at 599. [themselves].”21 district court. before the those defenses Spamhaus to to allow see no reason otherwise, rely the defendants Arguing of that decision escape consequences Gottdiener, & on D.H. Blair Co. proceeding. this stages in later Cir.2006). There, the district F.3d 95 omitted). (citations judgment The court a Rule 55 default at 600 court entered Id. who, jurisdictional of defendants after group concluded that “[b]eeause plaintiffs removing to raise to federal court Spamhaus now seeks challenges part confirm in and vacate petition the district waived and neither have been award, answer arbitral failed to duty part to resur- an this court has the court nor We vacated the them, petition. court did not abuse rect the district defaulting, the in- whereas in attempt distinguish answer before 21. The defendants First, case, Project Adven its an- Spamhaus two bases. neither defendant withdrew stant judgments argues that default ture Outdoors the district court. or had it stricken swer Circuit, as in the Seventh are not disfavored Project suggests Again, nothing Spamhaus here, Stouffer, citing & Char they are Pretzel withdrawing step of the ministerial Inc., Adjusters, F.3d Imperial tered v. finding to the court’s answer was relevant Cir.1994). (7th Spamhaus nothing in But anything in our own Neither does forfeiture. concerning reasoning Project suggests that its suggest court must precedent that a district judg default depended on whether forfeiture declar- a defendant’s answer before "strike" And disfavored. were or were not ments Cf., e.g., ing to be in default. that defendant question whether as to there is some 178-79; Brock, Cotton, at F.3d attitude, prevails today. if it existed Pain, (all 64; uphold- F.2d at 65 Au Bon Ill., 473 Trustees Sun v. Bd. of Univ. ap- against ing judgments entered Cir.), (7th cert. defendant, noting without if the de- pearing 168 L.Ed.2d prior to had been stricken answer fendant’s (2007). default). entry of Second, point out the defendants its Project, defendant withdrew Spamhaus remanded, Act, instructing the district nor does it concern a scenario in the which a court plaintiff presented complete court to decide whether was with a sought evidentiary record prior proceed- entitled to the relief notwith- from a ing. standing the defendants’ failure to answer petition.

the decided that “[w]hen Adventure Outdoors also asserts that court it [an has before extensive evidentia- our decision Brock demonstrates that a record, ry] only allegations rather than the plaintiff seeking a judgment default must party complaints, judg- of one found in the prove its including the existence of case— ment the court enters should be based on personal jurisdiction by preponderance a— the record.” Id. at 109. evidence, even after a defendant has Brock, In defaulted. the defendants failed argue by analogy The defendants re-appear to at trial following a two-week granted district court should not have adjournment. The district court entered a City’s judgment motion for default defendants, against default but then determining here without first that suffi- opted complete the trial record tak- cient evidence existed in the record to ing testimony from plaintiffs wit- sustain a finding personal jurisdiction eventually nesses. entered a by a preponderance of the evidence. The judgment default accompanied by findings analogy does not hold. D.H. Blair con- of fact and conclusions of law. appeal, On unique, cerned a quasi-appellate proceed- we vacated and remanded for further pro- ing: petition to confirm or vacate an Brock, ceedings. See F.2d at 63. Ad- pursuant arbitration award to the Federal venture Outdoors contends that Brock § Arbitration Act. See 9 (permit- U.S.C. should be read requiring that a trial be ting parties to an “apply arbitration to prior held entry judgment. the court ... for an confirming order 10(a) award”); § (permitting parties id. Although Brock did result in the vacatur award). petition for vacatur of an arbitral of a default judgment appeal, it does In considering petition to confirm support Adventure argu- Outdoors’ award, vacate an arbitral There, a district court ment. we remanded not for the typically has at its disposal the full eviden- district court adjudicate the merits of tiary record from underlying defenses, arbitra- the defendants’ permit but to tion. We concluded in D.H. Blair that defendants to be heard concerning the “na- judgments “default ture judgment and details of the confirmation/vacatur to be proceedings generally are inappropriate,” in light entered trial record” th[e] Blair, D.H. 462 F.3d at and therefore the scope of the requested by relief held that district courts should plaintiff. instead Id. at 65. Although it is true petitioner’s treat a application to confirm that the district court in opted Brock had or vacate an arbitral award as “akin to a to continue proceedings the trial following motion summary judgment,” default, id. This the defendants’ nothing in our de- case, Blair, unlike D.H. does not concern cision on appeal ratified the district court’s proceedings under the Federal Arbitration decision in that respect.22See id. it, it, Although parties do not advert to we and we held that the district court have inquire also reviewed our was personal jurisdic- decision in Credit bound to into (USA), Alcantara, Lyonnais entering judgment. Securities tion before Inc. v. (2d Cir.1999). case, 183 F.3d 151 In that appearance The defendants' and withdraw- complaint defendant failed case, to answer the but proceedings al from the in this con- trast, entry later contested the of default Through forfeited their defense.

137 brief, and Adventure Outdoors opening ap- The defendants The PLCAA only by way of footnote. See supple- in raised it belatedly their argue, pear Br. of Adventure Outdoors at 32 Opening the district court briefing, that mental judg- ordinarily argument deem an a default n. 12. not have entered We should claims were it not “suffi City’s forfeited where has been be ment because briefs,” in v. ciently argued Norton by the PLCAA. barred (2d Club, 114, Cir.), 117 145 F.3d Sam’s law axi an “ancient common It is denied, 1001, 511, 525 U.S. 119 S.Ct. cert. thereby defendant who defaults that a om” (1998), it is 424 such as when 142 L.Ed.2d allega factual “well-pleaded” admits all in a only addressed footnote: complaint. Vt. Ted in the tions contained However, Co., at 246. 373 F.3d dy Bear men- argument not consider an We do not a court “need true that district is also only adequate- in a footnote to be tioned a alleged facts constitute agree preserved appellate or for re- ly raised Pain, Au Bon 653 of action.” valid cause view. The enormous volume briefs Indeed, recently sug have we F.2d at 65. panel on each arguments pressed that, entering judg prior to default gested every sitting precludes this court at our “required to deter ment, court is a district in scouring through footnotes search of allegations [plaintiffs] mine whether possibly point meritorious some liability as a defendant’s] establish [the of sufficient counsel did not consider Finkel, 577 F.3d at 84. law.”23 matter of of the importance part to include as argument. some uncer- that there is recognize We le- City’s claims were whether the tainty 1462, Restrepo, v. 986 F.2d States United sufficient, possible of their light gally (2d denied, 843, Cir.), cert. 1463 But we need by the PLCAA. preemption (1993). 130, 126L.Ed.2d 94 the district decide whether not sure, be the doctrine forfeiture To entering its discretion abused disregarded be our prudential the defendants have because judgment, Nortel Networks See In re Mickalis discretion. appeal. this defense on forfeited (2d 129, Litig., 539 F.3d 133 Corp. Sec. the PLCAA its did not address Pawn Cir.2001); (4th v. forfeiture, Nishimatsu Constr. Co. implicitly, if unwit- 780 the defendants Bank, 1200, (5th F.2d 1206 Nat’l 515 jurisdiction the dis- Houston tingly, established Cir.1975); Seventh-Day Corp. Gen. Accordingly, did the district court trict court. Conf. 402, McGill, (6th F.3d 407 finding Adventists v. 617 failing to make a final not err - -, denied, Cir.2010), 131 cert. preponderance of the evi- jurisdiction 2097, 891, See, 2011 WL 179 L.Ed.2d Sinoying Logistics, 619 F.3d S.Ct. e.g., dence. Lane, 18, (U.S. 2011); Apr. Black v. ("[A] raise 1457562 district court should not at 213 1395, Cir.1994); (7th Marshall 22 1399 sponte a defen- F.3d personal jurisdiction sua when (8th Cir.2010); consented, Baggett, 852 voluntarily appeared and dant has DIRECTV, court.”). not, Huynh, 503 F.3d Inc. v. Hoa of the - U.S. -, Cir.2007), (9th cert. Lyonnais helpful Credit do not find therefore (2008); Bixler S.Ct. 172 L.Ed.2d the defendants here. Foster, (10th Cir.2010); F.3d Co., 402 F.3d appear to have v. Mass. Mut. Ins. sister circuits Cotton 23. Most of our Life Cir.2005). (11th According to may expressly a district court held circuits, "[e]ntry of default plaintiff's judgment unless the these a default enter challenging preclude party from does not valid facial claim for relief. complaint states a Ctrs., Inc., appeal.” sufficiency complaint on See, Hair Care e.g., Conetta v. Nat’l 852; Marshall, (collecting Cir.2001); id. (1st 616 F.3d at see Ryan v. F.3d 75-76 cases). Network, Homecomings Fin. ” Cir.2008). parties We ourselves asked the tion parties. over the “R Best Pro- supplemental concerning duce, submissions (citing 540 F.3d at 123 In re Texlon applicability of the PLCAA. But we Corp., Cir.1979)); doing do think that our so constituted Indus., Covington A.G., Inc. v. Resintex by any a decision on Court issue (2d Cir.1980). 629 F.2d case. must be free to seek We additional Had the defendants asserted their void briefing thereby on this issue without con- ness argument before the district court in ceding inappropriate. forfeiture is instance, they might first have done so submissions, Having reviewed con- we 60(b)(4). pursuant to Rule pro That rule clude that the unusual action the Court just terms, vides: “On motion and ignoring the forfeiture is unwarranted party relieve a ... from a final here. judgment ... judgment [if] the is void.” We have considered the remainder of ” 60(b)(4); Fed. R. Civ. see “R Best Pro arguments defendants’ concerning the duce, 540 at 122-23 (explaining that a City’s purported plead failure to a cause of seeking defendant challenge a default action sufficient to support entry of default judgment personal jurisdiction for lack of judgment, and we conclude that ar- those 60(b)(4)). may proceed under Rule guments are without merit. therefore find it appropriate to consider precedent 60(b)(4) our governing Rule III. Voidness for Lack mo of Personal Ju- tions. risdiction The defendants contend that if even judgment “A is void under Rule district court any did not commit proce- 60(b)(4) of the Federal Rules of Civil Pro entry dural error in its of default judgment cedure ... ‘if the court that rendered it 55(b)(2) during the Rule proceedings, the lacked subject matter, default judgment is nonetheless “void” be- parties, or of the or if it acted a manner cause the district court lacked ” inconsistent with process due of law.’

jurisdiction ab initio. The defendants as- Grace, 443 F.3d at 193 (quoting In re sert that both a application correct 1099). Texlon Corp., 596 F.2d at long-arm statute, New York C.P.L.R. “ ‘Whereas we generally review motions 302(a)(3)(ii), § and principles of constitu- pursuant 60(b) to the provisions of Rule tional process due under the Fifth and discretion, for abuse of we review de novo Fourteenth require Amendments us to 60(b)(4) a district court’s denial aof Rule hold personal jurisdiction was absent ” Media, motion.’ Viertel, Burda here, Inc. v. matter, even as a prima facie (2d Cir.2005) 417 F.3d (quoting that the district repeated court’s determi- Co., State Bank St. & Trust nations to the 374 F.3d at contrary were in error. Be- 178). because, That is cause we if the underlying conclude that the defendants for- judgment jurisdictional defense, jurisdiction, feited their is void for lack of “it per therefore the district is a se court’s abuse of discretion assertion of for a district personal jurisdiction over court to prop- deny them was a movant’s motion to vacate er, reject we 60(b)(4).” defendants’ the judgment voidness ar- under Rule Id. gument. (internal quotation omitted); marks accord Spamhaus Project, 500 F.3d at 598. “ A. Governing Law judgment ‘[T]he is either void or it is ” A default judgment is “void” if it not.’ Cent. Vt. Pub. Corp. Serv. v. Her bert, rendered a court that jurisdic- (2d lacks Cir.2003) 341 F.3d (quot- jurisdic challenge Mortg. Inc. v. then Props., Sw. Recreational ing (5th proceeding.” in a collateral grounds tional Cir. 804 F.2d Corp., Serv. Ireland, at 456 U.S. 1986)). Corp. Ins. ” Produce, 2099; “R see also Best S.Ct. Analysis B. 123; Petroleum Ltd. v. 540 F.3d at Norex Indus., Inc., Access history of this procedural

The Cir.2005), cert. analysis. voidness dispositive of our case is (2006); Tran 164 L.Ed.2d 860 S.Ct. in its may have erred district court (Sec saero, 729; Restatement City had made a that the determination ond) § 65 cmt. b. In such a Judgments of personal jurisdic showing facie of prima case, judgment of a for lack of “voidness defendants, for the over each of the tion jurisdiction be on a personal can asserted Wesley’s con Judge reasons discussed to Rule challenge” pursuant collateral already con opinion. But we have curring ” 60(b)(4). Produce, “R Best 540 F.3d at litigating, and by appearing, that cluded the intentionally withdrawing from then forfeited their the defendants proceedings, ap But “when a defendant result, As a the

jurisdictional defense. jurisdiction,” and we in pears challenges jurisdiction of submitted to defendants that to constitute terpret “it[s] judgment court. default the district to the court’s agreefment] be bound sup thus the court rendered was jurisdictional determination on the issue.” jurisdiction is not by personal and ported Transaero, 729; Corp. 162 F.3d at see Ins. void. Ireland, 456 U.S. S.Ct. 2099 to assume that a appear The defendants (“By submitting jurisdiction to the person- void for lack of judgment default is purpose challeng court for the limited even where a defendant’s jurisdiction al jurisdiction, agrees to ing the defendant the district court litigation tactics before abide that court’s determination on the preservation were inconsistent with Ross, jurisdiction.”); issue of SEC cf. The defendants jurisdictional its defense. (9th Cir.2007) (defen rely the well-established appear also to on not, through Rule dant-intervenor does that a defendant who does principle 24(a) intervention, ju personal consent to instance, complaint in the first answer risdiction, does to have the “consent[ ] but to be judgment suffers a default and later court determine all issues district it, chal- against may subsequently entered case, Al including jurisdiction”). issues of for lack judgment the default as void lenge may, if it though appearing defendant jurisdiction. personal disagrees with the district court’s thresh ruling personal jurisdiction, on seek old the criti The defendants overlook ruling appeal, reversal of that the de who cal distinction between defendants preserve its defense properly fendant must only if to chal “appear” court—even for review. appellate jurisdiction those lenge the court’s —and and Mickalis Sinoying Logistics, 619 Both Adventure Outdoors do not. See who “appearing” defendants. Both non-appearing A defendant Pawn were F.3d at 213. ap- filed notices of not, right its retained counsel who by defaulting, forfeit does challenged Both on their behalf. judgment pearance challenge any ensuing with two rounds of jurisdiction. City’s pleadings “A defen personal lack of 12(b) motions. Adventure Outdoors ignore judicial Rule always free to dant through case sum- litigate continued to judgment, a default proceedings, risk Pawn, mary judgment; though Mickalis it to “escape consequences” fendants discovery, prior withdrew to the close of strategic their simply decisions because “appeared vig- defended [and] nonetheless they proven disadvantageous have to be orously” the course of “about two over 600; Spamhaus Project, them. 500 F.3d at years litigation.” Opening of active Br. of Invs., LNC Inc. v. Nat’l Westminster cf. By submitting at 4. Mickalis Pawn Bank, Cir.2002) 176 n. 8 jurisdiction of the district court to decide (noting particularly would be un “[i]t jurisdiction question —but usual” to an argument despite “address its withdrawing proceedings, then from the appeal abandonment on .... where the litigating rather than final case to appears, here, abandonment does pre- defendants failed to —the strategic be a choice than rather an inad jurisdictional serve their defense for re- error”), vertent cert. appeal. view on And because failed (2003). 155 L.Ed.2d 1063 defense, preserve they acquiesced court, to the of the district Our decision not to excuse the forfeiture resulting judgment the of that court is not by is respect also informed our for the void.24 jurisdiction limits of our own —limits recognize We that even sought through where a defense defendants to evade forfeited, appellate has been review is not their strategic decisions to default. necessarily “[T]his foreclosed. Court has jurisdiction The core of our appellate is discretion to decide merits of a forfeit- to review “final decisions” of the district ed claim or defense where the issue is § courts. See 28 U.S.C. 1291. With limit purely legal and there is no need for addi- exceptions, ed generally Myers see v. fact-finding tional or where consideration (2d Corp., Hertz 624 F.3d 552 Cir. necessary this issue is to avoid manifest 2010), only final judgments orders and injustice.” Balsámico, Patterson v. 440 appealed, be Ridge, see Cruz v. 383 (2d Cir.2006) (internal F.3d 112 quota- (2d Cir.2004) curiam). F.3d 64 (per omitted). However, tion marks will we not general “[T]he rule that a party [is] is excuse the defendants’ forfeiture in this single appeal, entitled to a instance, to be deferred every where there is indication until judgment final that the has been defendants’ default was entered.” not the — inadvertence, Indus., product of but a Mohawk Inc. Carpenter, deliberate v. tactic instead. U.S. -, We will not allow 599, 605, the de- 130 S.Ct. 175 L.Ed.2d parties’ appeal Some of the pre-default position, submissions on thereby permitting its assume that our review of the defendants’ Here, dispute resolution of the on its merits. challenge judgment governed to the default contrast, by the defendants seek not to re by sure, balancing a three-factor test. To be rather, open litigation; this case for further appellate district and considering courts they urge that this lawsuit be dismissed alto grant whether to judg relief from a default gether. Opening Br. of Mickalis Pawn at 60(b) ment under ordinarily Rule consider (requesting that "the matter [be] dis " '(1) three criteria: whether the default was missed”); Opening Br. of Adventure Outdoors willful, (2) whether the defendant demon (urging at 61 this case be remanded defense, strates the existence of a meritorious dismiss”). Moreover, "with instructions to (3) whether, extent, and and vacating to what the “voidness” vel non of is not a nondefaulting default will party cause subject ” matter to discretion. We conclude Green, prejudice.' (quoting 420 F.3d at 108 inapposite these considerations render Co., State St. Bank & Trust 374 F.3d at 166- discretionary standard three-factor test in 67). But that framework assumes that the this instance. question defendant seeks to be restored to finality rule embod- (internal means to avoid (2009) marks omit- quotation § ted). ied 28 U.S.C. Moreover, disap- party if a who was finality requirement including

In ruling interlocutory under an could pointed of our defining scope “ Congress ‘expressed] appeal ruling simply § of that obtain 28 U.S.C. lawsuit, trial erroneous refusing prosecute that some his or her preference rule[25] ap- until the go uncorrected rulings merger would adherence to than hav- rather judgment, a final peal dilatory party reward that bad by piecemeal ap- punctuated ing litigation tactics. Such a result would con- faith which trial court decisions 41(b) review of pellate purpose of a Rule flict with In re litigation.”’ terminate the do not prosecute, failure to which dismissal for Litig., Site Trade Ctr. Disaster World and harass- penalize is to dilatoriness Cir.2008) (2d (quoting Rich- F.3d ment of defendants. Roller, ardson-Merrell, Inc. v. Co., Elec. 186 F.3d Shannon Gen. L.Ed.2d 340 Cir.1999) (2d (brackets, ellipsis, cita (1985)). motions are dispositive Denials tions, quotation internal marks omit on an ordinarily appealable therefore ted; added); also Rabbi Jacob footnote see See, e.g., Napoli interlocutory basis. Mendoza, Province Joseph Sch. v. Windsor, 168, 170 New Town of (2d Cir.2005); 207, 210-11 Martens v. curiam). Cir.2010) (per (2d Cir.2001). Thomann, the defendants permit cannot arise here. To over- The same concerns litigation pro the normal to short-circuit forfeiture would be to look the defendants’ a withdrawing, inducing by cess ... an end-run around the final “permit[ ] them, and against judgment to be entered Defaria, rule.”26 Palmieri v. judgment interlocutory re facto obtaining de then Cir.1996). (2d 136, 140 But see Savin non-appealable deci otherwise view over Cir.1990) Ranier, 898 F.2d observed, to respect with have sions. We judg- from default (reviewing, appeal by plaintiffs: conduct strategic similar ment, appearing the merits of defendant’s proceed refuse to litigant could [I]f defense, plaintiff did jurisdictional where ruled judge a trial whenever had forfeited that claim that defendant him, to enter a dis- wait for the court by defaulting). defense prosecute, and then for failure to missal to overlook the defen- We also decline judge’s interlocu- obtain review of their assertion forfeiture based on dants’ decision, policy against piece- tory grave hardship financial that suffered be se- and review would litigation meal to defend a lawsuit New by being forced procedural This verely weakened. appear to contend a York. The defendants provide in effect technique would 2099; Eng. NAPs Tel. Co. Global that S. New "merger "[w]hen rule” holds 25. The (observ- Inc., (2d Cir.2010) in a a final district court enters case, interlocutory in the process orders rendered for a ing it does not violate due "that thereby merge judgment,” 37(b) ... with the case impose Rule court to under district appellate rendering review. them amenable jurisdic- subjecting party personal order Shannon, F.3d at 192. party’s for the in that court as a sanction tion discovery comply with a order seek- failure to prejudiced Pawn's default also 26. Mickalis relating ing facts court's to establish discovery City’s ability to obtain further it”). personal jurisdiction over Corp. jurisdiction. Ins. related to Cf. 707-09, Ireland, U.S. at unfair to expect that it would be them to sanee” caused Adventure Outdoors and appel- until after trial to Inj., have waited seek Mickalis Pawn. Mickalis Pawn ¶ 792042, 1; court’s Inj., late review of the district adverse WL Adventure Outdoors ¶ (same). 792023, 1 interlocutory concerning personal injunc- 2009 WL decisions Fans, provide tions for jurisdiction. Citing appointment Coast Inc. of a Gulf (the Master”) Inc., special master Importers, “Special v. Midwest Electronics (11th Cir.1984), they urge implement, and monitor the defendants’ with, delay compliance court’s decision to certain the district remedial meas- adjudication jurisdictional contemplated by injunctions. ures final of them de- ¶ “put Inj., fense until trial in the uncom- Mickalis Pawn [them] WL having position prepare fortable for a Paragraph injunction provides, 3 of each [they] if might full-blown trial even eventu- respect with to the duties of Special claim,” ally prevail jurisdictional on the id. Master: at 1511. It will be the responsibility Spe- ensure, cial Master to to the fullest ex- sympathy without

We are not practicable, tent that from the effective sentiments, necessarily these nor do we [injunction] forward, date of this fire- Wesley’s disagree Judge with conclusion arms sales are [the defendant] made jurisdic the district court erred its conformity in full applicable with laws analysis. tional But the Supreme Court pertaining to firearms and that [the de- has possibility made clear “the that a adopts appropriate prophylactic fendant] ruling may be erroneous and impose prevent measures to violation of the fire- litigation expense” additional is not a suffi arms laws. affording appellate cient basis for review ¶ interlocutory over decisions. Richardson- Paragraph Id. 3.27 injunction of each Merrell, 472 U.S. at 105 S.Ct. 2757. mandates that adopt prac- [the defendant] shall those Injunctions

IV. The in opinion tices that the of Special the Master serve prevent to in whole inor We review the district court’s issuance part[28] illegal the sale of firearms. a permanent injunction for abuse of shall adopt [The defendant] also those Christ, discretion. See Third Church of prophylactic practices that in the opinion York, Scientist New Special of the Master will serve to pre- Cir.2010). 667, 669

vent guns movement of into the illegal market. Injunctions A. The Terms ¶ (footnote added). Id. 7 Simultaneously entry with of a default judgment, imposed the district court sepa- injunctions The contemplate several rate, substantively identical, but perma- ways by which the defendants become injunctions nent public subject First, to “abate the nui- penalties. any partic- injunctions specify 27. The phrase certain methods part” appears 28. The “in whole or in monitoring be used in the defendants’ com- only injunction. in the Mickalis Pawn Com- observation, pliance, including in-store vid- pare Inj., Mickalis Pawn 2009 WL surveillance, eotape monitoring, records 7,¶ Inj., with Adventure Outdoors 2009 WL repeated integrity testing,” “random and in- ¶ 792023, 7. ventory inspections, and instructional train- ing employees. for the defendants’ Mickalis Inj., Pawn 2009 WL V4. injunction imposed manent after default pur- defendants a “straw by the ipation judgment). in violation any sale “otherwise chase”—or State, Federal, regula- or local law or appealing injunctions In entered tion,” by Special Mas- as determined them, principally the defendants by a punishable a violation ter —constitutes injunctions that argue are unconstitu with each successive that increases fine vague tionally and that violate the ¶ 12. The term “straw violation.29 Id. requirements of Federal Rule of Civil Pro including is defined as sale purchase” “[a] 65(d). cedure de novo We review whether investigator conducting ... made to an 65(d). injunctions comply with Rule Purchase,’ Straw which shall ‘Simulated Dist., See Garcia v. Yonkers Sch. substantially purchase a form as mean (2d Cir.2009). 97, 103 Complaint filed described the Amended 65(d) provides “[e]very Rule action, example, paragraph in this (A) granting injunction order ... must: ¶ 13(iii). injunctions also 188.” Id. issued; (B) why state the reasons state provide, generally, any more other (C) specifically; its terms describe in by ... which ] [the defendant] “[a]ction[ by referring reasonable detail—and not any requirement^]” to evade of the seeks complaint or other document—the act injunction of the constitutes a violation. required.” or acts restrained or Fed. ¶ Finally, any by failure the defen- Id. 65(d)(1). R.Civ.P. We have interpreted cooperate Special “to with the Mas- dants 65(d) injunction requiring Rule as that “an ter,” Special determined Master specific enough ap- ... be and definite himself, a violation. Id. constitutes prise of the scope those within its conduct fully comply with the If the defendants being proscribed.” S.C. Johnson & terms, injunction each termi- foregoing Son, Co., Inc. v. Clorox 240- years. three Id. automatically nates after (2d Cir.2001) (internal quotation marks ¶ Any injunction, violation of the how- omitted). The ex- Supreme Court has any applicable “violation of an ever—or plained: regulation” certified to firearms law 65(d) specificity provisions Rule [T]he Special Master— have occurred requirements. are no mere technical running “will re-commence un- designed prevent The Rule was Compliance Period from the three-year part on the certainty and confusion ¶ violation.” Id. 18. date of the orders, injunctive those faced with Governing possible founding B. Law to avoid the of a con- tempt vague citation on a decree too not, defaulting, The defendants did injunctive be an or- understood. Since challenge the lawfulness right forfeit the prohibits der conduct under threat of Finkel, injunctions. 577 F.3d at of the judicial fairness re- punishment, basic Brock, 65; 6; also 83 n. 786 F.2d at see enjoined explic- receive quires those (va- Spamhaus Project, 500 F.3d at 603-04 what precisely it notice of conduct is injunction imposed after cating permanent outlawed. as violative of Rule Lessard, 473, 476, Inc., 94 65(d)); 515 v. 414 U.S. Mgmt. Dynamics, v. Schmidt SEC (1974) (footnotes (2d Cir.1975) 713, 801, (vacating per- S. Ct. 38 L.Ed.2d 661 F.2d 814 injunctions drawn from this injunctions require each defendant would be 29. The 792042, court; $25,000 Inj., WL sum. Mickalis Pawn 2009 post a bond with the district imposed any monetary penalties for violations ¶¶ 11-12. 144 65(d) omitted). case,” Grp., ular Forschner 124 F.3d at 406 Rule is satis

and citations (internal omitted); quotation can marks see enjoined party ascer “only if the fied Brand, Realty, order Inc. v. Patsy’s corners also I.O.B. tain from the four (2d Inc., 209, Cir.2003); or re 220 acts are forbidden 317 F.3d precisely what White, 110, (2d Giuliani, 1454, 533 F.3d v. 84 F.3d 1467 quired.” Petrello Brooks (internal (2d Cir.2008) quotation denied, marks Cir.), 117 114 cert. 519 U.S. S.Ct. omitted). (1996); 136 L.Ed.2d 375 Waldman Inc., Landoll, F.3d Publ’g Corp. 65(d) general to serve two Rule is said Cir.1994). (2d injunction may An uncertainty and prevent “to purposes: ” “enjoin possible ‘all breaches of the law.’ of those to whom the part on the confusion Hull, Waterbury B. Inc. v. John Petro directed,” and to “that injunction ensure is Prods., Inc., (2d 588 F.2d leum precisely court knows what appellate Cir.1978) (quoting Hartford-Empire Co. v. Son, 241 Johnson & reviewing.” S.C. States, United 323 U.S. 65 S.Ct. (internal quotation marks F.3d at 241 (1945)). 373, 89 L.Ed. 322 Schmidt, omitted); see also 476-77, 713; Meddaugh, Lau v. curiam), (2d Cir.2000) (per Analysis C. 833, 122 rt. S.Ct. ce agree with the defendants (2001). L.Ed.2d 44 We have cau injunctions portions that several are injunctions satisfy that do not tioned that overbroad, insufficiently specific or or oth 65(d) requirements of Rule “will not 65(d). erwise violate Rule scrutiny.” appellate Corning

withstand Ltd., Elecs., Inc. v. PicVue First, injunctions impose on defen (2d Cir.2004) curiam) (internal (per obligation dants an to act “in full con omitted). quotation marks formity applicable pertaining with laws firearms,” complying In with “adopt[ appropriate addition Rule and to ] 65(d)’s specificity requirements, prophylactic prevent district measures to viola laws, courts must take care to ensure that in- tion” of those specifying without junctive Although not overbroad. “applicable” identifying relief is which laws are “a wide range ways district court has of dis- which the defendants must framing injunction comply cretion terms it alter their behavior to with those prevent wrongful deems reasonable to con- Inj., laws. Mickalis Pawn 2009 WL ¶ ¶ duct,” 792042, 3; it is nonetheless “the essence of (requiring see also id. equity jurisdiction” only that a compliance” “applicable court is “full with fire empowered grant regulations”). “to relief no broader arms laws and A directive necessary than “appropriate” to cure the effects of the to undertake measures does harm caused the violation.” Forschner not “describe in reasonable detail ... Co., Trading Inc. v. Grp., required,” Arrow act or acts restrained or Fed. (internal Cir.1997) 65(d)(1), R. quotation provide Civ.P. nor does it “ex omitted). marks have that plicit precisely instructed notice of what conduct is outlawed,” Schmidt, injunctive “narrowly relief should be tai- 414 U.S. 94 violations,” Indeed, specific legal Pereg- lored to fit that S. Ct. 713. we have said to 65(d), Myanmar Segal, injunction rine Ltd. v. with Rule “an comply (2d Cir.1996) (internal quotation specific simple 50 more than a marks must be com omitted), and that obey the court must “mould mand that the defendant the law.” Ltd, to partic- Peregrine Myanmar each decree the necessities of the 89 F.3d at 51.

145 Second, injunc Special that the Master’s decisions are made appears it sub- tions, read, only “straw fairly prohibit ject only “arbitrary not capricious” re- illegal prac kind of purchases” injunctions sole The specify view. Id. further —the City’s in amended com tice identified the if that a defendant is unsuccessful in chal- other, types of unidentified plaint decision, lenging Special the Master’s the —but injunction An well. practices sales as pay Special defendant “shall the Master’s to restrain the ¶ when seeks overbroad attorneys’ costs and fees.” Id. 10. conduct, in engaging legal from defendants power “The of the federal courts engaging illegal conduct that

or from appoint special masters to monitor com fairly subject litigation. of was not the pliance with their Materials, LLC, remedial orders is well Spurlino Lineback v. Cir.2008) established,” (7th United States v. Yonkers Bd. that an (noting F.3d Cir.1994), of Educ, 29 if in a F.3d cert. injunction is overbroad it results pro contempt “likelihood of unwarranted 115 S.Ct. (1995), ceedings for acts unlike or unrelated to L.Ed.2d special and a master (internal originally judged unlawful” possesses power those some to “determine the omitted)); Spamhaus quotation marks scope authority,” of his own Bridgeport injunc Project, (vacating Guardians, 500 F.3d at 604 Delmonte, Inc. comply with the rule (2d Cir.2008). “fail[ed] tion 214, 219 But the Supreme injunctive courts to tailor relief requiring Court has also warned that use of “[t]he (inter found” scope to the of the violation judges perform masters is to aid in the omitted)). quotation nal marks judicial duties, specific they may ance of as cause, progress arise of a and not to injunctions problematic are also be- displace Buy the court.” La v. Howes vest the cause of the extent which Co., Leather Special Master with discretion to deter- (1957) (citation 309, 1 L.Ed.2d 290 injunctions of them- mine the terms omitted). quotation internal marks Seri Paragraph injunction 7 of each selves. questions ous constitutional arise when a requires “adopt the defendants those opinion Special delegated power master is practices in the broad to deter prevent injunction serve to whole or Master mine the content of as well part illegal sale of firearms” and effectively powers wield the court’s “adopt prophylactic practices those that in contempt. “If the signifi master makes will opinion Special Master cant by decisions without careful review guns prevent serve to the movement judge, judicial authority the trial is effec illegal into the market.” Mickalis Pawn tively delegated to an official who has ¶ Inj., (emphases add- WL appointed pursuant III been to article ed). cooperate A “failure to defendant’s Meese, Meeropol the Constitution.” Special with the Master” constitutes a vio- (D.C.Cir.1986). ¶ Moreover, injunctions lation. Id. aside, questions Constitutional we

provide any dispute as to whether a that, least, very injunc conclude at the occurred, or any disagree- violation has sweeping delegations power tions’ to the concerning decisions made ments 65(d). Master, Special Master violate Rule “A Special are to be resolved required court is to frame its orders so in the in- Special Master himself first ¶ obey that those who must them will know Although party may stance. Id. what the court intends to forbid.” Dia appeal “any practice decision or court, Carba, Ltd., Special pulse Corp. Master” to the district Am. v. 626 F.2d 146 otherwise, Cir.1980) added); if (2d that would im ment terms

1108, (emphasis 1111 65(d) Corp., or a posed unilaterally, v. violate Rule also United States see Microsoft (conclud- (D.C.Cir.1998) 935, See, e.g., 147 F.3d 954 process rights. defendant’s due improper insofar as injunction Inc., was ing Sec., that 101 Jersey v. First F.3d SEC determined, must be parties’ rights (2d “the 1450, Cir.1996), 522 1479 cert. master). enforced,” by special merely not 21 118 S.Ct. 139 L.Ed.2d U.S. Warrob, Inc., (1997); Stauble v. 13(iii) injunc- of each Finally, Paragraph Cir.1992). (1st The fact that oth by conduct reference prohibits certain tion willing er defendants were to settle volun drafting complaint. This to the amended City essentially the same tarily with the efficient, expressly however is technique, injunctions 65(d), terms as those included by provides Rule which prohibited let alone itself injunction” prove, an does not tend “[e]very granting order establish, injunctions comply with in reasonable detail—and must “describe complaint or other by referring comport the Federal Rules and with due act or acts restrained or document —the process.30 (em- 65(d)(1)(C) required.” Fed.R.Civ.P. carefully We have considered the other added). phasis arguments by parties concerning made City injunctions defends the injunctions to be without and find them “[t]wenty oth principally on the basis merit. ne

er firearms dealers have entered into gotiated agreements settlement with CONCLUSION City virtually under the same terms.” reasons, affirm foregoing For the we (Adventure City Br. of Opening Outdoors’ entry judgment against of default Mickalis 58; Opening see also Br. of Appeal) Outdoors, Pawn and but vacate Adventure (Mickalis Appeal) Pawn’s at 57. But there injunctions issued them and settle obvious difference between remand the matter to the district court for voluntary agreements, ment which are proceedings. further freely negotiated par between contracts ties, injunctions, which are unilateral Judge separate WESLEY concurs in a powers

directives backed a court’s contempt. may opinion. Parties consent to settle- however, Co., omitted); reject, argu

30. the defendants' see also Steele v. Bulova Watch injunctions 280, 289, principles ment that violate L.Ed. 73 S.Ct. sovereignty, comity, and federalism. To (1952) (”[T]he state exercising District Court its sure, be court's to frame "[t]he discretion equity powers may persons proper- command equitable relief is limited considerations of ly perform before it to cease or acts outside its federalism,” Salinas, Knox jurisdiction.”); Jersey City territorial New (internal (2d Cir.1999) quotation 129-30 York, 473, 482, New 283 U.S. omitted), punish marks State cannot "[a] Here, (1931). L.Ed. 1176 the defendants may a defendant for conduct that have been authority proposi- have identified no for the occurred,” lawful where it State Farm Mut. tion that a court in New York not re- Campbell, Auto. Ins. Co. v. Georgia South strain a defendant in Car- (2003). L.Ed.2d S.Ct. violating olina from U.S. federal firearms However, it is also true that federal “[t]he laws, binding which are of course in both sitting equity having per as a court of jurisdictions. have the defendants dem- Nor party power sonal over has Georgia onstrated that and South Carolina enjoin committing him from acts elsewhere.” materially law is different than New York law Corp., Bano v. Union Carbide respects. relevant (internal Cir.2004) quotation marks (E.D.N.Y. WESLEY, 369, 374, Judge, concurring: F.Supp.2d Circuit 2007) J.). (Weinstein, case, however, This majority’s opinion in full. I join I impression. fact, is not one of first In this express concerns with separately write particular judge federal has decided a jurisdictional analysis conducted number of involving other cases the fire fully agree I court below. While with industry arms in which he has declined majority’s conclusion that this affirmative waived, was I am concerned that apply long-arm interpreted defense statute as might others embrace the district court’s by See, Appeals. the New York Court of view, jurisdictional analysis. my In Arms, e.g., Bryco Johnson would be a mistake because the district (E.D.N.Y.2004) (Wein F.Supp.2d jurisdictional analysis court’s has no basis stein, J.); Arms, Inc., v. A.A. N.A.A.C.P. in law. New York Nos. 99 Civ. 99 Civ. 2003 WL (E.D.N.Y. 2003) *4 Apr. at brought by City

The claims of New J.). (Weinstein, And, event, any York defendants Mickalis Pawn federal Outdoors, Shop, LLC and Adventure Inc. ly licensed out-of-state firearms distribu pled were as torts under New York law. tors, case, such as defendants in this are 400.05(1). 240.45, §§ N.Y. Penal Law See governed long-arm the same statute as subject jurisdic- The district court’s matter are all other out-of-state defendants al grounded tion was 28 U.S.C. leged to have committed tortious act 1332(a)(1). Therefore, § the court was outside of York injury New that causes jurisdic- permitted personal to “exercise State New York. tion to the same extent as the courts of 8, 2006, August following On limited general jurisdiction” the State of New discovery, defendants moved to dismiss York. Bank Brussels Lambert v. Fiddler the complaint against them for lack of Rodriguez, & Gonzalez jurisdiction. personal By an order (2d Cir.2002). dated yet, And the district court August the district court denied devised a test that has no basis in the New defendants’ motion to dismiss. A-1 governing long-arm jurisdic- York statute Jew 302(a)(3)(ii). Pawn, elry F.Supp.2d § tion.1 N.Y. & In C.P.L.R. view, my authority In the court no declining grant had defendants’ motion to apply jurisdictional dismiss, novel test that creat- the district court applied a test to expansion ed an unwarranted of the mean- assess whether properly defendants were ing personal jurisdiction under New subject personal jurisdiction previ York law. ously employed by a New York court. judge appears The district to be of the district termed this case one view that there should be no limits on the created, impression” of “first out of personal jurisdiction exercise of over a cloth, de whole a seven-factor test for deter “except fendant those of reasonable forum mining whether exists (venue) gun City over “retail and rational state interest in the establishments.” Pawn, Inc., Jewelry litigation.”2 Weinstein, New York v. A-1 & B. Jack Mass appeal only Judge acknowledged 1. This concerns two defendants Weinstein has in his writing long-arm among many academic that "New York's implicated by a "series of civil statute, states, unlike that of most has not brought by City cases of New York” be interpreted going been to the constitutional fore this district court. N.Y. v. Bob Weinstein, Jack B. Mass Tort limit[]." Juris- Inc., Sport Shop, Moates’ 253 F.R.D. diction and Choice Law in a Multinational (E.D.N.Y.2008)(Weinstein, J.). Communicating by World Extraterrestrial Sat- jurisdiction was assessing personal Law in a and Choice Tort Jurisdiction jurisdiction was warranted because Communicating by Multinational World simply ... not to vindicate an Satellites, “sought 37 Willamette Extraterrestrial an (2001). right individual or to resolve individual Specifically, the L.Rev. rather dispute” but was commercial that defendants’ court concluded district safety “sought protect of an entire illegal parallel con- “knowing cumulative community.” Id. at 339. causing wide- New York duct outside in New York made them injury spread judge below take While district in” York. 501 to suit New amenable placed issue with the limitations New at The court asserted F.Supp.2d as an academic long-arm York’s statute of the combined harm” that “the extent matter, limitations “were deliberate these for the exercise of provide could basis ly keep provision inserted to well with each individual personal jurisdiction over bounds,” Ingraham in constitutional defendant, allegedly illegal out- even if the Carroll, 592, 597, 665 90 N.Y.2d N.Y.S.2d single defendant conduct of of-state (1997), N.E.2d 1293 and a federal jurisdiction. suffice to establish would not court is not free to read them out district court at 422. The district took the Id. addition, In of the statute. the exercise “[wjhere a defendant deals in [ ] view that jurisdiction over these defendants personal inherently dangerous products, a lesser not, view, my “comport[ in with the ] does ordinarily required showing than is will process.” Met. requirements of due Life (internal support jurisdiction.” Id. at 420 Corp., 84 F.3d Ins. Co. Robertson-Ceco omitted). Cir.1996) marks quotation (citing v. Rar Savin (2d Cir.1990)). nier, default, City Prior to defendants’ complaint, sought an amended which filed jurisdic In evaluating personal whether injunctive relief defendants for the particular to a defendant the tion exists as public creation of nuisance. See N.Y. “quality court must examine the and na 400.05(1), §§ Penal Law 240.45. Defen ture” of the defendant’s contacts with the Lines, Walker, dants then made a renewed motion to dis forum. Best Inc. v. Van they objec (2d Cir.2007). miss in which reasserted their Here, 242-43 exercise tion to the the defendants’ connection to the forum Jewelry to no avail.3 N.Y. v. A-2 at not was tenuous best.4 Defendants did Pawn, Inc., 247 F.R.D. & any within business the state “transact!] (E.D.N.Y.2007). denying In defendants’ supply goods (cid:127) (cid:127) (cid:127) ... in contract[ ] dismiss, state,” motion to 302(a)(1), § renewed district N.Y. C.P.L.R. relied, again part, allegedly on the any act defendants did commit tortious 302(a)(2). “knowing parallel State, § conduct” the defen in New York id. More im point, nothing sup dants. Id. 336. The district court to the in the record that, plied perhaps, ports a different standard the conclusion that conducted ellites, (2001). properly subject exer- 37 Willamette L.Rev. district court's is, however, Judge Weinstein critical of New personal jurisdiction. cise of because, view, long-arm York’s statute his personal juris- expansion "inhibit[s] City, 4. As characterized defendant Ad- potential” diction to its full and its limitations venture Outdoors is a "storefront establish- "should be eliminated.” Id. at 149. Smyrna, Georgia" ment and defendant Shop Mickalis Pawn is "a store in Summer- 3. Defendant Adventure Outdoors also filed ville, South Carolina.” summary judgment unsuccessful motion for part based in on its that it was not contention in New York or that or solicited business S.Ct. (1987). any persistent other L.Ed.2d 92 they “engage[d] conduct, or substantial derivefd] course The district court concluded that when a used ... in the state.” goods revenue from inherently defendant deals in dangerous 302(a)(3)(i). §Id. products showing required a lesser in personal jurisdiction. order establish in nothing sup There is the record that However, neither the New York Court of the conclusion that defendants knew ports Appeals nor this Court have ever so held.5 in guns or should have known that sales of satisfy If the “could the requirements having home states were conse their 302(a)(3)(ii) of [section on so attenuated a ] 302(a)(3)(h). § quences New York. Id. consequence of as has defendants’] act[s] 302(a)(3)(h) Moreover, provides section below, accepted by been court[] in order to form the for basis unfairly would burden non-residents whose jurisdiction personal exercise of over a connection with the state is remote.” non-domiciliary, the defendant must know Foods, Inc. Fantis v. Standard Importing (or know) be deemed to of the conse Co., 317, 327, 49 N.Y.2d 425 N.Y.S.2d of its conduct and sub quences “derive[ ] (1980). 402 N.E.2d stantial revenue from interstate or interna A particularly troubling aspect of the Here, commerce.” even if tional Id. we jurisdictional analysis conducted below is impute knowledge were to to the defen the reliance on what the district judge dants, anything the record does not reveal termed the paral- defendants’ “cumulative approaching “substantial revenue” that lel conduct” as basis for establishing guns could be said to have resulted from jurisdiction. According to the way that made their to New York. The theory, district court’s although the “out- conjunctive requirement present section single of-state activities of a defendant 302(a)(3)(h) could be to be con understood may jurisdic- alone not suffice to establish stitutionally Supreme mandated. As the tion,” “knowing parallel because of con- explained, “foreseeability Court has alone duct, the extent of harm may the combined has never been a sufficient for benchmark jurisdiction provide basis for over each personal jurisdiction.” World-Wide Volks F.Supp.2d one.” 501 at 422. The New Woodson, wagen Corp. v. York of Appeals adopted Court has never (1980) S.Ct. L.Ed.2d theory pursuant to which combined or (internal omitted). quotation marks To parallel may conduct upon be relied contrary, a “defendant’s awareness person- establish a basis for the exercise of that the stream of commerce or will jurisdiction al juris- over a defendant when product sweep into the forum State diction does not otherwise exist. placing not convert act of does the mere product into the stream into an act Appeals The New York Court of has directed toward the forum purposefully instructed that determine whether a “[t]o York, California, non-domiciliary may State.” Asahi Metal Indus. v. be sued New matter, a substantive the New York As N.Y.2d N.Y.S.2d 750 N.E.2d Appeals rejected argument (2001). Court of has The hazardous materials doc- "general duty that a care arises out of trine, [a] products liability which is based on a gun ability reduce the manufactureras] risk id., theory, support loosening does not illegal gun trafficking through control of requirements establishing personal ju- marketing prod- [its] and distribution of risdiction. Corp., ucts.” Hamilton v. Beretta U.S.A. litigants all the same standards to whether first determine must] [the legal principles. ... confers long-arm statute adherence well-defined York’s] [New non-domiciliary] over jurisdiction [the analy- jurisdictional court’s The district York] with State. [New contacts light of its afforded to protection undermines the sis New relationship with If the defendant’s section defendants out-of-state the terms of [section York falls within 302(a)(3)(ii). As both this Court and the 302(a)(3)(ii) deter- ], then] court must [the Appeals previous- have New York Court the exercise mine whether intended to ly explained, provision this “is process.” LaMarca with due comports a defendant and some link between ensure 210, 214, Co., N.Y.2d 713 Mfg. 95 Pak-Mor to make it reasonable to New York State (2000). 304, N.E.2d 883 735 N.Y.S.2d York a to come to New require defendant follow the instructions Rather than committed for tortious conduct to answer Appeals, the district York Court New LaMarca, 215, 95 N.Y.2d at elsewhere.” ana- test for created a seven-factor 304, (quoting 735 N.E.2d 883 713 N.Y.S.2d jurisdiction long-arm exists lyzing whether 598, N.Y.2d at 665 N.Y.S.2d Ingraham, 90 501 gun “retail establishments.”6 over 1293). 10, long- The relevant 687 N.E.2d F.Supp.2d at specifically “designed is to provision arm determined that The district court preclude ... the exercise juris- of a traditional application “inflexible might who cause di- over nondomiciliaries to take account analysis that fails dictional rect, injury the State foreseeable within factors does commercial unique practical operations are of a but ‘whose business orderly effectively the fair and not insure ” (quoting Ingraham, Id. local character.’ the law.” Id. at 419. administration 10, 687 90 N.Y.2d at 665 N.Y.S.2d adopt what preferred The court 1293). Here, indisputable N.E.2d it is pragmatic jurisdic- “reality-based a termed a local char- defendants’ businesses are of However, the district analysis.” tional Id. acter. depart from “tradi- court was not free The district court also asserted jurisdictional analysis” order to tional threshold at specific is no dollar “[t]here subject to suit New hold defendants substantial which revenue becomes orderly The “fair and administration York. 302(a)(3)(ii).”7 501 by applying purposes achieved of [section] of the law” is best court, 7) regulatory Actions of authorities related 6. As announced the district these practices.... distribution to the retailer’s factors are as follows: F.Supp.2d 501 at 424 - 25. 1) handguns of "trace” linked to Number investigations criminal in New York sensibly 7. Other courts have held that are attributable to the defen- "[wjhether elsewhere revenue is 'substantial' under New dant; law is determined on both relative and York 2) practices possible Ronar, Wallace, Distribution and their absolute scales.” Inc. v. York; (S.D.N.Y.1986); effects on crimes in New F.Supp. see also 3) Co., guns Time-to-crime of the retailer's re- Mfg. F.Supp. Vecchio v. S & T ...; (E.D.N.Y.1984); covered in New York v. Canadian Gen. Elec. Allen 4) Co., price, type gun intended Sales and the 65 A.D.2d 410 N.Y.S.2d 708-09 1978). (3d handguns Dep't use of the retailer's Adventure Outdoors asserts 5) in New with the Crimes committed York that "uncontroverted evidence demonstrates year period preceding handguns; retailer's that over six action, 6) handguns this derived an aver [it] Total number of the retailer institution of $3,619.89 age from interstate or interna ... sold in the United States and retailer's commerce, constituting paltry the United States and tional total revenue from 0.36% markets; Shop Pawn of its overall revenue.” Mickalis New York so, it purposefully any Even if was F.Supp.2d meaningful at 417. this is established making any with New City from contacts York state. error excuse the showing that defendants derived substan The district court maintained that New tial revenue from interstate commerce. York has a strong adjudi- interest Corp. King, Bensusan Rest. case, cating “fb]y this enacting and that (2d Cir.1997). Indeed, it ‘tra “offendfs] strong gun protect control laws to its citi- play fair ditional notions of and substantial gun-related zens crimes from New York ” non-domiciliary de justice’ subject expressed special public policy has inter- jurisdiction when that defen fendant subject litigation.” est matter of this requisite “minimum dant does have F.Supp.2d at It indisputa- LaMarca, with forum state. contacts” strong ble that “New York has a interest 216, 713 95 N.Y.2d at N.Y.S.2d safety in the of its and territory residents Int'l Co. v. (quoting N.E.2d 883 Shoe handgun 429; from violence.” Id. at see Washington, S.Ct. Pataki, Bach v. generally 408 F.3d 75 (1945)). 154, 90 L.Ed. 95 The record Cir.2005). However, City’s efforts to this case is devoid of information “regulatfe] illegal of handguns flow defen anyone allow conclude that would territory,” F.Supp.2d into its 501 at ties, “meaningful ‘contacts, had or dants process rights cannot violate the due of ” Burger King relations’ with York. New defendants it alleges played some attenu- Rudzewicz, 471 Corp. v. U.S. presence illegal guns ated role of (1985) (quoting S.Ct. 85 L.Ed.2d 528 City. New York As Supreme Court has 154). Shoe, at Int'l explained: juris personal

The seven-factor test for [The limits on the of personal exercise heavily alleged by on over diction relies conduct are defendant] more guarantee immunity third than a of parties specifically, purchas straw from in- — litigation. or handguns establishing They ers of a basis convenient distant —in However, jurisdiction. consequence are a of for the assertion of territorial limita- on the power respective tions activity the “unilateral claim those who if States.... Even the defendant with a de would relationship some nonresident minimal or suffer no inconvenience from satisfy requirement fendant cannot forced to being litigate before the tribu- with State.” contact the forum Id. at State; nals of another if (internal even the forum quotation marks S.Ct. strong has a in applying State interest omitted); Volks see also World-Wide controversy; its law the even if the wagen, 444 at U.S. S.Ct. forum State is the most convenient loca- Rather, ... it is there be “essential litigation, tion for the Due Process by act which the defendant purpose some Clause, acting as an instrument of inter- fully privilege avails itself of the of con federalism, may state sometimes act to State, ducting activities within forum divest the State of power its render a invoking protections thus the benefits and judgment. valid King, its laws.” Burger (internal quotation 105 S.Ct. 2174 marks Volkswagen, U.S. at World-Wide omitted). Here, City Here, for although did not come S.Ct. defendants federally firearms, any ward with evidence that defendants are licensed to sell any receiving alleged- "a certain denies revenue from interstate sum amount of revenue” it alleged, sales and never ly asserts that from interstate derived commerce. trial showed—and the court never found— no on- [stores have] are “small-town deceased, TAYLOR, and Rebecca [their] York and contacts with New

going Holly WAZYLUK, per through her not the any] are activities [if interstate Hunter, representative, Karl and sonal generally make [them] sort which Salovitz, Plaintiffs-Appellants, Heiwa away from litigation handle equipped Markham business] location[s].” [their Cir.1976) Anderson, OF the The HOUSING AUTHORITY omitted). (internal marks quotation Jimmy HAVEN, NEW Mil OF CITY sum, analysis with the district court’s In ler, individually, Karen Dubois-Wal defense to defendants’ affirmative respect individually ton, Executive Di and as jurisdiction was lack of based on Housing Authority, rector unjustified and deviation a substantial Leffingwell, Alvarado, David Ilona easily understood well-known and from Persall, Solomon, Robert Louise jurisdic- of New York law. principles Turner, and board Jason as officials court be- analysis performed by the tional Housing Authority, members to be one federal appears based on low Defendants-Appellees.* York view of how the law of New

judge’s Docket No. 10-1144-cv. constructed, rather than ought to be clearly delineated statute how it is Appeals, States United Court of the state and federal in the decisions Second Circuit. courts. Argued: April trial, their By prior virtue of on based defendants waived their defense 4,May Decided: jurisdiction. Tran- lack Boliviana,

saero, v. La Aerea Inc. Fuerza (2d Cir.1998). 724, 729 There-

fore, join majority’s I well-written But an here is not

opinion. affirmance analysis the jurisdictional

endorsement or dis- agreement

conducted below. One’s that animate policies with

agreement cannot

liability rules for retailers firearms The dis- jurisdictional analysis.

bear York’s apply

trict court was bound to New statute, clearly interpreted

long-arm Appeals.

the New York Court of did not so in this case.

court below do * caption to the above. the Court directed to revise official conform The Clerk of

Case Details

Case Name: City of New York v. Mickalis Pawn Shop, LLC

Court Name: Court of Appeals for the Second Circuit

Date Published: May 4, 2011

Citation: 645 F.3d 114

Docket Number: Docket 08-4804-cv, 09-1345-cv

Court Abbreviation: 2d Cir.