               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
               United States Court of Appeals
                    For the First Circuit

No. 06-1722

              INDIANAPOLIS LIFE INSURANCE COMPANY,

                        Plaintiff, Appellee,

                                     v.

   ROSALIND HERMAN, TRUSTEE, FINANCIAL RESOURCES NETWORK, INC.
        PROFIT SHARING PLAN AND TRUST, FINANCIAL RESOURCES
           NETWORK, INC. PROFIT SHARING PLAN TRUST, AND
                         GREGG D. CAPLITZ,

                      Defendants, Appellants,

           RUDY K. MEISELMAN, M.D. AND HOPE MEISELMAN,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                                  Before

                        Lipez, Circuit Judge,

                   Stahl, Senior Circuit Judge,

                    and Howard, Circuit Judge.



     Wayne R. Murphy with whom Murphy & Associates was on brief,
for appellants.
     Charles P. Kazarian, P.C. with whom Law Office of Charles P.
Kazarian was on brief for appellee, Rudy K. Meiselman, M.D.
     William T. Bogaert with whom Michele Carlucci and Wilson,
Elser, Moskowitz, Edelman & Dicker LLP were on brief for appellee,
Indianapolis Life Insurance Company.



                        November 9, 2006
            Per Curiam.    Indianapolis Life Insurance Co. brought a

diversity action against Rosalind Herman, in her capacity as

trustee of Financial Resources Network, Inc. Profit Sharing Plan

and Trust, Financial Resources Network, Inc. Profit Sharing Plan

and Trust, Gregg D. Caplitz (collectively the FRN defendants), and

Rudy and Hope Meiselman seeking a declaratory judgment that it

properly rescinded a "second to die" policy that it had issued on

the lives of the Meiselmans.         Indianapolis Life also brought a

breach of contract action against Caplitz to recover a commission

it paid him on the rescinded policy.            The Meiselmans also brought

a cross-claim against the FRN defendants stemming from a soured

employment    relationship     between    Rudy      Meiselman    and    Financial

Resources Network.

            The district court granted Indianapolis Life summary

judgment,     ruling   that,   because        the   defendants   had    made   an

intentional     misrepresentation        in     applying   for    the     policy,

Indianapolis Life had properly rescinded it and was entitled to a

return of the commission.          The court also entered a default

judgment against the FRN defendants on the cross-claim, which was

never answered.    The FRN defendants appeal, arguing that disputed

issues of material fact should have precluded the entry of summary

judgment for Indianapolis Life, and that the district court should

have granted their motion to set aside the default judgment.




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            Because      we   write   primarily       for   the   benefit     of   the

parties,    we   omit    a    recitation   of    the   background      and    proceed

directly to the merits of the district court's rulings.                      We begin

by considering de novo the grant of summary judgment in favor of

Indianapolis Life. See Fraidowitz v. Mass. Mut. Life Ins. Co., 443

F.3d 128, 131 (1st Cir. 2006). Under Massachusetts law, an insurer

may rescind an insurance policy by showing that the insured made a

misrepresentation in the negotiation of the policy "with [the]

actual     intent       to    deceive"     the     insurer,       or    that       the

misrepresentation "increased [the insurer's] risk of loss."                     Mass.

Gen. Laws ch. 175,       § 86.    Rescission is permissible if the insurer

establishes either an actual intent to deceive or an increased risk

of loss.    See Boston Mut. Life Ins. Co. v. N.Y. Islanders Hockey

Club, 165 F.3d      93, 96 (1st Cir. 1999).

            It is undisputed that Indianapolis Life required the

defendants to submit a statement of the Meiselmans' financial

condition prepared by a certified public accountant (CPA) as part

of the underwriting process.           Caplitz provided Indianapolis Life

with an income verification statement for the Meiselmans purporting

to   be   from   CPA    James    Goodness.       At    Caplitz's    request,       the

verification statement was in fact prepared by James Goodness' son,

Daniel, who was not a CPA.         Caplitz asked Daniel Goodness to place

the verification statement on his father's stationery and to sign

his father's name so that it would appear to have been prepared by


                                         -4-
a CPA.      There is thus no dispute that Caplitz acted with the intent

to deceive Indianapolis Life by submitting an income verification

statement for the Meiselmans, which he intentionally misrepresented

to have been prepared by a CPA.

              The FRN defendants contend that these undisputed facts do

not warrant the entry of summary judgment because Indianapolis Life

has not submitted undisputed evidence that Caplitz's intentional

misrepresentation increased Indianapolis Life's risk of loss. They

are mistaken.      Because the evidence establishes that Caplitz made

this       misrepresentation    with    the   actual   intent      to    deceive,

Indianapolis       Life   was     not    required      to   show        that   the

misrepresentation increased its risk of loss.               See Boston Mut.

Life, 165 F.3d at 99.      Accordingly, Indianapolis Life was properly

awarded summary judgment.1

              We turn now to the district court's ruling denying the

FRN defendants' Fed. R. Civ. P. 60(b) motion for relief from the

default judgment.      We review the denial of a Rule 60(b) motion for

an abuse of discretion.         See Blanchard v. Cortes-Molina, 453 F.3d

40, 44 (1st Cir. 2006).




       1
      At oral argument, the FRN defendants suggested that summary
judgment should have been denied because Indianapolis Life did not
identify the false income verification submission as the basis for
rescission in its letter informing the defendants of the recision
decision.   This argument was not raised in the FRN defendants'
initial brief and is therefore forfeit. See Rumierz v. Gonzales,
456 F.3d 31, 47 (1st Cir. 2006).

                                        -5-
            The FRN defendants' main argument is that the judgment in

favor of the Meiselmans is void.       See Fed. R. Civ. P. 60(b)(4).

They argue that the judgment is void because the subject matter of

the Meiselmans' cross-claim is identical to a prior litigation

between the same parties and therefore barred as res judicata.

            This argument misconstrues "a void judgment" under Rule

60(b)(4).    The "concept of void judgments is narrowly construed."

United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir.

1990).   A judgment is void, and therefore subject to being set

aside under Rule 60(b)(4), only if the court lacked jurisdiction or

committed a plain usurpation of power constituting a violation of

due process.    See Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir. 1995).   "A

judgment is not void simply because it is or may have been

erroneous; it is void only if, from its inception, it was a legal

nullity."    Id.

            Res judicata is an affirmative defense that is usually

deemed forfeit if not raised in the answer.         See Davignon v.

Clemmey, 322 F.3d 1, 15 (1st Cir. 2003) (citing Fed. R. Civ. P.

8(c)).      It is not a limitation on the court's jurisdiction.

Cf. Scherer v. Equitable Life Assurance Society of the United

States, 347 F.3d 394, 98 n.4 (2d Cir. 2003) (stating that, unlike

jurisdictional defects, a court is not required to apply res

judicata sua sponte). Accordingly, that res judicata may have been




                                 -6-
an available defense does not render the judgment void under Rule

60(b)(4).

            The FRN defendants also argue that relief from judgment

should have been granted under Rule 60(b)(1) because their failure

to answer the Meiselmans' cross-claim resulted from excusable

neglect. The FRN defendants have submitted an affidavit from their

attorney providing several excuses for having failed to file an

answer.   Counsel claims that he was confused as to whether he had

filed the answer and was distracted by a family health problem.

But   counsel    acknowledges     that   despite     receiving    several

notifications from opposing counsel and the court that no answer

had been filed, he still did not take responsive action.          In these

circumstances, the district court did not abuse its discretion in

concluding   that   the   FRN   defendants   had   failed   to   establish

excusable neglect. See Stonkus v. City of Brockton Sch. Dep't, 322

F.3d 97, 100-01 (1st Cir. 2003) (holding that excusable neglect was

not established where counsel claimed that he was confused over the

correct filing deadline and was busy with other matters).

            Affirmed.




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