07-0954.cv
“R” Best Produce v. DiSapio, Sr., et al.


                                    UNITED STATES COURT OF APPEALS

                                           FOR THE SECOND CIRCUIT

                                              August Term 2007

Heard: July 17, 2008                                             Decided: August 26, 2008

                                           Docket No. 07-0954-cv

- - - - - - - - - - - - - - - - - -
“R” BEST PRODUCE, INC.,
          Plaintiff-Appellee,

                            v.

CARMINE DiSAPIO, SR. and CARMINE
DiSAPIO, JR.,
          Defendants-Appellants.
- - - - - - - - - - - - - - - - - -

Before: NEWMAN, CALABRESI, and B.D. PARKER, Circuit Judges.

         Appeal from the February 15, 2007, order of the United States

District Court for the Southern District of New York (Loretta A.

Preska, District Judge), denying a motion to reconsider the denial of

a motion to vacate a default judgment on the ground of lack of

personal jurisdiction.

         Vacated and Remanded.

                                                Thomas J. Romans, Hackensack, N.J., for
                                                  Defendants-Appellants.

                                                Ralph Wood, White Plains, N.Y., for
                                                  Plaintiff-Appellee.
JON O. NEWMAN, Circuit Judge.

     A $28,000 sale of fruit and vegetables has led to an appeal that

raises a host of issues concerning appellate jurisdiction, default

judgments, personal jurisdiction, and the Perishable Agricultural

Commodities Act of 1930, 7 U.S.C. § 499e(c)(5) (“PACA”). These issues

arise on an appeal by Defendant-Appellant Carmine DiSapio, Jr., from

the February 15, 2007, Order of the District Court for the Southern

District of New York (Loretta A. Preska, District Judge), denying his

motion for reconsideration of an Order denying his motion to vacate a

default judgment for lack of personal jurisdiction.

     We conclude that the Appellant’s claim that the default judgment

should have been vacated for lack of personal jurisdiction raises

unresolved factual issues.         We therefore vacate the Order denying

reconsideration and remand for further proceedings.

                                   Background

     The Plaintiff-Appellee “R” Best Produce, Inc. sold fruits and

vegetables   to   Pat’s   Market    Place   of   Bristol,   Inc.,   and   Pat’s

Supermarket, Inc. (collectively “the corporations”), which owned and

operated supermarkets in Connecticut. The Defendant-Appellant Carmine

DiSapio, Jr., (“the son”) is the son of Carmine DiSapio, Sr., (“the

father”) and his wife Denise DiSapio, who were the sole shareholders

of the corporations.      The relationship of the son to the corporations

is in dispute.    He contends that at the relevant times he was only a

                                      -2-
salaried employee.        The Plaintiff-Appellee contends that he was an

officer    and    director    of   the   corporations        and    a   “dealer”     and

“commission merchant” within the meaning of the PACA, see 7 U.S.C.

§ 499a(b)(5), (6).

     In July 2003, the Plaintiff filed a complaint in the District

Court against the corporations, the father, and the son seeking

recovery     of   the    unpaid    balance     for    produce      delivered   to    the

corporations,     plus    interest    and      attorney’s     fees.      An    amended

complaint,     served    by   mail,   alleged        the   unpaid    balance    to   be

$28,445.99.       Like the original complaint, the amended complaint

included counts alleging breach of the statutory trust imposed by the

PACA on the proceeds of perishable produce, see id. § 499e(c)(2),

breach of contract, and other common law causes of action.                     Subject

matter jurisdiction was based both on the PACA and diversity of

citizenship.

     Although personal jurisdiction was not explicitly alleged in the

amended complaint, the Plaintiff subsequently relied on a provision of

its standard sales terms, which were set forth on the back of each

sales receipt alleged to have remained unpaid.               That provision stated

that all actions for breach of the sales agreement shall be brought

only in the District Court for the Southern District of New York or

any other New York State court in New York County or, at the seller’s

option, in the county of the seller’s principal place of business in

                                         -3-
New York.    Especially pertinent to this appeal, the provision also

stated: “Each party consents to the jurisdiction and venue of said

Courts.”    Each sales receipt for unpaid produce bore the signature of

an employee of the corporations, often that of the son, above a

printed legend stating “RECEIVED IN GOOD ORDER.”

     All Defendants were personally served with a summons and the

complaint. None of the Defendants entered an appearance. Just before

the complaint was filed, the corporations filed for bankruptcy under

Chapter 11, proceedings later converted to Chapter 7.            The Plaintiff

sought and was granted a voluntary dismissal of its claims against the

corporations.

     In January 2005, the Plaintiff filed an affidavit of its counsel

alleging that the individual Defendants were in default and that the

Plaintiff was entitled to the unpaid balance of $28,445.99 plus

prejudgment interest of $7,253.73 (through December 21, 2004) and

attorney’s   fees   of   $7,111.50,   for   a   total   of   $42,811.22.   The

affidavit, captioned “AFFIDAVIT FOR JUDGMENT BY DEFAULT,” requested

“the entry of Default and the issuance by the Clerk of this Court of

a Clerk’s Certificate.”       Although there is no indication that a

default was entered, see Fed. R. Civ. P. 55(a), on February 1, 2005,

the District Court entered a default judgment, see Fed. R. Civ. P.

55(b)(2), against the father and the son in the amount of $42,811.22,

plus $509.12, representing interest from December 21, 2004, to the

date of the judgment.

                                      -4-
     On July 31, 2006, the father and the son filed a motion to vacate

the default judgment under Rules 60(b)(4) and 60(b)(6) of the Federal

Rules of Civil Procedure.       Since the father later filed an individual

bankruptcy petition under Chapter 7, received a discharge as to the

Plaintiff’s judgment against him, and withdrew his appeal in this

Court, only the son’s challenge to the default judgment remains

relevant to this appeal, and the remainder of this opinion will refer

to procedural steps taken, and contentions made, only by the son

(except when reciting the District Court’s rulings, which referred to

both Defendants).

     The son’s motion to vacate the default judgment was resolved on

the basis of affidavits. His initial affidavit alleged the following.

At all relevant times he was a salaried employee of the corporations,

earning   $900    a   week.     He   was    never    an    officer,     director,    or

stockholder      of   the   corporations,    did     not   sign   checks    for     the

corporations, and never undertook to be personally responsible to pay

the invoices of the Plaintiff or any other supplier.

     When he was served with the summons and complaint, he turned them

over to his father, who assured him that the matter would be handled

by the father’s attorneys.           The son first learned of the judgment

against him in May 2005 from a notice of judgment lien filed against

his residence and an investment property, both located in Connecticut.

     An   opposing      affidavit     of    Lee     Pakulsky,     the    Plaintiff’s

controller, alleged that the son continued to order produce for the

                                       -5-
corporations, knowing that they were not paying for past due invoices,

and that he assured the Plaintiff that it would be paid.

     The son’s reply affidavit denied ever speaking to Pakulsky about

payment   or   financial   issues,   denied    giving   assurance   that   the

Plaintiff would be paid, and stated that in signing the receipts he

acknowledged only that the items were received in good order.

     On August 31, 2006, the District Court orally denied the motion

to vacate the default judgment.       Concerning the claim under Fed. R.

Civ. P. 60(b)(4) that the default judgment was void for lack of

personal jurisdiction, Judge Preska stated:

          [B]oth defendants have admitted to signing certain
     receipts which contained a consent to jurisdiction in this
     court. As we all know, PACA makes individuals liable for
     payment for produce under certain terms and conditions,
     which are present here. As we also know, the entry of a
     default judgment means that the allegations in the complaint
     are deemed admitted.

          Taking all those facts together, the defendants are
     subject to jurisdiction in this court and are liable for the
     breach of trust in not ensuring the payment for the produce
     under the statute.

     With respect to the claim under Fed. R. Civ. P. 60(b)(6), the

District Court stated that the Defendants had not acted to vacate the

default judgment within a reasonable time, having waited some fourteen

months after entry of the judgment.        Finally, the Court noted that the

motion was denied for the additional reason that the Defendants had

not shown a meritorious defense to the charges of nonpayment.



                                     -6-
     The record does not reflect any written order denying the motion

to vacate or endorsement on the motion itself.         The transcript

containing the District Court’s oral ruling was entered on the docket

on September 11, 2006.     On the same day, the son filed a motion for

reconsideration.   The District Court denied that motion in a brief

written order dated February 8, 2007, and entered February 15, 2007.

     On March 7, 2007, the son filed a notice of appeal.    The notice

identified the order appealed from as “an order dated February 8, 2007

denying defendants’ motion for reconsideration of the District Court’s

denial of defendants’ motion to vacate the default judgment entered

against defendants in this action.”

                               Discussion

I. Appellate Jurisdiction

     The initial issue is whether we have appellate jurisdiction to

review the District Court’s denial of the motion to vacate the default

judgment in view of the fact that the notice of appeal referred only

to the District Court’s denial of the motion to reconsider the denial

of the motion to vacate.    “The notice of appeal must . . . designate

the judgment, order, or part thereof being appealed.” Fed. R. App. P.

3(c)(1)(B).   The Supreme Court has treated an appeal from a denial of

a motion to vacate, which was deemed to have been filed under Fed. R.

Civ. P. 59(e), as “an effective, although inept, attempt to appeal

from the judgment sought to be vacated.” Foman v. Davis, 371 U.S. 178,


                                   -7-
181 (1962).1     The Court reasoned that the appellant’s intention to

appeal both the denial of the motion to vacate and the underlying

judgment “was manifest.” Id.     Foman was a strong case for divining

such intention because the appellant had also filed a notice of appeal

from the underlying judgment, a notice deemed premature and dismissed

by the court of appeals. See id. at 180.      However, the Court did not

display similar generosity in Torres v. Oakland Scavenger Co., 487

U.S. 312 (1988), when it later confronted the requirement that a

notice of appeal must “specify the party or parties taking the

appeal.” Fed. R. App. P. 3(c)(1)(A).     The Court ruled that a notice of

appeal that failed to name a party as one of the appellants was

ineffective to permit that party’s appeal, despite the listing of the

first named party in the case caption followed by the phrase “et al.”

See 487 U.S. at 317-18.

     Cases in our Circuit have not established a clear rule.        Some

support for the Appellant’s position is found in Ametex Fabrics, Inc.

v. Just In Materials, Inc., 140 F.3d 101 (2d Cir. 1998), a case with

a complicated procedural history.    A third-party defendant, American

     1
         Foman was decided before the adoption of the Federal Rules of

Appellate Procedure.    In 1962, former Rule 73(b) of the Federal Rules

of Civil Procedure contained language identical to current Rule

3(c)(1)(B) of the Federal Rules of Appellate Procedure. See Fed. R.

App. P. 3, Advisory Committee Notes.

                                   -8-
Fast Print, Ltd. (“AFP”) moved for and was granted summary judgment.

See id. at 106.          Thereafter, the District Court stamped the words

“Memo Endorsed” on AFP’s notice of motion.                    See id.         Our Court

“presume[d]” that this stamp was “the alleged October 10, 1995 entry

of summary judgment” referred to in AFP’s briefs.               See id.       Since, as

our Court pointed out, no separate document containing a judgment was

filed until later, see id., the October 10 entry most likely reflected

an order granting summary judgment, rather than a judgment conforming

to Rule 58 of the Federal Rules of Civil Procedure.                  In any event, on

October      17,   the     third    party    plaintiffs      filed    a   motion    for

reconsideration of the grant of summary judgment.                On March 8, 1996,

the   District     Court    denied    that    motion   and    entered     a   judgment,

dismissing the third-party complaint.              On April 1, the third-party

plaintiffs appealed from the judgment dated March 8. See id.

      Our Court first recognized that, even if the October 10 order was

appealable, the filing, within ten days, of a motion to reconsider

tolled the 30-day period for taking an appeal. See id.; Fed. R. App.

P. 4(a)(4)(A)(iv), (vi).           We then considered AFP’s claim that even if

the third-party plaintiffs could have appealed from the October 10

award of summary judgment, their notice of appeal purported to appeal

from what our Court called “the March 8, 1996 denial of the motion for

reconsideration.”2 Ametex, 140 F.3d at 106.            We then stated, pertinent

      2
          Since the March 8, 1996, judgment may well have been the only

                                            -9-
to the pending appeal, that even if the District Court’s stamp

resulted in a judgment entered October 10, 1995, the notice of appeal

from the March 8, 1996, denial of reconsideration sufficed to bring up

for review the order granting summary judgment because the “‘intent to

appeal [that order] can be fairly inferred.’” Id. (quoting Matarese v.

LeFevre, 801 F.2d 98, 105 (2d Cir. 1986)).              We also noted that the

March 8, 1996, judgment explicitly referred to the award of summary

judgment. See id. at 106-07.

     Other decisions of this Court are also helpful to the Appellant.

In Marvin v. Goord, 255 F.3d 40 (2d Cir. 2001), a pro se litigant

filed a notice of appeal from a judgment dismissing his claims and a

notice    of   appeal    from   an    order   denying   reconsideration   of    the

judgment.        Although       the   appeal    from    the   judgment    was    in

“administrative default,” id. at 42 n.1, we ruled that the appeal from

the denial of reconsideration brought up for review the underlying

judgment, see id.       The ruling was based both on the appellant’s intent

and his pro se status. See id.

     Marrero Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004), is the


appealable judgment entered in the case, the notice of appeal from

that judgment could properly have been viewed as bringing up for

review all prior orders of the District Court, including the October

5, 1995, grant of summary judgment, regardless of the appellants’

intent.

                                         -10-
reverse of Ametex and Marvin.       In Pichardo, we permitted a notice of

appeal from a judgment to bring up for review a District Court’s

denial of a motion for reconsideration of the judgment. See id. at 54-

55.   We noted that the appellant’s intent to raise on appeal the

ground asserted in his motion for reconsideration was “clear.” Id. at

55.

      However, some decisions of this Court are unhelpful to the

Appellant.      In Shrader v. CSX Transportation, Inc., 70 F.3d 255 (2d

Cir. 1995), a plaintiff brought claims under both the Railway Labor

Act (“RLA”) and the Federal Employers’ Liability Act (“FELA”).              On

August 1, 1994, the district court dismissed the RLA claim but

declined   to    dismiss   the   FELA   claim.   The   defendant   moved   for

reconsideration of the refusal to dismiss the FELA claim.                  The

district court granted the motion for reconsideration and, on December

8, 1994, dismissed the FELA claim. See id. at 256.            The plaintiff

filed a notice of appeal, which our Court understood to be an appeal

from the district court’s decision, rendered December 8, to reconsider

its August 1 ruling and also from the dismissal of the FELA claim. See

id.   In his appellate brief, however, he sought to challenge the

dismissal of his RLA claim. See id.

      Our Court refused to consider the plaintiff’s challenge to the

dismissal of his RLA claim, noting that the notice of appeal indicated

“his intent to appeal only from the district court’s December 8, 1994,


                                        -11-
order.” Id.3

      In New Phone Co., Inc. v. City of New York, 498 F.3d 127 (2d Cir.

2007),      the    district     court   on    August   5,   2005,   entered   an   order

dismissing a complaint and issuing an injunction prohibiting the

plaintiff’s right to file new complaints on the subject of the lawsuit

without leave of court.               The district court’s docket reflects the

entry of a clerk’s judgment on August 16.                   That judgment recites the

      3
          Since the December 8, 1994, order appears to have been the first

order dismissing all of the plaintiff’s claims, it appears to have

been the first appealable order, and it is not clear why an appeal

from that apparently final order did not bring up for review all prior

rulings of the district court.               Indeed, the December 8 order directed

the   Clerk       of   the    Court   “to    dismiss   plaintiff’s   complaint,”    and

resulted in a judgment entered the following day. See Shrader v. CSX

Transportation, No. 95-7037, Joint Appx. at 585, 586. Apparently, our

Court viewed the specific reference in the notice of appeal to the

district court’s reconsideration of the FELA claim and the subsequent

dismissal of that claim as a narrowing of the broad statement in the

notice that the plaintiff was appealing from the entirety of the

December 8 order.            That understanding gained support from plaintiff’s

Form C pre-argument statement, identifying the issues to be raised on

appeal, which made no mention of the dismissal of the RLA claim. See

id., Br. for Appellee at 22.

                                              -12-
dismissal of the complaint but, even though it is the final judgment

in the action, makes no mention of the filing injunction contained in

the August 5 Order.              On August 26, the district court denied the

plaintiffs’ request, made pursuant to the injunction, to file new

complaints.

      The plaintiffs filed one notice of appeal from both “the Order

dismissing      the    action”     entered     on   August   5   and   “the     judgment

dismissing the action” entered on August 16.4                This Court vacated the

dismissal of the complaint, denied the appeal from the August 26 order

without prejudice, but declined to consider the plaintiffs’ attempt to

obtain      review    of   the    injunction    restricting      the   filing    of   new

complaints. See id. at 130-31.               We pointed out that “[n]one of the

notices [sic] of appeal mention the entry of the filing injunction.”

Id. at 130.

      Even though the notice of appeal sought to appeal from the August

5 Order, which had contained the filing injunction, we declined to

consider the injunction because the notice of appeal did not mention

it.   This strict application of Rule 3(c) can perhaps be explained on

the theory that the notice of appeal not only omitted mention of the

injunction but also explicitly identified the August 5 Order as one

that “dismiss[ed] the action.”               Arguably, the notice of appeal was

thereby limited to exclude appeal of the injunction.



      4
          See New Phone Co., Inc. v. City of New York, No. 05-4935, Notice

of Appeal (Sept. 12, 2005).

                                         -13-
     Against this background of decisions, which are not entirely

reconcilable, we conclude, for several reasons, that a straightforward

approach is needed whereby a notice of appeal from denial of a motion

to reconsider, filed within ten days of the order or judgment sought

to be considered, suffices to bring up for review the underlying order

or judgment, at least where the motion renews arguments previously

made.5     First, a ten-day motion extends the time to appeal from the

order or judgment, see Fed. R. App. P. 4(a)(4)(A)(iv)-(vi), and an

appellant appealing the denial of such a motion is fairly understood

to be seeking review of the order or judgment that was available for

appeal within the time limit starting from the denial of the motion.

Second, the grounds of a ten-day motion to reconsider often overlap

substantially     with   the   grounds   asserted   in   opposition   to   the

underlying judgment or order.      Third, this approach accords with our

Court’s stated practice of “liberally constru[ing] the designation

requirement” of Fed. R. App. P. 3(c). See Ametex, 140 F.3d at 106.



     5
         A Rule 60(b) motion filed within ten days of the order or

judgment at issue, is to be contrasted with a motion filed thereafter,

which, when denied and appealed, brings up for review only the order

denying the motion. See, e.g., Daily Mirror, Inc. v. New York News,

Inc., 533 F.2d 53, 56 (2d Cir. 1976).           And we need not consider

whether a notice of appeal of the denial of a motion to reconsider,

filed within ten days of an order or judgment, but making entirely new

arguments, would bring up for review the underlying order or judgment.

                                     -14-
     Two circuits have used this approach.          See LeBoon v. Lancaster

Jewish Community Center Association, 503 F.3d 217, 225 n.6 (3d Cir.

2007)   (appeal   from    denial    of     motion    to   reconsider   filed

“[a]pproximately a week” after dispositive order, id. at 222, brings

up for review the dispositive order); Town of Norwood, Mass. v. New

England Power Co., 202 F.3d 408, 415 (1st Cir. 2000) (permitting

appeal from denial of a timely Rule 59(e) motion to bring up for

review the underlying judgment where motion repeated the arguments

presented to the district court in opposition to the judgment); cf.

Charles A. Wright et al., Federal Practice and Procedure § 2818, at

192-93 & n.11 (2d ed. 1995) (collecting cases holding purported appeal

from denial of timely (ten-day) motion for new trial suffices to bring

up for review underlying judgment).

     What remains to be considered is whether the son’s motion to

reconsider qualifies as a ten-day motion, i.e., a motion that extends

the time for filing a notice of appeal until disposition of the

motion, see Fed. R. App. P. 4(a)(4)(A)(iv)-(vi).          He challenged the

District Court’s Order denying his motion to vacate the default

judgment by filing a Notice of Motion for Reconsideration pursuant to

Local Rule 6.3 and Rule 60(b).     Any motion for relief under Rule 60(b)

qualifies as a ten-day motion, if filed within ten days. See Fed. R.

App. P. 4(a)(4)(A)(vi).     The son filed his Rule 60(b) motion for

reconsideration on September 11, 2006. Judge Preska had orally denied

the motion to vacate at the August 31, 2006, hearing.        However, there

is no docket entry reflecting entry of that ruling.        A docket entry on

                                    -15-
September 11, 2006, records the filing of the transcript of the August

31 hearing.     Since the entry of the filing of the transcript may be

regarded as an entry of the denial of the motion to vacate, the motion

to reconsider, filed on September 11, was a ten-day motion.               Even if

the ten-day period started on August 31, when the oral ruling was

announced, the Defendant would have had ten business days, excluding

weekends and holidays, to file a ten-day motion. See Fed. R. Civ. P.

6(a)(2).    With weekends and Labor Day excluded, the ten-day period

would not have ended until September 15, 2006.

     The son’s motion to reconsider was a ten-day motion, and the

notice of appeal from its denial sufficed to bring up for review the

underlying order denying the motion to vacate the default judgment.

II. Use of Rule 60(b)(4) to Challenge Lack of Personal Jurisdiction

     We next consider whether Rule 60(b)(4) may be used to challenge

lack of personal jurisdiction.          The son moved to vacate the default

judgment under Rule 60(b)(4) of the Federal Rules of Civil Procedure,

which provides in relevant part that “the court may relieve a party

. . . from a final judgment [if] . . . the judgment is void[.]” Fed.

R. Civ. P. 60(b)(4).      The son admitted receiving service of process,

and thereby notice of the action, but argued nevertheless that the

default judgment was void because the District Court for the Southern

District of New York lacked jurisdiction over his person.

     It    is   well   settled   that   the    defense   of   lack   of   personal

jurisdiction can be waived, see Insurance Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-05 (1982), and, as

                                        -16-
to a defendant appearing in an action, the defense is deemed waived if

not raised by motion before trial, see Fed. R. Civ. P. 12(h)(1).

However, “[a] judgment . . . is void . . . if the court that rendered

it lacked jurisdiction . . . of the parties.” In re Texlon Corp., 596

F.2d 1092, 1099 (2d Cir. 1972) (citation omitted); see 11 Charles Alan

Wright et al., Federal Practice and Procedure § 2862, at 326-27 & n.10

(2d ed. 1995 & Supp. 2008) (collecting cases).

     Pertinent to this appeal, it is also well settled that voidness

of a judgment for lack of personal jurisdiction can be asserted on a

collateral challenge after entry of a default judgment.           “A defendant

is always free to ignore the judicial proceedings, risk a default

judgment, and then challenge that judgment on jurisdictional grounds.”

Insurance Corp. of Ireland, 456 U.S. at 706; Baldwin v. Iowa State

Traveling Men’s Ass’n, 283 U.S. 522, 525 (1931).                And this rule

applies even as to a defendant, moving under Rule 60(b)(4), who

received notice of the original lawsuit through service of process.

See Sloss Industries Corp. v. Eurisol, 488 F.3d 922, 924-25 (11th Cir.

2007); Bally Export Co. v. Balicar, Ltd., 804 F.2d 398, 400-01 (7th

Cir. 1986); Covington Industries, Inc. v. Resintex A.G., 629 F.2d 730

(2d Cir. 1980).    See also Burda Media, Inc. v. Viertel, 417 F.3d 292,

298-99 (2d Cir. 2005) (merits of a defendant’s claim of insufficient

service of process considered on appeal from denial of Rule 60(b)(4)

motion   even   though   defendant   had    received   actual   notice   of   the

action).



                                     -17-
     It might seem anomalous that an appearing party is deemed to

waive lack of personal jurisdiction by not properly asserting it in a

timely motion or pleading, but a non-appearing party with notice may

suffer a default judgment and later seek relief under Rule 60(b)(4).

Apart from juridical fixation on the concept of voidness, the unstated

rationale for the distinction is very likely that a non-appearing

defendant, even with notice, should be spared the burden of defending

in a distant forum and a plaintiff should be careful to join only

those defendants as to whom personal jurisdiction can successfully be

established in the original action.     Of course, the non-appearing

defendant might some day wish to bring a subsequent challenge to the

default judgment in the distant forum where it was entered, but will

usually be permitted to present the challenge defensively, see Hazen

Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 153 (5th Cir.

1974), or offensively, see Covington Industries, 629 F.2d at 733, in

a local forum if the judgment is sought to be enforced against him or

his property.   Such enforcement, however, is not inevitable, and may

never occur if the judgment can be satisfied against other jointly

liable defendants.

     Rule 60(b)(4) was properly invoked to challenge lack of personal

jurisdiction.

III. Timeliness

     Although Rule 60(b) provides that most motions for relief,

including a motion under Rule 60(b)(4), must be made “within a

                                 -18-
reasonable time,”6 Fed. R. Civ. P. 60(c)(1), this Court has been

     exceedingly lenient in defining the term “reasonable time,”
     with respect to voidness challenges. In fact, it has been
     oft-stated that, for all intents and purposes, a motion to
     vacate a default judgment as void “may be made at any time.”

Beller & Keller v. Tyler, 120 F.3d 21, 24 (2d Cir. 1997) (quoting 12

James Wm. Moore, et al., Moore’s Federal Practice § 60.44[5][c]); see

Central Vermont Public Service Corp. v. Herbert, 341 F.3d 186, 189 (2d

Cir. 2003) (motion to challenge lack of subject matter jurisdiction,

filed four years after entry of judgment, was timely); accord Sea-Land

Service, Inc. v. Ceramica Europa II, Inc., 160 F.3d 849, 852 (1st Cir.

1998) (recognizing the “any time” rule); see 11 Charles Alan Wright et

al., Federal Practice and Procedure § 2866, at 382 (2d ed. 1995 &

Supp. 2008) (no time limit); cf. Crosby v. The Bradstreet Co., 312

F.2d 483, 485 (2d Cir. 1963) (30-year-old judgment vacated as void on

First Amendment grounds).7


     6
         Rule 60(b) motions for relief on the basis of mistake, newly

discovered evidence, or fraud must be brought within one year of the

order or judgment. See Fed. R. Civ. P. 60(c)(1).
     7
         In Days Inn Worldwide, Inc. v. Patel, 445 F.3d 899 (6th Cir.

2006), the Sixth Circuit ruled that a Rule 60(b)(4) motion to vacate

a default judgment was properly denied because of an eleven-month

delay in making the motion, but the case is distinguishable.        The

defendant was validly served two days before the entry of the default

judgment, id. at 902, and conceded that he was then amenable to the

                                  -19-
      The Defendant’s Rule 60(b)(4) motion was not untimely.

IV.   Existence of Personal Jurisdiction

      We arrive, then, at the issue of whether the District Court

correctly determined that it had personal jurisdiction over the son.

As noted, the District Court upheld personal jurisdiction over the son

primarily on the ground that he had consented to personal jurisdiction

by signing several receipts that contained a consent to jurisdiction

in the Southern District.       We disagree that signing these receipts

established the son’s consent to personal jurisdiction.

      Each receipt included a list of produce delivered and an attached

one-page form titled “Standard Sales Terms,” which contained the

consent-to-jurisdiction clause.      The signature line appeared on the

list portion of the receipt above the words “RECEIVED IN GOOD ORDER,”

suggesting that the person signing might have represented nothing more

than receipt of the listed produce in good order, especially since the



district   court’s   personal   jurisdiction,   see   id.   at   904-05.   The

judgment was primarily challenged on the ground that the acquisition

of personal jurisdiction just prior to entry of the default judgment

deprived the defendant of the normal time period to respond to the

complaint, a defect distinct from lack of personal jurisdiction, see

id. at 903. Nevertheless, the Sixth Circuit stated that the eleven-

month delay warranted denial of a Rule 60(b)(4) motion. See id. at

905-06.

                                   -20-
Standard Sales Terms form had no signature line.              But even if the

Defendant’s signature on the receipt committed him to the Standard

Sales   Terms,     the   only   provision     of   those   terms    relating     to

jurisdiction stated: “Each party consents to the jurisdiction and

venue of [the specified] courts” (emphasis added), and the parties to

the Standard Sales Terms were the “BUYER,” i.e., Pat’s Supermarket,

Inc. or Pat’s Market Place of Bristol, Inc., and the “SELLER,” i.e.,

the Plaintiff.      Although the signature of the son, as agent for the

corporate buyer, might have sufficed as his corporate employer’s

consent to the jurisdiction of the District Court, on the record thus

far developed, there is no basis for concluding that the son was the

buyer or that his signature on the receipt established his consent to

the Court’s jurisdiction.

     However, the District Court did not rely solely on the son’s

having signed the receipt. After referring to the signed receipt, the

Court stated:

     PACA makes individuals liable for payment for produce under
     certain terms and conditions, which are present here. As we
     also know, the entry of a default judgment means that the
     allegations of the complaint are deemed admitted.

          Taking all those facts together, the defendants are
     subject to jurisdiction in this court . . . .”

     The District Court was referring to the liability that the PACA

creates for purchasers of produce who fall within the statutory

definitions   of    “dealer”    or   “commission    merchant.”     See   7   U.S.C.

§§ 499a(b)(5), (6), 499e.       The Plaintiff’s amended complaint alleged

                                       -21-
that the son was “a dealer and commission merchant subject to the

PACA.”        The amended complaint also alleged that the son “was in

position       [sic]    of    control      over   the   PACA   trust     assets   of   [the

Plaintiff] during the period of time in question.”                      And we have ruled

that “[a]n individual who is in a position to control the assets of

the PACA trust and fails to preserve them, may be held personally

liable to the trust beneficiaries for breach of fiduciary duty.”

Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 705 (2d Cir.

2007).

       However, although the allegations of a complaint are deemed

admitted for adjudication of the merits when a default judgment is

entered by a court with jurisdiction, the entry of a default judgment

cannot       serve     to    admit   the    facts    necessary     to    establish     such

jurisdiction.           Personal jurisdiction must be established in the

absence of a defendant’s consent or waiver.                        In this case, the

District Court made no findings (other than the inappropriate reliance

on the default judgment) to establish that the son was an individual

subject to PACA liability.

       We will assume, for purposes of this appeal, that if the facts,

properly found, show that the son is personally liable under the PACA,8


       8
           We note, however, that cases in which an individual defendant has

been       subjected    to   PACA    liability      along   with   a    corporation    have

involved a sole shareholder or an officer/director. See Coosemans

                                             -22-
then the consent of the corporate buyer to personal jurisdiction may

be imputed to him.9          But the establishment of those facts, via the

default judgment, for purposes of his liability, does not establish

those same facts for purposes of personal jurisdiction.               This is not

the first case in which a court has recognized that facts established

via a default judgment for purposes of the merits cannot suffice to

establish the same facts necessary for personal jurisdiction. See

Jackson v. FIE Corp., 302 F.3d 515, 531 (5th Cir. 2002).                  The case

must be remanded for a hearing (in view of the conflicting affidavits)

and findings as to whether the son was a dealer or commission merchant

under the PACA or a person otherwise in control of PACA trust assets.

       If the District Court determines that the facts establish, for

purposes of personal jurisdiction, sufficient involvement by the son

in the affairs of the corporate defendants to render him liable for



Specialties, 485 F.3d at 706 (sole shareholder and sole director);

Golman-Hayden Co. v. Fresh Source Produce, Inc., 217 F.3d 348, 350-52

(5th       Cir.   2000)   (sole   shareholder);   Morris   Okun,   Inc.   v.   Harry

Zimmerman, Inc., 814 F. Supp. 346, 347-49 (S.D.N.Y. 1993) (sole

officer and sole shareholder).
       9
           We make this assumption because the issue is unsettled, has not

been briefed, and might well never arise if, as seems likely, the

factual basis for the District Court’s personal jurisdiction over the

son cannot be established on remand.

                                         -23-
PACA obligations, then the Court must resolve the issue, which we have

pretermitted, whether the consent of the corporations to personal

jurisdiction can be imputed to the son.     The Court would then also

have to consider the son’s challenges to the adequacy of the service

of process, on which personal jurisdiction would also depend.

     A final issue concerns the burden of proof at the hearing on

remand.   Normally, a plaintiff has the burden of proving personal

jurisdiction in a case where a defendant appears and contests such

jurisdiction. See, e.g., Ball v. Metallurgie Hoboken-Overpelt, S.A.,

902 F.2d 194, 197 (2d Cir. 1990).   But in a collateral challenge to a

default judgment under Rule 60(b)(4), the burden of establishing lack

of personal jurisdiction is properly placed on a defendant who had

notice of the original lawsuit.     See Bally Export, 804 F.2d at 401;

Hazen Research, 497 F.2d at 154.     Although the defaulting defendant

has the opportunity to contest personal jurisdiction long after the

default judgment, a defaulting defendant with notice of the action

should bear the risk of non-persuasion on this issue since it will

normally have greater access to relevant evidence often difficult to

assemble after the passage of time.      See generally Ariel Waldman,

Comment, Allocating the Burden of Proof in Rule 60(b)(4) Motions to

Vacate a Default Judgment for Lack of Jurisdiction, 68 U. Chi. L. Rev.

521, 529-36 (2001) (collecting cases and recommending that burden

remain with plaintiff).   In the analogous context of a Rule 60(b)(4)

motion challenging sufficiency of service of process, we have held

                                  -24-
that the defendant bears the burden of proving that service of process

was insufficient.   See Burda Media, Inc., 417 F.3d at 299.

                              Conclusion

     The order denying the motion of Carmine DiSapio, Jr., to vacate

the default judgment is vacated, and the case is remanded for further

proceedings consistent with this opinion.




                                 -25-
