     Case: 12-30539   Document: 00512294800       Page: 1   Date Filed: 07/02/2013




             UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                   July 2, 2013
                                   No. 12-30539
                                                                  Lyle W. Cayce
                                                                       Clerk
FEDERAL DEPOSIT INSURANCE CORPORATION, Organized and Existing
Under the Laws of the USA,

             Plaintiff–Appellee,

v.

SLE, INCORPORATED; FUTURE REVENUES, INCORPORATED; ROGER J.
LEBLANC,

             Defendants–Appellants,

v.

CADLEROCK JOINT VENTURE II, L.P., Successor-in-interest and Assignee
from The Cadle Company,

             Interested Party–Appellee.



                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:
      This case involves an appeal from the district court’s order denying
Appellants’ Federal Rule of Civil Procedure 60(b)(4) motion to vacate. We
AFFIRM.
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                                      No. 12-30539

                                             I.
       In October 1995, the Federal Deposit Insurance Corporation (“FDIC”) filed
a complaint against S.L.E., Inc., Future Revenues, Inc., and Roger J. LeBlanc
(collectively, “Appellants”) for sums due under various promissary notes. In
February 1996, Appellants entered into a Stipulated Judgment in favor of the
FDIC and against Appellants. The Stipulated Judgment recognized the FDIC
as the holder in due course of five promissary notes in original principal sums,
and recognized liability against Appellants for various amounts.1
       In February 2006, CadleRock Joint Venture II, L.P. (“CadleRock”) moved
ex parte to re-open the case to allow CadleRock to file the necessary pleadings
to revive the Stipulated Judgment. The next day, the district court granted
CadleRock’s motion to re-open the case. CadleRock then filed an ex parte motion
to revive the Stipulated Judgment as it pertained to Appellants (the “Revival
Motion”).    In the Revival Motion, CadleRock argued that: (1) it was the
successor-in-interest and assignee from The CadleCompany, successor-in-
interest and assignee from the FDIC; and (2) the Stipulated Judgment remained
unsatisfied. CadleRock attached the affidavit of its account officer, Denise E.
Harkless, to the Revival Motion to substantiate its claims that CadleRock was
the sole owner of the Stipulated Judgment, and that the Stipulated Judgment
remained unsatisfied. Soon after, the district court granted the Revival Motion
and revived the Stipulated Judgment (the “Revived Judgment”) as it pertained
to Appellants.
       Five years later, in June 2011, CadleRock commenced collection and
served Appellants with pleadings identifying CadleRock as the assignee of the
Stipulated Judgment. Appellants then moved to vacate and annul the Revived



       1
         The FDIC’s complaint also named Phoenix Financial Group, Ltd. (“Phoenix”) as a
defendant. The Stipulated Judgment recognized liability against Phoenix as well, but Phoenix
entered into a settlement agreement with CadleRock before this appeal. Accordingly, this
factual description excludes events pertaining to Phoenix.

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Judgment (“Motion to Vacate”). In the Motion to Vacate, Appellants argued that
CadleRock did not have standing to file the Revival Motion because it did not
move to substitute as a party plaintiff in accordance with Federal Rules of Civil
Procedure 25(c) and (a)(3) before filing the Revival Motion. Appellants conceded,
however, that “[h]ad CadleRock properly moved to substitute as the plaintiff
before filing the Revival Motion, it would have had standing to do so.”
Appellants also argued in the Motion to Vacate that they were never served with
the Revival Motion because it had been filed ex parte—and, as a result, they
were denied an opportunity to assess: (1) CadleRock’s standing to substitute as
a transferee of the FDIC, or (2) the amount that CadleRock claimed it was due.
Appellants contended that no accounting had been made for several years
regarding the balance owed on the Stipulated Judgment and that CadleRock did
not include a balance statement in the Revival Motion.
       The district court scheduled a status conference and ordered the parties
to submit lists of legal and factual issues that they wished to discuss during the
conference. Appellants framed the standing issue narrowly in their list of
submitted issues, contending that CadleRock did not have standing to obtain the
Revived Judgment because it failed to substitute as a party plaintiff under Rules
25(c) and (a)(3). After the conference, the district court denied the Motion to
Vacate. Appellants timely appealed the district court’s order denying the Motion
to Vacate.
                                             II.
       Generally, we review a district court’s Rule 60(b) ruling for abuse of
discretion.2 Jackson v. FIE Corp., 302 F.3d 515, 521 (5th Cir. 2002) (citing
Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th
Cir. 1988)). Rule 60(b)(4) motions, however, “leave no margin for consideration


       2
        While the Motion to Vacate did not technically refer to Rule 60(b), it maintained that
the judgment was void, and Appellants specifically identified Rule 60(b)(4) as a basis for the
Motion to Vacate in their list of legal and factual issues presented to the district court.

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of the district court’s discretion as the judgments themselves are by definition
either legal nullities or not.” Id. (citation and quotation omitted). For this
reason, our review of the issues raised in this appeal is “effectively de novo.” Id.
(citation omitted).
                                              III.
       Appellants raise three arguments on appeal. First, Appellants contend
that the Revived Judgment is void under Rule 60(b)(4) because CadleRock did
not have standing to file the Revival Motion in light of its failure to substitute
as a plaintiff under Rules 25(c) and (a)(3). Second, Appellants argue that
CadleRock’s failure to substitute under Rules 25(c) and (a)(3) violated their due
process rights. Third, they claim that federal law preempts Louisiana law
regarding the revival of judgments. We address each argument in turn.
                                               A.
       Appellants argue that the Revived Judgment is void under Rule 60(b)(4)
because CadleRock was required to substitute as a transferee of the FDIC under
Rules 25(c) and (a)(3) before filing the Revival Motion, and failed to do so.3 We
disagree.
       As an initial matter, Appellants conceded before the district court that
“[h]ad CadleRock properly moved to substitute as the plaintiff before filing the
Revival Motion, it would have had standing to do so.” Therefore, Appellants’
standing challenge is a narrow one—namely, whether CadleRock’s failure to
substitute as a transferee of the FDIC under Rules 25(c) and (a)(3) eliminated




       3
         As an aside, CadleRock argues that the Revived Judgment is not void under Rule
60(b)(4) because it revived the Stipulated Judgment in accordance with Louisiana procedure,
which did not require CadleRock to substitute as a transferee of the FDIC. This argument
lacks merit because we have held that state procedural rules involving substitution cannot
prevail over the requirements of Rule 25 in federal courts. See Ransom v. Brennan, 437 F.2d
513, 520 (5th Cir. 1971) (“Since Rule 25 is a valid procedural rule, it therefore follows that the
terms of Rule 25, and federal court decisions interpreting its meaning, control the manner of
effecting substitution in the federal courts.”).

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                                         No. 12-30539

CadleRock’s constitutional standing to file the Revival Motion.4 Addressing this
issue requires us to determine whether Rules 25(c) and (a)(3) impose a
substitution requirement. As explained below, we conclude that they do not.
       Our analysis begins with the text of Rule 25(c), which provides:
               (c) Transfer of Interest. If an interest is transferred,
               the action may be continued by or against the original
               party unless the court, on motion, orders the transferee
               to be substituted in the action or joined with the
               original party. The motion must be served as provided
               in Rule 25(a)(3).
Fed. R. Civ. P. 25(c).         As reflected above, Rule 25(c) includes permissive
language, and does not require transferees to substitute in an action. See
Wright, Miller, & Kane, Federal Practice and Procedure § 1958 (stressing that
Rule 25(c) “is wholly permissive”). Rule 25(a)(3), which governs the service of
substitution, provides:
               (3) Service. A motion to substitute, together with a
               notice of hearing, must be served on the parties as
               provided in Rule 5 and on nonparties as provided in
               Rule 4. A statement noting death must be served in the
               same manner. Service may be made in any judicial
               district.
Fed. R. Civ. P. 25(a)(3). The rules of service in Rule 25(a)(3) govern any
substitution motion that transferees choose to file, but neither Rule 25(a)(3) nor
(c) require a party to move to substitute. Simply put, to read a substitution
requirement into Rules 25(c) and (a)(3) misconstrues their plain terms. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal




       4
          In supplemental briefing on appeal, Appellants call our attention to two documents
that were not included in the appellate record, which the district court’s clerk’s office filed for
the first time after this appeal commenced. Appellants argue that these documents cast doubt
over CadleRock’s interest in the Stipulated Judgment. We reject this argument because, as
explained above, Appellants conceded before the district court that CadleRock would have had
standing to file the Revival Motion but for its failure to substitute under Rules 25(c) and (a)(3).


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Texts 69 (1st ed. 2012) (“The ordinary-meaning rule is the most fundamental
semantic rule of interpretation.”).
      In spite of the plain language of Rule 25, Appellants rely on two cases in
support of their position that CadleRock was required to substitute as a
transferee of the FDIC before filing the Revival Motion. See Cadle Co. v.
Neubauer, 562 F.3d 369, 371–72 (5th Cir. 2009); United States v. Transocean Air
Lines, Inc., 356 F.2d 702, 704 (5th Cir. 1966).         Both cases are readily
distinguishable.
      In Transocean, a contingent fee agreement granted Transocean’s counsel
one-third of any judgment that Transocean recovered in a dispute pending in the
District Court for the Southern District of Florida. 356 F.2d at 703–04. In the
first appeal, we held that Transocean was entitled to awards, and set out the
method to determine those awards. Id. at 703 (discussing United States v.
Associated Air Trans., 275 F.2d 827 (5th Cir. 1960)). On remand, the district
court directed Transocean and the government to reach an agreement on the
award due under this method. Id. at 704. Instead of stipulating to a judgment
in the district court, the government granted Transocean a $75,000 credit on a
claim of the government against Transocean in an entirely separate proceeding
pending in bankruptcy court in the Northern District of California. Id. The
government arranged the credit with Transocean’s trustee in the California
bankruptcy proceedings without informing Transocean’s counsel in the Florida
litigation. Id. After the district court in California approved the agreement, the
bankruptcy trustee filed a stipulation to dismiss Transocean’s claims in the
Florida district court. Id. Transocean’s counsel objected to the entry of such a
dismissal, arguing that the effect of the compromise settlement would deprive
Transocean’s counsel of its one-third interest in Transocean’s recovery. Id. The
district court agreed, and the government appealed. Id.
      In the second appeal, we affirmed the district court’s judgment, concluding
that the compromise settlement between the government and the bankruptcy

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                                       No. 12-30539

trustee ignored the rights of Transocean’s counsel under the contingent fee
agreement.        Id. at 705–06.     Relying on Rule 25, we reasoned that “[t]he
adjudication in bankruptcy of Transocean did not, of itself, substitute the
Trustee in bankruptcy in the litigation pending in Florida. There should have
been a motion and an order. Because the Trustee did not seek to be substituted
for Transocean, it did not become a party.” Id. at 704. Based on this view, we
stressed that “[o]nly where there has been a notice of dismissal filed before the
filing of an answer or motion for summary judgment, or when a stipulation of
dismissal has been filed by all parties, can a dismissal be effected without a
court order.” Id. at 705 (citing Fed. R. Civ. P. 41(a)(1)).
       Appellants attempt to extend Transocean in order to argue that CadleRock
was required to substitute as a transferee of the FDIC under Rule 25 in this
case. We disagree for two reasons. First, unlike the situation here, Transocean
involved two separate legal disputes pending in two federal district courts in
different states.        Second, Transocean involved a stipulation to voluntarily
dismiss a judgment that involved a specific party without a court order, which
implicated Rule 41(a)(1)(A)(ii) on voluntary dismissals.5                   Even assuming
arguendo that Transocean could impose a Rule 25 substitution requirement in
cases that implicate voluntary dismissal under Rule 41, Appellants offer no
argument or precedent supporting that this potential requirement should apply
when, as here, a case does not involve voluntary dismissal under Rule 41.


       5
           Rule 41(a) provides:
       (a) Voluntary Dismissal.
           (1) By the Plaintiff.
               (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66
               and any applicable federal statute, the plaintiff may dismiss an action
               without a court order by filing:
                 (i) a notice of dismissal before the opposing party serves either an
                 answer or a motion for summary judgment; or
                 (ii) a stipulation of dismissal signed by all parties who have appeared.
Fed. R. Civ. P. 41(a).

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      Neubauer—the second case that Appellants rely on—is also inapposite.
562 F.3d at 369. In Neubauer, the appellee obtained an interest in a loan that
the Neubauers had previously guaranteed. Id. at 370. The appellee filed a
Notice of Filing of Foreign Judgment in federal district court and, pursuant to
Rule 25(c), moved to substitute as a plaintiff for a portion of that judgment. Id.
The district court granted the substitution motion and the Neubauers and their
trustee moved to vacate the substitute order on the grounds that the appellee
had been improperly substituted. Id. The district court denied the motion to
vacate. Id. On appeal, the Neubauers and their trustee argued that the
appellee did not establish any interest in the judgment, and thus had no
standing to move to substitute. Id. at 370–71. On appeal, we affirmed the
district court’s order denying the motion to vacate after concluding that the
appellee did have an interest in the judgment and had standing to substitute.
Id. at 372. To reach this conclusion, we relied on an affidavit that the appellee
attached to its motion to substitute, which stated that it was a judgment creditor
with respect to that judgment. Id. at 371.
      Appellants broadly interpret Neubauer as requiring a transferee to move
to substitute under Rule 25(c) to enforce its rights with respect to an interest in
a judgment. Appellants misconstrue our holding in Neubauer. In that case, the
appellee had moved to substitute before the appeal—we did not hold that
substitution was necessary or required under Rule 25. Moreover, Neubauer
actually cuts against Appellants’ position that CadleRock does not have standing
to substitute in this case. Similar to the affidavit in Neubauer demonstrating
the appellee’s interest in the judgment and standing to move to substitute,
CadleRock attached an affidavit to the Revival Motion from its accounting officer
stating that CadleRock was the sole owner of the Stipulated Judgment. See id.
      Therefore, in light of Rule 25’s wholly permissive terms, we conclude that
CadleRock was not required under Rules 25(c) and (a)(3) to substitute as a



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transferee of the FDIC before filing the Revival Motion.       Accordingly, we
conclude that the Revived Judgment is not void under Rule 60(b)(4).
                                       B.
      Next, Appellants argue that CadleRock’s failure to substitute as a party
under Rule 25(c) and (a)(3) violated their due process rights under the Fifth and
Fourteenth Amendments of the U.S. Constitution. Specifically, Appellants
contend that because they did not learn of the Revival Motion until several years
after it was granted, they were denied an opportunity to contest or to compel
proof of: (1) CadleRock’s standing, or (2) the amount CadleRock claims is due.
They emphasize that no accounting has been made for several years regarding
the balance owed on the Stipulated Judgment and that CadleRock did not
include a balance statement in the Revival Motion.
      We have held that a judgment may be set aside under Rule 60(b)(4) when
“the district court acted in a manner so inconsistent with due process as to
render the judgment void.” Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d
204, 210 (5th Cir. 2003) (internal citation and quotation omitted).          The
requirements of procedural due process are “flexible and call[] for such
procedural protections as the particular situation demands.” Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). At a minimum, due process requires that
notice and an opportunity to be heard “be granted at a meaningful time and in
a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citation and
internal quotation marks omitted).
      Both of Appellants’ due process challenges fail. As a general matter,
Appellants admitted at oral argument that there is no due process requirement
to a hearing under Rule 25(c). With respect to standing, we reiterate that
Appellants conceded before the district court that “[h]ad CadleRock properly
moved to substitute as the plaintiff before filing the Revival Motion, it would
have had standing to do so.”      Moreover, as concluded above, a motion to
substitute under Rules 25(c) and (a)(3) was not a prerequisite to CadleRock’s

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standing. Regarding the lack of accounting, Appellants do not dispute, and
conceded at oral argument, that they still have several avenues to secure any
relief that they are due from the Revived Judgment. For instance, Louisiana
Code of Civil Procedure Article 2031(b) grants Appellants an opportunity to
annul the Revived Judgment if they can offer evidence showing that they
satisfied their obligation prior to the district court’s entry of the Stipulated
Judgment. La. Code Civ. Proc. art. 2031(b).6 Therefore, Appellants still have an
opportunity to be heard with respect to any relief that they are allegedly due.
       For these reasons, Appellants’ due process challenges fail.
                                               C.
       Finally, Appellants argue that the Supremacy Clause of the United States
Constitution preempts Louisiana procedures on revival of judgments because
those procedures conflict with Rules 69(a)(1) and 25. The Supremacy Clause
provides that federal law “shall be the supreme Law of the Land[,] any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding.” U.S.
Const. art. VI, cl. 2. It mandates that we “invalidate state law only if it conflicts
with a federal statute.” Matter of Gary Aircraft Corp., 681 F.2d 365, 369–70 (5th
Cir. 1982). Absent explicit preemptive language, state law conflicts with federal
law when “compliance with both federal and state regulations is a physical
impossibility, or where state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.” Pac. Gas & Elec.
Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983)
(internal quotations and citations omitted).
       Rule 69(a)(1) requires parties to follow state law procedure in execution of
money judgments and in proceedings supplementary to and in aid of judgment



       6
         Specifically, Article 2031(b) provides that “[a]t any time after the signing of judgment
of revival, the judgment debtor may, by contradictory motion, have the judgment of revival
annulled, upon showing that the judgment which has been revived was in fact satisfied prior
to the signing of the judgment of revival.” La. Code. Civ. Proc. art. 2031(b).

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or execution (which includes the revival of judgments), with one important
exception—that a federal statute governs where it applies. See Fed. R. Civ. P.
69(a)(1).7 Appellants concede that CadleRock followed proper procedure to
revive the Stipulated Judgment under Louisiana law, but argue that these
procedures conflict with Rule 25 because they do not require transferees to
substitute as a party. Appellants’ preemption claim assumes that Rule 25
requires a party to substitute, which we have rejected above. Given that
Appellants have not shown an actual conflict between federal and state law,
their preemption claim fails.
                                              IV.
       For the foregoing reasons, the district court’s order denying Appellants’
Rule 60(b)(4) motion to vacate is AFFIRMED.




       7
         Rule 69(a)(1) provides: “A judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution—and in proceedings supplementary to and in
aid of judgment or execution—must accord with the procedure of the state where the court is
located, but a federal statute governs to the extent it applies.” Fed. R. Civ. P. 69(a)(1).

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