               Case: 17-12889        Date Filed: 08/08/2018   Page: 1 of 7


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-12889
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:09-cv-00169-CG-B



NATIONAL LOAN ACQUISITIONS COMPANY,

                                                               Plaintiff - Appellee,

                                           versus

PET FRIENDLY, INC.
n.k.a. Xena Express, Inc., et al.,
                                                              Defendants,

TERESA Y. WEINACKER,

                                                              Defendant - Appellant.

                            ________________________

                    Appeal from the United States District Court
                       for the Southern District of Alabama
                           ________________________

                                     (August 8, 2018)

Before JORDAN, JILL PRYOR and FAY, Circuit Judges.
              Case: 17-12889       Date Filed: 08/08/2018   Page: 2 of 7


PER CURIAM:

      Teresa Weinacker, proceeding pro se, appeals from the district court’s denial

of her Federal Rule of Civil Procedure 60(b) motion to vacate a default judgment

the district court entered against her. Weinacker argues the default judgment is

void because the district court lacked personal jurisdiction and subject matter

jurisdiction. After careful review, we affirm the district court’s denial of

Weinacker’s Rule 60(b) motion.

                              I.      BACKGROUND

      In 2009, National Loan Acquisitions Company (“National”) filed a

complaint against Weinacker, Charles Weinacker, Jr., and Xena Express, Inc.,

asserting a breach of contract claim based on a promissory note. National filed a

proof of service that each defendant had been personally served. After the

defendants failed to respond to the complaint, National moved for a default

judgment. In support of its motion, National submitted several documents,

including affidavits, a copy of the promissory note, a copy of a commercial

security agreement, and a copy of a foreclosure deed. The district court granted

the motion and entered a default judgment against all of the defendants.

      National then moved for a writ of garnishment against Wal-Mart Stores,

Inc., with whom it alleged Xena Express had been doing business. The district




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court initially granted the writ, but it subsequently entered an order stating the writ

could not be enforced because Xena Express had filed for bankruptcy. 1

       In 2017, Weinacker moved to vacate the default judgment pursuant to Rule

60(b), arguing that it was invalid. A magistrate judge recommended that

Weinacker’s motion be denied. The district court adopted the magistrate’s

recommendation over Weinacker’s objection, and Weinacker appealed.

                           II.     STANDARD OF REVIEW

       Although we generally review a district court’s denial of a Rule 60(b)

motion to set aside a default judgment under an abuse of discretion standard, we

review de novo a Rule 60(b) challenge to a district court’s failure to vacate a void

judgment. Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir.

2009).

                                   III.    DISCUSSION

       The exclusive method for attacking a default judgment in the district court is

by way of a Rule 60(b) motion. Gulf Coast Fans, Inc. v. Midwest Elecs. Imps.,

Inc., 740 F.2d 1499, 1507 (11th Cir. 1984). Rule 60(b)(4) “provides that a court

may relieve a party from an order or final judgment that is void” where, for

       1
          In 2012, Weinacker was indicted in the Southern District of Alabama with several fraud
offenses stemming from Xena Express’s bankruptcy proceeding. See Indictment, United States
v. Weinacker, No. 1:12-cr-00168-AK-C (S.D. Ala. July 26, 2012). She later pled guilty to
falsifying records in connection with a bankruptcy proceeding after she transferred funds from
Xena Express to her personal bank accounts and failed to disclose those assets during Xena
Express’s bankruptcy proceedings. Plea Agreement, Weinacker, No. 1:12-cr-00168-AK-C (S.D.
Ala. Oct. 17, 2012); see 18 U.S.C. § 1519.
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example, the district court lacked subject matter jurisdiction or entered the order in

a manner inconsistent with due process. Oakes v. Horizon Fin., S.A., 259 F.3d

1315, 1318-19 (11th Cir. 2001). Unlike other Rule 60(b) motions, motions filed

pursuant to Rule 60(b)(4) need not be filed within one year of entry of the

judgment being challenged. See Fed. R. Civ. P. 60(c)(1).

      Weinacker makes three arguments that the district court erred in denying her

Rule 60(b) motion to vacate the 2009 default judgment entered against her. First,

she argues that the district court lacked personal jurisdiction over her. Second, she

argues that the district court lacked subject matter jurisdiction to enter the default

judgment against her. Third, she argues that the default judgment does not

comport with due process of law because she was entitled to a hearing prior to the

entry of default judgment. We address each of these arguments in turn.

      Weinacker argues the district court lacked personal jurisdiction over her

because she was never properly served. A court lacks personal jurisdiction when

the defendant has not been served. Pardazi v. Cullman Med. Ctr., 896 F.2d 1313,

1317 (11th Cir. 1990). Objections to personal jurisdiction, however, are waived if

a defendant fails to raise that objection in a timely manner. Id. In Stansell v.

Revolutionary Armed Forces of Colombia, for example, we held that where a

defendant “knowingly sat on his rights for nine months before filing anything at all

with the district court, he waived his right to object to any defects in the service of


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process.” 771 F.3d 713, 737 (11th Cir. 2014); see United Student Aid Funds, Inc.

v. Espinosa, 559 U.S. 260, 275 (2010) (“Rule 60(b)(4) does not provide a license

for litigants to sleep on their rights.”).

       We reject Weinacker’s argument the district court lacked personal

jurisdiction over her for two reasons. First, the record reflects that service of

process was proper; National filed a proof of service stating that Weinacker was

served on April 8, 2009. Second, because National filed suit against Weinacker

more than nine years ago, she has waived any challenge to personal jurisdiction by

failing to raise a defect in service of process until now. See Stansell, 771 F.3d at

737 (explaining that although jurisdictional defects are grounds for a Rule 60(b)(4)

motion “there are limitations on this doctrine,” because “objections to personal

jurisdiction . . . are generally waivable.” (internal quotation marks omitted)). We

note that Weinacker does not argue that she was unaware of the lawsuit against her

until she filed the Rule 60(b) motion. We thus reject her argument that the district

court should have granted her Rule 60(b) motion on that basis.

       Weinacker also argues that the district court lacked subject matter

jurisdiction to enter the default judgment against her. For a district court to have

subject matter jurisdiction, a plaintiff must allege facts supporting “complete

diversity; every plaintiff must be diverse from every defendant.” Travaglio v. Am.

Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (internal quotation marks omitted).


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If there is a deficiency in subject matter jurisdiction, district courts are

constitutionally obligated to dismiss the action. Id. at 1269. National’s complaint

adequately alleged diversity; it stated that National was an Oregon corporation

whose principal place of business was in Oregon, Xena Express’s principal place

of business was in Alabama, and Teresa and Charles Weinacker were citizens of

Alabama. 2 Additionally, it stated the amount in controversy was greater than

$75,000. See 28 U.S.C. § 1332. We thus reject her argument that subject matter

jurisdiction was lacking.3

       Finally, Weinacker argues the district court violated her due process rights

by failing to hold a hearing prior to entering default judgment against her. Again,

we disagree. First, the district court is not required to hold a hearing before

entering a default judgment. Federal Rule of Civil Procedure 55(b)(2) provides

that “[t]he court may conduct hearings . . . when, to enter or effectuate judgment, it


       2
         This Court issued the parties a jurisdictional question, asking whether Xena Express had
sufficiently alleged the citizenship of Charles and Teresa Weinacker in its complaint. We issued
an order construing Xena Express’s response to that question as a motion to amend the complaint
to correct any jurisdictional defect, granted the motion, and deemed the complaint as amended
and sufficient to establish the district court’s diversity-based subject matter jurisdiction over the
case.
       3
         In arguing subject matter jurisdiction was lacking, Weinacker contends the documents
National submitted in moving for a default judgment were fraudulent. These arguments, though,
are unrelated to the court’s subject matter jurisdiction. Instead, they focus on “fraud . . .
misrepresentation, or misconduct by an opposing party,” which must be challenged through a
Rule 60(b)(3) motion. Fed. R. Civ. P. 60(b)(3). Such a motion, however, must be made “no
more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R.
Civ. P. 60(c)(1). Because more than nine years have passed since the entry of default judgment
against Weinacker, we reject her arguments related to purportedly fraudulent documents.
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needs to . . . determine the amount of damages.” But “[g]iven its permissive

language, Rule 55(b)(2) does not require a damages hearing in every case.”

Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir. 2015). The district court may

forego a hearing, for example, “where all essential evidence is already of record.”

Id. (internal quotation marks omitted). Here, there was evidence in the record as to

National’s damages, including a copy of the promissory note. In any event, we

have held a defendant who “knowingly sat on his rights for nine months before

filing anything at all with the district court . . . waived his right to object to . . . any

denial of his right to be heard.” Stansell, 771 F.3d at 737. Similarly, here, by

waiting more than nine years to argue that a hearing was required prior to the entry

of default judgment, Weinacker has waived her right to object.

                                 IV.    CONCLUSION

       For these reasons, we affirm the district court’s order denying Weinacker’s

Rule 60(b) motion.

       AFFIRMED.




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