UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUDY COOMER,
Plaintiff-Appellee,

v.                                                                    No. 98-2236

MICHAEL COOMER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CA-96-209)

Argued: November 30, 1999

Decided: July 20, 2000

Before MURNAGHAN, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mark S. Dessauer, HUNTER, SMITH & DAVIS, Kings-
port, Tennessee, for Appellant. Robert Tayloe Copeland, COPE-
LAND, MOLINARY & BIEGER, P.C., Abingdon, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Plaintiff-Appellee, Judy Coomer, filed a federal diversity action
against Defendant-Appellant, Michael Coomer, on December 24,
1996, in the United States District Court for the Western District of
Virginia (Abingdon Division). Mrs. Coomer alleged that Mr. Coomer
breached a marital separation agreement formed in 1992. On April 8,
1998, the district court granted Mrs. Coomer's motion for summary
judgment. Subsequently, on April 22, 1998, Mr. Coomer filed a
motion to alter, amend, or vacate the district court's grant of summary
judgment. The district court denied Mr. Coomer's motion. For the
reasons discussed below, we affirm.

I.

When Mrs. Coomer filed her Complaint in December of 1996, Mr.
Coomer filed an Answer and initially attempted to have the case dis-
missed on jurisdictional grounds. When this proved unsuccessful, Mr.
Coomer stopped communicating with his counsel, David J. Hutton.
As a result, Mr. Hutton moved to withdraw as counsel of record on
October 6, 1997. A copy of the motion was forwarded to Mr. Coomer
at 124 Viewbend, Johnson City, Tennessee 37601. On October 7,
1997, the district court granted Hutton's motion to withdraw and
ordered Mr. Coomer to inform the court within thirty days whether
he intended to proceed pro se or retain the services of another attor-
ney. The court mailed a copy of the order to Mr. Coomer's Johnson
City address.

Several months elapsed with no response from Mr. Coomer. On
February 19, 1998, with the court still awaiting Mr. Coomer's
response, Mrs. Coomer filed a motion for summary judgment. In sup-
port of her motion, Mrs. Coomer submitted a sworn affidavit outlin-
ing the two ways in which Mr. Coomer breached the marital
separation agreement. A copy of the summary judgment motion was
mailed to Mr. Coomer's last known residence in Johnson City. Also
on February 19, 1998, the court entered an order instructing Mr.
Coomer to respond to the motion within twenty days. The order,
which advised Mr. Coomer that failure to respond to the order could

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result in a final judgment against him, was again mailed to Mr.
Coomer's address in Johnson City.

The deadline for Mr. Coomer's response passed without any reply.
Consequently, the court proceeded to address the merits of Mrs.
Coomer's summary judgment motion. After reviewing the terms of
the separation agreement and Mrs. Coomer's sworn affidavit, the
court determined that Mr. Coomer failed to meet his obligations as
outlined in the separation agreement. Therefore, the court granted
Mrs. Coomer's motion for summary judgment on April 8, 1998, and
awarded her $113,740.66. The court mailed a copy of the judgment
to Mr. Coomer's Johnson City address.

Unlike the previous court documents, which Mr. Coomer disavows
receiving, Mr. Coomer acknowledged receipt of the April 8 judgment.
Immediately thereafter, on April 22, 1998, Mr. Coomer filed a notice
of appearance announcing that he had retained the law firm of Hunter,
Smith & Davis as his legal counsel. On that same date, Mr. Coomer
filed a motion pursuant to Fed. R. Civ. P. 52(b), 59(e) and 60(b)
requesting that the district court alter, amend or vacate its April 8,
1998 order granting summary judgment in favor of Mrs. Coomer.

In support of his motion, Mr. Coomer alleged that he was not
informed that his former counsel, Mr. Hutton, had moved to withdraw
from the case or that he had been granted permission to do so by the
court. Mr. Coomer further alleged that he was not aware that Mrs.
Coomer had filed a motion for summary judgment or that the motion
was under advisement by the court. Given this alleged lack of notice,
Mr. Coomer argued that he was not afforded the opportunity to
respond to the motion that ultimately resulted in a judgment against
him. He argued that the case should be resolved on the merits after
both sides had a full and fair opportunity to address the disputed
issues.

Upon receipt of Mr. Coomer's motion, the district court contacted
Mrs. Coomer's counsel and asked whether Mrs. Coomer opposed the
motion. Mrs. Coomer stated her strong opposition, leading the district
court to schedule a motion hearing for June 23, 1998. On June 22,
1998, Mrs. Coomer filed a memorandum detailing her disagreement
with Mr. Coomer's motion. The district court evaluated the written

                    3
pleadings as well as the evidence presented at the hearing. In addition
to arguments from counsel, a postal clerk from Johnson City, Tennes-
see (Nathaniel Harris) testified at the hearing. Mr. Coomer did not
attend the hearing, despite having full notice of the proceeding.1

Subsequent to the hearing, the district court filed a Memorandum
Opinion and entered an order denying Mr. Coomer's motion on July
23, 1998. On August 18, 1998, Mr. Coomer filed a notice of appeal
to this court.

II.

Mr. Coomer appeals the district court's disposition in its entirety.
In his brief and at oral argument, however, Mr. Coomer rested his
motion to alter, amend, or vacate the district court's summary judg-
ment order solely on Rule 60(b), effectively abandoning his earlier
reliance on Rules 52 and 59. Accordingly, we will confine our discus-
sion to Rule 60(b), treating it as the only colorable basis for the relief
Mr. Coomer requests.

Mr. Coomer developed the following facts in support of his Rule
60(b) motion in a sworn affidavit filed on April 22, 1998. At the time
Mrs. Coomer filed her lawsuit in December of 1996, Mr. Coomer
alleges that he resided at 124 Viewbend Road, Johnson City, Tennes-
see. He alleges that he remained at this address until April of 1997,
at which time he moved to his current address at 2716 Berkshire
Lane, Kingsport, Tennessee 37660. Mr. Coomer also alleges that at
the time of his move to Kingsport, either he or his wife (Mrs.
Coomer) filed a change of address form at the Johnson City post
office requesting that Mr. Coomer's mail be forwarded to his new
address in Kingsport.
_________________________________________________________________
1 Mr. Coomer argues that he did not attend the hearing because he did
not think evidence would be received during the proceeding. Had he
known it was an evidentiary hearing, Mr. Coomer claims he would have
been present. Mr. Coomer, however, had notice of the hearing six weeks
before it occurred. The notice of hearing clearly indicated that the hear-
ing's purpose was to evaluate Mr. Coomer's own motion. Because pre-
sentation of evidence is an elemental aspect of judicial hearings, we find
Mr. Coomer's argument unavailing.

                     4
In his affidavit, Mr. Coomer also alleges that his last contact with
his original counsel, Mr. Hutton, was in February 1997. Mr. Coomer
maintains that he was never aware of Mr. Hutton's motion to with-
draw as counsel. Mr. Coomer also states that he never received notice
of Mrs. Coomer's motion for summary judgment. The only court doc-
ument Mr. Coomer acknowledges receiving after February 1997 was
the April 8, 1998 order granting judgment against him in the amount
of $113,740.66.

Several key facts, however, belie Mr. Coomer's suggestion that he
never received notice of the ongoing legal proceedings against him.
The district court dutifully kept Mr. Coomer abreast of the status of
this litigation, including Mr. Hutton's motion to withdraw, the court
order permitting Mr. Hutton's withdrawal, and two subsequent orders
instructing Mr. Coomer to reply to the court. All these notices were
sent to Mr. Coomer's Johnson City address, and none were returned
to the court by the postal service.

Indeed, the only document the post office ever returned was a copy
of the April 8, 1998 order and memorandum opinion granting Mrs.
Coomer's motion for summary judgment. Like the preceding notices,
the April 1998 court documents were sent to Mr. Coomer's Johnson
City address. When the post office returned the April 8, 1998 docu-
ments to the district court, however, there was a sticker appended to
the return stating that the one-year mail forwarding period for the
Johnson City address had expired and that Mr. Coomer's new address
was in Kingsport.2

Thus, from at least April of 1997 until April of 1998, all mail sent
to Mr. Coomer's Johnson City address was being forwarded to his
new Kingsport address. Significantly, the court documents Mr.
Coomer claims he never received were all sent to him when the mail
forwarding period was in effect. The fact that these documents were
never returned to the court by the post office raises an inference that
the documents were in fact forwarded to Mr. Coomer's new Kings-
port address, despite Mr. Coomer's claims to the contrary.
_________________________________________________________________
2 The court then re-mailed the April 8 order to Mr. Coomer's Kingsport
address, where Mr. Coomer acknowledges receiving it.

                    5
Seizing on this chain of inferences, Mrs. Coomer argues that Mr.
Coomer's failure to respond to the court documents has more to do
with Mr. Coomer's evasiveness than with genuine lack of notice. Mr.
Coomer's Rule 60(b) motion, in Mrs. Coomer's view, is simply an
disingenuous effort to place blame on the court and the postal service
for failing to keep him abreast of the status of the litigation.

III.

A. Standard of Review

Motions under Rule 60(b) are vested in the sound discretion of the
trial court and should not be disturbed by an appellate court absent a
showing that the trial court abused its discretion. See National Credit
Union Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th Cir. 1993). When the
movant seeks relief from a default judgment, however, appellate
courts apply the "abuse of discretion" standard of review somewhat
less deferentially. See id.

While the instant case superficially resembles a default judgment
(in that judgment against Mr. Coomer flowed from his failure to
respond to Mrs. Coomer's motion for summary judgment), the district
court granted summary judgment for Mrs. Coomer only after consid-
ering the merits of Mrs. Coomer's lawsuit. This distinguishes the
instant case from the usual default judgment scenario, where the out-
come follows solely from a procedural default, independent of the
underlying merits of the claim. The cases modifying the "abuse of
discretion" standard of review in the context of default judgments are
therefore inapposite. An undiluted application of the "abuse of discre-
tion" standard accordingly forms the appropriate framework for
appellate review.

B. Controlling Legal Principles

Rule 60(b) states that a court may relieve a party from a final judg-
ment, order or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

                    6
(2) newly discovered evidence; (3) fraud, misrepresentation, or
other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged;

(6) any other reason justifying relief from the operation of the judg-
ment (the "catch-all" equitable provision).

Under Fourth Circuit jurisprudence, a movant seeking relief under
Rule 60(b) must first make four threshold showings before the court
will even consider the six itemized grounds of relief enumerated
above. The four threshold showings are: (1) timeliness (i.e., the
request for relief must be filed no later than one year after the date
of the order from which the movant seeks relief); (2) a meritorious
defense (i.e., the moving party must show that, if relieved from the
order and given another chance to litigate the underlying issues, he
will have meritorious arguments to deflect the opposing party's
claims); (3) a lack of unfair prejudice to the opposing party; and (4)
exceptional circumstances. See Dowell v. State Fire & Cas. Auto Ins.
Co., 993 F.2d 46, 48 (4th Cir. 1993). District courts must rigorously
examine these four predicate requirements because we have charac-
terized Rule 60(b) relief as "extraordinary" and to be used only in "ex-
ceptional circumstances." See Compton v. Alton Steamship Co., 608
F.2d 96, 102 (4th Cir. 1979). In the unlikely event the moving party
can clear this onerous four-part threshold, he must then satisfy one of
the six enumerated factors set forth in Rule 60(b). See Dowell, 993
F.2d at 48.

The district court held that Mr. Coomer could not establish the four
threshold requirements, thereby closing the gateway to potential Rule
60(b) relief. Even if the four predicate requirements were met, the
court held that Mr. Coomer's motion for relief would still fail because
his case did not fit within any of the six itemized grounds in Rule
60(b). We agree with the district court.

C. Mr. Coomer Can Not Make the Four Threshold Showings

While Mr. Coomer met the "timeliness" prong of the four-part
threshold analysis (prong 1), he failed to offer a"meritorious defense"

                    7
(prong 2) and he failed to state "exceptional circumstances" (prong 4)
justifying the extraordinary remedy afforded by Rule 60(b).

First, Mr. Coomer has not offered a "meritorious defense" to the
allegations contained in Mrs. Coomer's summary judgment motion.
Nowhere in the affidavit underlying his Rule 60(b) motion did Mr.
Coomer make a credible argument contesting the district court's find-
ing that, as a matter of law, he violated his obligations under the sepa-
ration agreement.

While he did not directly state a defense in his affidavit, Mr.
Coomer argues that the affidavit contained oblique references to his
"Answer" to Mrs. Coomer's original complaint; and in his Answer,
Mr. Coomer stated the affirmative defenses of failure of consider-
ation, fraud in the inducement, estoppel, and set-off. Additionally,
Mr. Coomer argues that his new counsel stated a defense of "inaccu-
rate calculation of monies owed Mrs. Coomer" at the June 23, 1998
hearing on Mr. Coomer's Rule 60(b) motion.

The district court, however, had Mr. Coomer's "Answer" (and its
accompanying affirmative defenses) in hand when it granted Mrs.
Coomer's summary judgment motion and found Mr. Coomer in viola-
tion of the separation agreement. It is therefore unlikely that those
preexisting defenses would change the outcome of the litigation were
Mr. Coomer to receive a second bite at the apple under Rule 60(b).
See Augusta Fiberglass v. Fodor Contracting, 843 F.2d 808, 812 (4th
Cir. 1988) (holding that Rule 60(b) relief is only appropriate under the
"meritorious defense" threshold analysis when there is a real possibil-
ity the outcome might be different after re-litigation). Thus, in order
for Mr. Coomer to get a second bite at the apple under Rule 60(b),
he needed to state additional, more compelling defenses in the affida-
vit supporting his Rule 60(b) motion. Yet he failed to do so, falling
back on earlier defenses that the district court had already found
unpersuasive. We therefore conclude that the district court did not
abuse its discretion by finding that Mr. Coomer's affidavit failed to
state a "meritorious defense."

Second, Mr. Coomer has failed to establish the existence of "excep-
tional circumstances." If anything, the facts reveal that Mr. Coomer's
failure to respond to the court's orders and notices was probably a

                     8
deliberate attempt to delay the proceedings against him, rather than
a genuine case of exceptional hardship created by never receiving
notice in the first instance. The district court did not abuse its discre-
tion by so concluding.

D. Mr. Coomer Can Not Satisfy Any Of The Six Criteria
         Enumerated In Rule 60(b)

Even if Mr. Coomer could successfully meet all four threshold
requirements, his motion for relief would still fail when evaluated
under the six criteria enumerated in Rule 60(b). Mr. Coomer correctly
notes that the categories under Rule 60(b) are "broadly phrased", with
substantial overlap among the six itemized grounds. See Compton,
608 F.2d at 102. Mr. Coomer complicates the analysis, however, by
failing to specify which of the six grounds he believes is most perti-
nent to his situation.

Faced with this ambiguity, the district court analyzed Mr.
Coomer's motion under Rule 60's "excusable neglect" provision (the
first of the six itemized criteria). In determining whether the movant's
neglect was excusable, the court considers whether the movant was
at fault. See Home Port Rentals, Inc. v. Ruben , 957 F.2d 126, 132 (4th
Cir. 1992). When the movant is at fault, the judicial system's interest
in finality and efficiency presumptively prevails. To overcome this
presumption, the movant must adequately defend his conduct in order
to show that his neglect was truly excusable. See Heyman v. M.L.
Marketing Co., 116 F.3d 91, 94 (4th Cir. 1997) (quoting Augusta
Fiberglass, 843 F.2d at 811).

Mr. Coomer argues that his neglect of the court orders was excus-
able because he never received them. The district court did not abuse
its discretion when it found this argument unpersuasive. Three orders
were forwarded to Mr. Coomer's Johnson City address between Octo-
ber 1997 and April 1998. While Mr. Coomer was not living at the
Johnson City address during this period, a one-year mail forwarding
order was in effect, which would have routed all his Johnson City
mail to his new Kingsport address. The allegedly missing court orders
sent to Johnson City were never returned by the post office, raising
a credible inference that Mr. Coomer received them through the mail
forwarding system in Kingsport. As the district court noted (with a

                     9
justifiable degree of cynicism), it is hardly coincidental that the only
court order Mr. Coomer admits receiving was the April 8 order
awarding judgment against him in the amount of $113,000. Had Mr.
Coomer shown even the slightest diligence in the period between
April of 1997 and April of 1998, when judgment was entered against
him, this whole situation could have been avoided. Mr. Coomer's
conduct was, at best, irresponsible and, at worst, deliberately evasive.
In either event, he may not avail himself of the extraordinary remedy
afforded by Rule 60(b) on an "excusable neglect" theory.

In his brief, Mr. Coomer argues that his Rule 60(b) motion should
instead be evaluated under Rule 60(b)'s fourth criterion ("the judg-
ment is void") or, alternatively, the sixth criterion.3

Mr. Coomer's argument that the summary judgment order against
him is "void," thereby satisfying Rule 60(b)'s fourth criterion, has
some superficial appeal. The argument, however, is ultimately unper-
suasive. Even if the district court's grant of summary judgment was
in error (a proposition we reject), a judgment is not "void," within the
meaning of Rule 60(b), merely because it is erroneous. It is void only
if the court that rendered the judgment lacked subject matter jurisdic-
tion, personal jurisdiction, or the judgment was inconsistent with due
process requirements. See New York Life Ins. Co. v. Brown, 84 F.3d
137, 143 (5th Cir. 1996). Mr. Coomer specifically argues that the
granting of summary judgment against him was inconsistent with due
process, given that he (allegedly) never received notice of Mrs.
Coomer's motion for summary judgment and was never given an
opportunity to respond.

The problem is that Mr. Coomer's story about never receiving
notice of Mrs. Coomer's motion for summary judgment is not credi-
_________________________________________________________________
3 The sixth criterion, codified as Rule 60(b)(6), is a catch-all provision
giving the court broad equitable power to grant relief from judgments
"for any other reason." This clause, however, is generally invoked only
in "extraordinary circumstances." In re A.H. Robbins Co., 197 B.R. 488,
490 (E.D. Va. 1994) (citing Klapprott v. U.S. , 335 U.S. 601, 614-15
(1949)). The instant case does not present the requisite "extraordinary
circumstances" -- or at least the district court did not abuse its discretion
by so concluding.

                    10
ble. Consequently, the district court did not abuse its discretion when
it declined to consider Mr. Coomer's due process argument under
Rule 60(b)'s "the judgment is void" criterion. Put differently, it was
well within the bounds of reasonable discretion for the court to con-
clude (albeit tacitly) that the grant of summary judgment against Mr.
Coomer comported with due process notice requirements.

IV.

Mr. Coomer is undoubtedly correct that our judicial system
expresses a preference for having cases and motions resolved on the
merits after both sides have a full and fair opportunity to develop the
disputed issues. Rule 60(b), however, balances this preference for
thorough adversarial adjudication against the judicial system's
equally profound interest in finality and in encouraging diligence
among litigants. As we held in Compton:

          The remedy provided by [Rule 60(b)] is extraordinary . . . .
          [And] in determining whether to exercise the power to
          relieve against a judgment under 60(b), the courts must
          engage in the delicate balancing of the sanctity of final judg-
          ments, expressed in the doctrine of res judicata, and the
          incessant command of the court's conscience that justice be
          done in light of all the facts.

608 F.2d at 102.

There are doubtless extraordinary cases where granting a party
relief from a prior judgment is more important than vindicating the
system's interest in finality. The district court, however, did not abuse
its discretion when it concluded that Mr. Coomer failed to present
such an extraordinary case.

AFFIRMED

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