                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1402


ORLANDO RESIDENCE, LTD.,

                Plaintiff – Appellee,

          and

FIRST REAL ESTATE DEVELOPMENT CORPORATION; RESOLUTION TRUST
CORPORATION, as Receiver for Citadel Federal Savings and
Loan,

                Plaintiffs,

          v.

KENNETH E. NELSON,

                Defendant – Appellant,

          and

HILTON HEAD HOTEL INVESTORS; WALLACE H. HUSTAD; MITCHELL A.
ANDERSON; ALBERICI/DENVER; CLELAND CONSTRUCTION COMPANY;
PARRISH   PLUMBING   COMPANY;   BAILEY   SPECIALITIES;    B&B
CONTRACTING COMPANY; CROSS COUNTRY CABINET & MILLWORK;
NOLAND COMPANY; GRINNELL CORPORATION; EASTERN TECHNOLOGIES;
GRAYBAR ELECTRIC COMPANY; HOWARD B. JONES & SONS; CAPITOL
MATERIALS; DOVER ELECTRIC COMPANY; MCCONNELL & ASSOCIATES;
CAMERON & BARKLEY COMPANY; SOUTH CAROLINA TAX COMMISSION,

                Defendants,

          and

SANWA BUSINESS CREDIT CORPORATION,

                Defendant and Third−Party Plaintiff,

          v.
RUTH HUSTAD,

                 Third Party Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.   David C. Norton, District Judge.
(9:89-cv-00662-DCN)


Argued:   January 28, 2014                   Decided:     April 7, 2014


Before DUNCAN    and   FLOYD,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished opinion. Senior Judge Davis wrote the
opinion, in which Judge Duncan joined. Judge Floyd wrote a
separate opinion dissenting in part.


ARGUED: Gary Andrew Ahrens, MICHAEL, BEST & FRIEDRICH LLP,
Milwaukee, Wisconsin, for Appellant.      Eugene N. Bulso, Jr.,
LEADER, BULSO & NOLAN, PLC, Nashville, Tennessee, for Appellee.
ON BRIEF: Joseph Louis Olson, MICHAEL BEST & FRIEDRICH LLP,
Milwaukee, Wisconsin, for Appellant.      Paul J. Krog, LEADER,
BULSO & NOLAN, PLC, Nashville, Tennessee, for Appellee.



Unpublished opinions are not binding precedent in this circuit.




                                   2
DAVIS, Senior Circuit Judge:

         Appellant Kenneth Nelson appeals the district court’s entry

of   a       four   million       dollar    judgment      against      him    based     on   his

knowing, intelligent and voluntary execution of a confession of

judgment.           The    principal       issue       presented,      among    others,       is

whether,        under       the    circumstances         shown    in    the    record,       the

district court’s 1993 order conditionally dismissing this action

effectively terminated the case such that the court lacked the

power to enter a judgment against Nelson nearly twenty years

later.        The     district      court    ruled      that     it    had    the   power     to

entertain the request for judgment and we discern no error of

law or abuse of discretion. Accordingly, we affirm.

                                                  I.

                                                  A.

         In     December          1986,     Nelson      guaranteed       a     real     estate

construction loan for more than $7 million made to his limited

liability company, Hilton Head Hotel Investors (HHHI). 1 In August

1988, upon HHHI’s default, the lender, Independence Federal Bank

(“the        Bank”)       filed    this    suit    in    South    Carolina      state    court

against HHHI and the guarantors; the defendants removed the case




         1
       Nelson jointly guaranteed the loan with his co-venturer,
Wallace H. Hustad, who is not a party to this appeal.



                                                  3
to   federal   court.     The   Bank’s       appointed    receiver,     Resolution

Trust Corporation (RTC), was later substituted as plaintiff.

      In due course, the district court entered summary judgment

allowing a foreclosure of the liens securing the indebtedness.

After an interlocutory appeal to this Court by defendants was

withdrawn, the claims against the guarantors was set for trial

in June 1993. On July 13, 1993, however, the parties having

notified the district court that a settlement had been achieved,

the court entered an order conditionally dismissing the case.

The order stated in part:

      The court having been advised by counsel for                        the
      parties that the above action has been settled:

      IT IS ORDERED that this action is hereby dismissed
      without costs and without prejudice to the right, upon
      good cause shown within ninety (90) days, to reopen
      the action if settlement is not consummated.

J.A. 49. A July 14, 1993 entry in the district court’s docket

states: “case closed.”

      A few months later, at the parties’ request, the court re-

opened the case, although the docket contains no formal order

“re-opening”    the     case.   Then,    on    October    14,   1993,   the     court

entered   a    second     order   conditionally          dismissing     the     case,

stating in part:

      On July 13, 1993, this Court entered an order
      dismissing this case without costs after being advised
      by counsel that this matter had been settled. The
      court was also advised that one of the terms of the
      settlement was the completion of the previously

                                         4
     ordered sale of the real and personal property which
     is the subject of this action. The Court is now
     advised that the parties have been unable to complete
     the documentation of the settlement but that the
     parties are endeavoring to do so as expeditiously as
     possible.

     IT IS THEREFORE ORDERED that this action is hereby
     dismissed, upon good cause shown, and the right to
     reopen the action if settlement is not consummated is
     to be held open for an additional period of time not
     to exceed December 31, 1993. It is the Court's
     expectation that the settlement will be consummated
     within this period and the property which is the
     subject of this action will have been sold by that
     time at public auction as previously ordered by the
     Court.

J.A. 50-51.

     On the basis of the above October 14, 1993 order, Nelson

contends that the case finally terminated as of the December 31,

1993 deadline set forth therein. Indeed, as Nelson contends, and

as the district court found, no party formally moved to re-open

the case before the December 31 deadline. Nevertheless, RTC did

file, on or about December 23, 1993, a so-called “Motion to

Clarify,” in which it sought certain rulings from the district

court related to the impending auction of the real and personal

property at issue in the case. Thereafter, over the course of

several months in 1994, the district court conducted at least

one hearing and it ruled on a number of issues regarding the

foreclosure   sale.   The   sale   of   the   subject   property   at   the

foreclosure auction in mid-1994 garnered three million dollars




                                    5
and the court confirmed the report of sale by order entered on

July 5, 1994.

       In     November          1994,        well        after        confirmation           of     the

foreclosure             auction,        the         parties           finally           executed     a

comprehensive            Settlement       Agreement.            The     Settlement         Agreement

stated,       in    part,       that    as     of       June    1,     1993,       HHHI    owed     RTC

principal         and    interest       on    promissory         notes       in    the     amount   of

$14,495,949.81. As a part of the settlement, Nelson and Hustad

(the       sole    members      of     HHHI)      each        agreed    to    make       installment

payments to RTC totaling $80,000 over the course of two years.

To secure their performance, Nelson and Hustad each signed a

confession          of     judgment          in         the     amount        of     $4     million.

Specifically,            the    parties       agreed          that     if    either       Nelson    or

Hustad,       respectively,            missed       a    payment,       RTC       could    file     the

relevant      confession         of     judgment         with     the       district       court    and

obtain       judgments         thereon.      On     the       other    hand,       if     Nelson    and

Hustad made all of the promised payments, the confessions of

judgment would be delivered to their attorneys.

       Thereafter, for the nearly seventeen years from November

1994 through September 2011, no activity of consequence occurred

before the district court. 2 The district court never entered a

       2
       Hustad’s confession of judgment was filed in the district
court on May 21, 1997, but there is no indication in the record
that judgment was ever sought or entered thereon.


                                                    6
final    order   or   judgment        as   contemplated        by    Federal    Rules      of

Civil Procedure 54 and 58 after the foreclosure sale and the

parties’ execution of the Settlement Agreement. The Settlement

Agreement was never presented to the court or embodied in a

court order.

                                             B.

     The    dormancy      of    the    case       ended   on   September       19,    2011,

during the pendency of other litigation in other courts between

the parties, as described infra n.3. Appellee Orlando Residence,

Ltd., asserting its status as a judgment creditor of Nelson and

identifying      itself    as    the       owner     of   Nelson’s        confession       of

judgment,    filed    a   motion       for    substitution          to   replace     RTC   as

plaintiff, and for the entry of Nelson’s confession of judgment. 3


     3
       ORL attached several documents to support its motion for
substitution and for entry of the Nelson confession of judgment.
It provided an Assignment of Judgment executed by Asset Recovery
& Management Services, L.P. (ARMS). In the Assignment, dated
November 21, 1995, ARMS stated that it had became the successor-
in-interest to RTC on February 23, 1995 with regard to Nelson’s
confession of judgment, and that it was then assigning its
rights to GP Credit Company. Specifically, ARMS assigned “all
rights as Plaintiff and judgement [sic] creditor in the above-
captioned cause, along with any and all right to payment of the
debts which were the subject of said judgement [sic], and all
collateral securing repayment of said debts.” J.A. 98.

     In addition, ORL provided an order from the Ozaukee County
Circuit Court in Wisconsin, stating that “Ownership of the South
Carolina judgment GP Credit holds against Kenneth E. Nelson
pursuant to the Assignment of Judgment attached hereto . . . is
hereby divested from GP Credit Co., LLC and is vested in Orlando
Residence, Ltd.” J.A. 100. Nelson had appealed the Ozaukee
(Continued)
                                             7
       Nelson did not oppose ORL’s motion for substitution, and

the district court granted the motion. The court also entered

the confession of judgment. The next day, on October 18, 2011,

Nelson filed a motion to strike the confession of judgment. A

few weeks later, ORL filed a motion to enter judgment, which

Nelson opposed. After full briefing on a host of issues, the

district court held a hearing on December 14, 2011.

       On August 15, 2012, the district court entered an order

directing the clerk to enter judgment against Nelson in favor of

ORL for four million dollars and the clerk entered judgment on

that   date.   Nelson    timely   moved     to   alter,   amend,   vacate,   and

dismiss   pursuant      to   Federal   Rules     of   Civil   Procedure   59(e),

12(b)(1) and 12(h)(3), and in the alternative for relief from

judgment pursuant to Rule 60(b).




County Circuit Court order. During the pendency of the instant
appeal before this Court, the Supreme Court of Wisconsin
declined to disturb the order of the Ozaukee County Circuit
Court. See January 14, 2014 28(e) letter from E. Bulso, Jr.,
Esq., (attaching order in Orlando Residence, Ltd. v. Nelson,
Case No. 2012AP001528 (Wis. Ct. App. Nov. 26, 2013)). Relatedly,
an opinion from one of our sister circuits informs us that GP
Credit is a company that was under Nelson’s dominion and control
and, essentially, was his “alter ego.” Orlando Residence, Ltd.
v. GP Credit Co., LLC, 553 F.3d 550, 558 (7th Cir. 2009). This
finding came in the course of ORL’s attempt to enforce a
judgment obtained in a Tennessee state court against Nelson.

     ORL’s showing satisfied the district court that it was the
rightful owner of the Nelson confession of judgment.



                                        8
      On March 15, 2013, the district court denied Nelson’s post-

judgment motions, finding, among other things, that its October

1993 dismissal order did not deprive the court of the power to

enter    judgment        on    the     confession      of    judgment     that     it   found

Nelson     had    executed       knowingly,         intelligently      and    voluntarily.

Orlando     Residence,         Ltd.     v.   Hilton     Head      Hotel   Investors,      No.

9:89–cv–0662, 2013 WL 1103027 (D.S.C. Mar. 15, 2013). The court

also rejected Nelson’s numerous arguments for relief under Rule

60(b)      regarding          limitations,      the        amount    of   judgment,       and

personal jurisdiction. Id. Nelson timely appealed.

                                               II.

      As    he    did    before       the    district       court,   Nelson     advances    a

myriad     of     arguments       in    support       of    his     assertion      that   the

judgment entered against him must be vacated. His overarching

assertion        is    straightforward:         the     district      court     lacked    the

power to enter judgment against him because, no party having

moved to reopen the case as of December 31, 1993, the court’s

October     14,       1993    conditional      dismissal         effectively     terminated

the action on that date and thereby deprived the district court

of   all    power       over    the    case,    save       the    exercise    of    limited,

ancillary jurisdiction, such as supplementary proceedings under

Federal Rule of Civil Procedure 69. Nelson further avers that

although a rightful owner of the confession of judgment might be

able to institute a new action against him in a proper court,

                                                9
his defenses to such an action foreclose relief and, in any

event, require a plenary proceeding consonant with due process

to adjudicate his liability.

      Nelson’s    specific       contentions      include    the     following:      (1)

the court lacked subject matter jurisdiction both because (a)

the   case     fully     ended     as   of     December     31,    1993    without     a

reservation of jurisdiction and (b) ORL lacked standing; (2) the

court lacked personal jurisdiction over Nelson; (3) ORL failed

to file and serve a summons to enforce the Settlement Agreement;

(4)   the    amount    of    the    judgment      was     excessive       under   South

Carolina law; and (5) the statute of limitations barred entry of

judgment on the confession. The district court rejected all of

these arguments, as do we.

                                         A.

      Nelson     first      contends    that      the     district    court       lacked

subject      matter    jurisdiction          to   enforce    his     confession      of

judgment, and therefore the judgment is void under Federal Rule

of Civil Procedure 60(b)(4).

      We review a district court’s findings of fact with respect

to subject matter jurisdiction under a clear error standard, so

long as the issues are not “intertwined with the facts central

to the merits of the plaintiff’s claims.” United States ex rel.

Vuyyuru v. Jaddhav, 555 F.3d 337, 348 (4th Cir. 2009) (citation



                                          10
omitted). We review any legal conclusions drawn from the facts

de novo. Id.

                                          1.

       Nelson’s initial challenge is based on his assertion that

the    district    court    lost      jurisdiction      over    the    case        when   it

entered a final order of dismissal in 1993. Like the district

court, we disagree with Nelson’s interpretation of the record.

       To   be    sure,    “[f]ederal      courts       are    courts        of     limited

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994). We should presume that an action “lies

outside this limited jurisdiction” and therefore “the burden of

establishing       the     contrary     rests     upon    the        party        asserting

jurisdiction.”      Id.    In    Kokkonen,      which    is    the    centerpiece         of

Nelson’s jurisdictional challenge, the Supreme Court held that

where a party sought to enforce a settlement agreement after it

had filed a “Stipulation and Order of Dismissal with Prejudice”

executed by all the parties to the action pursuant to Fed. R.

Civ.   P.   41(a)(1)(ii)        and   endorsed    by    the    district       court,      it

could only do so if the court had incorporated the settlement

agreement into the final order, or otherwise expressly reserved

jurisdiction. Id. at 381-82. Nelson argues that Kokkonen applies

here, that the conditional dismissal of the case on October 14,

1993 (effective, according to Nelson, on December 31, 1993) is

indistinguishable from the dismissal in Kokkonen, and as in that

                                          11
case, the district court was divested of jurisdiction after the

December 31, 1993 deadline expired.

       Nelson is mistaken. Unlike the circumstances in Kokkonen,

there was no “Stipulation and Order of Dismissal with Prejudice”

filed in this case or any other definitive order unambiguously

terminating this action. Nelson contends that we should treat

the district court’s October 14, 1993 order as a final judgment

dismissing the suit, but there is no warrant for us to do so. In

Kokkonen,       the    stipulation      of   dismissal          was    executed   by     the

parties,       filed    pursuant   to    Federal         Rule    of    Civil    Procedure

41(a)(1)(ii), and was independently “so ordered” by the district

court. Id. at 377. Here, the district court ordered that the

case would be conditionally dismissed, clearly on the assumption

that     the    settlement      agreement         and    sale     of    the    foreclosed

property were finalized by December 31, 1993. See supra p. 5

(“It   is      the    Court's   expectation       that    the     settlement      will    be

consummated [by December 31, 1993] and the property which is the

subject of this action will have been sold by that time at

public auction as previously ordered by the Court.”). As the

record      plainly     indicates,   and      the       district       court   explicitly

recognized, however, this did not happen.

       Instead, the court continued to enter orders regarding the

parties’ claims through 1994, specifically orders respecting the

foreclosure sale of property at issue in the suit. Importantly,

                                             12
this began with a “Motion to Clarify” filed on December 23,

1993,       asking    the    district   court   to   make      procedural    and

substantive changes to the provisions for the foreclosure sale

previously ordered; these matters were of sufficient substance

to   necessitate       the   district   court   holding   a   hearing   on   the

issues.

       Nelson argues that the district court’s 1994 orders did not

pertain to the claims governed by the Settlement Agreement, and

were       solely    designed   to   enforce    an   earlier     judgment    not

involving Nelson or Hustad as guarantors. Nelson’s arguments are

belied by the record: the Settlement Agreement expressly held

Nelson and Hustad accountable for assisting with the foreclosure

sale, i.e., the subject of the district court’s 1994 orders.

Moreover, although the “Motion to Clarify” was not labeled as a

motion to reopen the case, that is exactly how the district

court and the parties treated it, and with good reason.

       Among other issues to be addressed, the creditors sought

(and obtained) a limitation on the commissions to be awarded to

the Office of the United States Marshal for its services related

to the management of the foreclosure auction. See S.A. 30-42.4 To

the extent that a reduction in commissions increased the yield


       4
       We shall grant ORL’s unopposed motion for leave to file
the Supplemental Appendix and deny leave to file a surreply.



                                        13
from the foreclosure sale to the lenders, such a reduction could

only redound to the benefit of the guarantors, as well. Thus,

any suggestion by Nelson that he was uninterested in the court’s

consideration of the matters raised in the “Motion to Clarify”

rings hollow.

       The procedural posture of the case after December 31, 1993

mirrors what happened earlier in the case. The district court

had    entered    a       nearly   identical      order     on   July   13,       1993,

dismissing the case and allowing for re-opening within 90 days.

Despite the ostensible 90-day window for reopening, the district

court acknowledged that it nonetheless reopened the case 93 days

after the case was closed. See Home Port Rentals, Inc. v. Ruben,

957 F.2d 126, 131 (4th Cir. 1992) (“It is peculiarly within the

province of the district court . . . to determine the meaning of

its own order.”). Furthermore, unlike the clerk’s entry closing

the case when the July dismissal order was entered, no such

clerk’s entry is coupled with the October 14, 1993 order.

       Notably, the Settlement Agreement was not executed until a

year after the entry of the October 14, 1993 order. After that,

the district court neither entered a final order of dismissal,

as mentioned above, nor did it treat the October 14, 1993 order

as final. See Anderson v. Stephens, 875 F.2d 76, 80 n.8 (4th

Cir.    1989)    (“We      are,    of   course,    mindful       of   the   inherent

deference   due       a    district     court   when   it    construes      its    own

                                          14
order.”). Thus, to hold on this record that the district court’s

October 14, 1993 order ripened into a final judgment on December

31, 1993 would be a fiction of our own creation and contrary to

the treatment by the district court of its own order.

       In sum, before the entry of the judgment by confession (the

order before us for review), there had not been a final judgment

or final order of dismissal in this case. The district court had

neither relinquished nor otherwise lost jurisdiction. Unlike the

circumstances in Kokkonen, the district court in this case was

not asked to enforce a settlement agreement after the case had

been unambiguously and finally dismissed. From the perspective

of the district court, moreover, the coincidence that Nelson

executed his confession of judgment incident to a settlement of

litigation       was   just    that:     an    irrelevant    coincidence.     The

district court was obliged under South Carolina law merely to

determine whether Nelson had executed the confession of judgment

knowingly, intelligently and voluntarily. See S.C. Code § 15-35-

350.       He   did.   The    court    was    justly   unconcerned     with   the

background        circumstances       that     prompted     him   to    do    so.

Accordingly, this case falls well outside the rule of Kokkonen,

and we reject Nelson’s contention to the contrary. 5


       5
       A brief word about the dissent is in order. One would have
thought that if it were true that this case requires “nothing
more than mechanical application of the Supreme Court’s decision
(Continued)
                                         15
                                   2.

     With   regard   to   the   second   subject   matter   jurisdiction

challenge, based on a lack of standing, Nelson contends that ORL



in Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S.
375 (1994),” post, at 29, the dissenting opinion would have been
no more than the page and one half it takes to say that. But the
dissent goes on for another fourteen pages excoriating the
majority’s reasoning. One is left to wonder, Why is that? What
is it that bothers the dissent so much? The answer is fairly
obvious: the district court treated the “Motion to Clarify” as a
motion to reopen the case, and, as the dissent acknowledges, we
do not apply a “magic words” rule in these circumstances. Post
at 34 (acknowledging that “papers filed with the court need not
contain any ‘magic words’ to effectuate their purposes”). We
further agree with the dissent that “RTC’s decision to caption
the Motion to Clarify as it did—rather than as a “Motion to
Reopen”—is not fatal to ORL’s current position.” Post, at 34.

     We also agree with the dissent that this case is a “. . .
convoluted procedural and substantive morass[.]” Post, at 42. But
in addition to what the documents in the record tell about the
case, we have the benefit of knowing what the district court did
in its management of the case. Despite the dissent’s scolding,
we remain convinced that our interpretation of the record is the
correct one. The dissent is free, of course, even in this
“convoluted . . . morass” of a case, to apply its de novo
standard of review to the pure legal issue of whether, assuming
the “Motion to Clarify” could not plausibly be treated as a
motion to reopen, the district court lost jurisdiction on
January 1, 1994. We respectfully suggest, however, that the
dissent is not free (no matter the number of “telltale clues” it
can or cannot identify, see post, at 35) to apply a de novo
standard of review to the antecedent question: whether the
district court could plausibly treat the “Motion to Clarify” as
a motion to reopen. If an abuse of discretion standard of review
does not apply to that question, then it is difficult to imagine
where it would ever apply. There was no abuse of discretion
shown here, as the dissent, itself, concedes. Post, at 33
(“[T]he majority accords much due deference to the district
court’s province to interpret its own orders . . . ; that is the
law surely enough, and I take no issue with this approach.”).



                                   16
has    failed   to     provide    sufficient      evidence      to    establish      the

transfer of an interest in the confessed judgment from RTC to

ORL (via ARMS and GP Credit). This argument also fails.

       Article III standing requires a showing of three elements:

first, the plaintiff has “suffered an injury in fact”; second, a

“causal connection between the injury and the conduct complained

of”; and third, it is “likely, as opposed to merely speculative,

that    the   injury    will     be   redressed      by   a   favorable    decision.”

Lujan    v.   Defenders    of    Wildlife,     504     U.S.    555,   560-61   (1992)

(internal quotations marks and citations omitted). Nelson takes

issue with the first of these – that ORL has suffered an injury.

       Nelson correctly states that “[w]ithout an assignment, a

nonparty to a contract does not have standing to sue on the

contract.” Egrets Pointe Townhouses Prop. Owners Ass’n, Inc. v.

Fairfield Communities, Inc., 870 F. Supp. 110, 117 (D.S.C. 1994)

(applying     South     Carolina      law).    But    Nelson’s      insistence      that

there has not been a proper assignment does not make it so.

       In addition to the documents establishing the conveyance of

the    confessed     judgment     from   RTC    to    ARMS     to    GP   Credit,   ORL

presents a state court judgment granting title to and possession

of the confession of judgment to ORL. See Orlando Residence,

Ltd. v. Nelson, 834 N.W.2d 416, 424 (Wis. Ct. App. 2013), appeal

denied Orlando Residence, Ltd. V. Nelson, Case No. 2012AP001528



                                          17
(Wis. Nov. 26, 2013). The Wisconsin state courts have spoken

conclusively as to the ownership of the confessed judgment:

      The Nelsons claim that the turnover motion is moot
      because the underlying judgments have expired and are
      unenforceable. Additionally, the Nelsons claim that
      property already taken from them exceeds the amount of
      Orlando's judgment.

      In response to the Nelsons’ arguments, Orlando claims
      that it is immaterial whether or not the judgments
      have expired, that Orlando's Wisconsin judgment is
      valid and enforceable, and that Orlando's judgment has
      neither expired nor been satisfied.

      Orlando is right. That is, there is nothing in
      §816.08, Wis. Stats., limiting Orlando’s right to
      obtain an order assigning ownership of the South
      Carolina and Oklahoma judgments to it. As indicated in
      part II A above, Orlando’s Wisconsin judgment is valid
      and enforceable. The Nelsons’ claim that the value of
      property already taken from them exceeds the amount of
      the judgment is unsupported by any evidence and is
      contrary to all available information.

                                        ***

      For the above stated reasons, the court hereby orders
      the following:

                                        ***

       (4) Orlando’s Motion for a Turnover of the GP Credit
      Co., LLC property is granted, and the court will sign
      Orlando’s proposed Order forthwith.

J.A. 265.

      Nelson’s contentions about the validity or applicability of

the   Wisconsin      state   court     judgment      amount    to    no    more   than

splitting    hairs.     Nelson    makes       much    of    the     fact   that    the

Wisconsin    court    referred    to    the   confession      of    judgment      as   a

“judgment”    rather    than     the   “Settlement         Agreement/Confession.”

                                        18
App.   Br.       36-37.      There    is   no     meaningful     distinction       in   these

terms, and it is evident from the transfer paperwork provided by

ORL that the interest transferred was whatever the predecessor-

in-interest had – regardless of how it was described in court

papers.         This   is    evident       from    the   broad       description    in    the

Wisconsin judgment (“the GP Credit Co., LLC property”). 6

       The district court credited the evidence provided by ORL

that       it   was    the    successor-in-interest         to       the   holder   of    the

confession of judgment in the original case. Here, ORL has met

its burden based on its pleadings and attached documentation.

Nelson has done nothing more than point to the evidence adduced

and stating that it is not enough. But it is enough. There is

nothing in the record which would lead this Court to think “with

[a]    definite        and     firm    conviction        that    a    mistake   has      been

committed.” Simmons v. United Mortgage & Loan Inv., LLC, 634

F.3d 754, 762 (4th Cir. 2011) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948)), and we decline Nelson’s

invitation to do so.




       6
       Nelson also makes a host of arguments regarding the
admissibility of certain documents and the sufficiency of the
evidence as to the transfer of the confession of judgment
between RTC and ARMS. Nelson made none of these arguments to the
district court and has therefore waived them. See Robinson v.
Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir. 2009).



                                                19
                                                B.

       Nelson     next    contends         that       the    district     court      erred      by

failing    to    conduct       a   plenary        proceeding       and    that      it    lacked

personal jurisdiction over him. Again, we disagree.

                                                1.

       Federal     courts          have     the       power       to    enter       confession

judgments, as has been recognized by courts time and again. 28

U.S.C. § 1874; see D. H. Overmyer Co. Inc., of Ohio v. Frick

Co., 405 U.S. 174, 176 (1972) (“The cognovit is the ancient

legal device by which the debtor consents in advance to the

holder’s obtaining a judgment without notice or hearing, and

possibly even with the appearance, on the debtor’s behalf, of an

attorney designated by the holder.”); Millner v. Norfolk & W. R.

Co.,   643   F.2d       1005,      1009    (4th       Cir.    1981).     As    we   discussed

earlier, South Carolina law explicitly allows for the entry of

confession judgments. S.C. Code § 15-35-350.

       Nelson insists that he should have received the benefit of

a plenary proceeding in order to present his defenses in a full

evidentiary hearing. But this argument ignores the law allowing

for this type of proceeding where authorized by state law in a

diversity    action,       and      where       the    waiver     of    full    service         was

executed by       the    debtor.       Where      there      is   clear    and      convincing

evidence        that     the       waiver        was        voluntary,        knowing,          and

intelligently       made,       then      the   confession        of    judgment         will   be

                                                20
upheld. Overmyer, 405 U.S. at 185-87, F.D.I.C. v. Aaronian, 93

F.3d 636, 640 (9th Cir. 1996).

       Millner is instructive on this point. There, Millner filed

suit against his employer, and his employer then pointed to a

negotiated settlement agreement as a bar to the action and a

finding of liability. 643 F.2d at 1006-07. The court held a

hearing     on    the       settlement     agreement,         taking     evidence     from

several witnesses and examining many documents. Id. at 1007-08.

The    district        court   held     that      the    settlement      agreement        was

binding, and entered an order of dismissal with prejudice. Id.

at 1008. Unlike Nelson, however, Millner produced substantial

evidence    that       he   had    revoked      his     consent   to     the   settlement

agreement,       and    that   there     was    never     a   meeting     of   the   minds

between his counsel and the employer. Id. at 1009-10. Millner

also disputed the number of claims resolved in the settlement

agreement, and pointed out that he never signed the release. Id.

at 1010.

       Nelson does not, and cannot, generate a dispute that the

Settlement       Agreement        appropriately         binds     him.    Nelson     is     a

sophisticated business person with multiple degrees in business

administration and finance. He is licensed as a certified public

accountant in Wisconsin, and has been a real estate broker for

over   30   years.       Nelson    initialed       each    page    of    the   Settlement

Agreement,       including        the   pages     describing      the    confession       of

                                             21
judgment, and his counsel also signed an affidavit that he had

explained the terms of the Settlement Agreement to Nelson.

      Nelson      executed       the       Settlement         Agreement          nearly      twenty

years    ago     with   full     knowledge            of   what   he       was      signing,    and

received a release of claims worth more than $14 million. Nelson

cannot take advantage of that benefit without also complying

with the terms to which he agreed, including his confession of

judgment. Accordingly, we reject, as did the district court, his

assertion that he was entitled on this record to an evidentiary

hearing.

                                                 2.

      Nelson’s objection based on an alleged lack of personal

jurisdiction       likewise      fails.          The       district    court         found     that

Nelson     had    submitted       to       the        personal      jurisdiction          of    the

district       court    based    on        the    confession          of    judgment.          South

Carolina law holds that consent to the confession of judgment

was   equivalent        to   a   voluntary             appearance.         A     confession      of

judgment    “is    essentially         a    voluntary         act;     it      is    a   voluntary

submission to the jurisdiction of the court, giving by consent

and   without     the    service       of    process         what     could         otherwise    be

obtained by summons and complaint, and other formal proceedings

. . . .” Triangle Auto Spring Co. v. Gromlovitz, 242 S.E.2d 430,

431 n.1 (S.C. 1978) (quoting 49 C.J.S. Judgments § 134 (1947)).



                                                 22
     Nelson           does        not    dispute     that        he   signed       the    Settlement

Agreement         which      called        for   the       filing      of    the    confession   of

judgment         in    the    district         court.       J.A.      76    (the    confession   of

judgment will be “in a form suitable for recording with the

Clerk of Court for the United States District Court for the

District of South Carolina”). As ORL points out, the confession

itself      is    captioned             with   the    name       of    the   relevant      district

court.

     Nelson simply recycles his previous arguments regarding the

court’s          lack        of     jurisdiction            to        continue       to    exercise

adjudicative authority over the case following the Settlement

Agreement.            Nelson’s          arguments         lack     merit     for     the    reasons

discussed above. Nelson consented to the personal jurisdiction

of the court by way of the confessed judgment, and cannot deny

it now. The district court did not err or otherwise abuse its

discretion in finding that it had personal jurisdiction over

Nelson. 7

                                                 III.

     Nelson’s alternative claims relate to the denial of his

Rule 60(b) motion for relief from the judgment. We review the


     7
       Indeed, as the case never came to an end by dismissal
order or otherwise, just as the district court retained subject
matter jurisdiction, it also retained personal jurisdiction over
the original defendants, including Nelson.



                                                     23
denial of a 60(b) motion for abuse of discretion. Aikens v.

Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en banc).

                                          A.

       Nelson’s     next    argument     is    that   the    amount     due   in    the

confessed judgment ($4 million) impermissibly exceeds the amount

that     was    originally       due     under    the     Settlement      Agreement

($80,000), in violation of South Carolina law. We disagree.

       South Carolina law on confessed judgments requires that:

       Before a judgment by confession shall be entered a
       statement in writing must be made and signed by the
       defendant and verified by his oath to the following
       effect:

       (1) It must state the amount for which judgment may be
       entered and authorize the entry of judgment therefor;

       (2) If it be for the money due or to become due, it
       must state concisely the facts out of which it arose
       and must show that the sum confessed therefor is
       justly due or to become due; and

       (3) If it be for the purpose of securing the plaintiff
       against   a  contingent  liability,   it  must   state
       concisely the facts constituting the liability and
       must show that the sum confessed therefor does not
       exceed the liability.

S.C.   Code     §   15-35-360.     The    district      court    compared     the    $4

million owed in the confession to the amount stipulated to by

Nelson    and   HHHI   in    the   Settlement      Agreement:     $14,495,949.81.

Nelson takes issue with this comparison, maintaining that the

proper    comparison        is   with    the     amount     he   owed    under      the

Settlement Agreement ($80,000). Nelson cites to South Carolina

law holding that liquidated damages provisions exceeding the sum

                                          24
originally due on the contract are unenforceable. But, as with

his     other   arguments,        Nelson       fails          to     read    the     case     law

carefully. South Carolina holds that where “the sum stipulated

is    plainly   disproportionate          to       any    probable        damage     resulting

from breach of contract, the stipulation is an unenforceable

penalty.” Lewis v. Premium Inv. Corp., 568 S.E.2d 361, 363 (S.C.

2002)     (emphasis      added).     Nelson             cites       no    support     for     the

contention that the proper comparison is between the amount he

owed    under   the     Settlement       Agreement            and   the     amount    now    owed

under     the    confession.        Accordingly,                the       “probable     damage

resulting from breach of contract,” is more appropriately the

$14 million figure, as it is what RTC was owed under the loan

agreements originally disputed in the lawsuit.

       The   district     court    did     not          err    or    otherwise       abuse    its

discretion in ruling that the confession damages were not an

impermissible penalty.

                                              B.

       Finally, Nelson contends that the district court erred by

applying the doctrine of equitable tolling as to limitations.

       Nelson’s argument begins with the faulty premise that South

Carolina’s      three    year     statute          of    limitations         for     breach    of

contract     claims,     S.C.     Code    §    15-3-530,            is    applicable        here.

Nelson again recycles his arguments that under the circumstances

of this case, the confession of judgment proceedings should be

                                              25
deemed     and   treated    as     a    new   action.       As   discussed     above,    we

reject this theory of the case.

      Nevertheless, Nelson correctly asserts that enforcement of

the judgment is time-limited. South Carolina law dictates that

executions of final judgments must issue within ten years. S.C.

Code § 15-3-530; see Linda Mc Co., Inc. v. Shore, 653 S.E.2d

279, 282-84 (S.C. Ct. App. 2007). The last payment under the

Agreement was due on November 1, 1996, which Nelson accepts as

the last date of a potential breach of the Settlement Agreement.

Applying the statute of limitations, the confession of judgment

should have been perfected by November 1, 2006.

      South      Carolina    law       allows      for    equitable   tolling    of     the

limitations period, however, “where it is justified under all

the circumstances.” Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr.,

687 S.E.2d 29, 33 (S.C. 2009). In Hooper, the Supreme Court of

South Carolina tolled the statute of limitations for a plaintiff

who was unable to serve the defendant until limitations had run,

due in large part to the defendant’s failure to properly list

its registered agent for service with the Secretary of State.

Id.   at    33-34.   The     court       held      that    “public    policy    and     the

interests of justice” warranted equitable tolling. Id. at 34.

      The     district      court       relied      on    Magnolia    North     Property

Owners’     Association,      Inc.      v.    Heritage      Communities,       Inc.,    725

S.E.2d 112 (S.C. Ct. App. 2012), to determine that equitable

                                              26
tolling      was   appropriate         in   this    case.    There,        a    homeowners’

association        in   a    condo     development        sued    the     developers        for

various claims surrounding construction defects. Id. at 117. The

developer claimed that because the homeowners’ association did

not   file    suit      until    May    2003,     limitations       barred       the     claim,

which    allegedly       accrued       in   March   2000,        when    the    association

commenced     meetings        and    operations.      Id.    at     125.       However,     the

facts revealed that the developers effectively controlled the

homeowners’ association until sometime in September 2002. Id.

The court held that it found “unpersuasive Appellants’ claim

that an organization they controlled would have initiated an

action against itself during this period.” Id. Nelson argues

that the reasoning of Magnolia North does not apply to this case

because he could not be “disloyal” to GP Credit as GP Credit is

his “alter ego.” App. Br. 64-65.

      This logic is confounding at best. The exact point of the

court’s holding in Magnolia North was that the developers would

hardly     file      suit       against     themselves;          here,     it       would   be

preposterous       to    think      that    GP   Credit    would        file    a   confessed

judgment     against        Nelson     because     that    would    amount          to   Nelson

obtaining a judgment against himself.

      The district court did not abuse its discretion in holding

that the statute of limitations was tolled for the 18 years GP

Credit held the confessed judgment, thwarting all efforts by the

                                             27
rightful judgment creditors to take possession. Therefore, ORL’s

filing of the confession of judgment was not time-barred.

                                  IV.

     We   GRANT   ORL’s   unopposed    motion   for   leave   to   file   the

Supplemental Appendix and we DENY the motion for leave to file a

surreply. The judgment of the district court is

                                                                   AFFIRMED.




                                      28
FLOYD, Circuit Judge, dissenting in part:

     I do not think that the district court maintained subject

matter jurisdiction over this case once the October 14, 1993

dismissal order became final on January 1, 1994.     I therefore

would not reach the merits of ORL’s claim for $4 million based

on Nelson’s confession of judgment and very respectfully dissent

to Part II.A.1 of the majority’s opinion.

                               I.

     This case requires nothing more than mechanical application

of the Supreme Court’s decision in Kokkonen v. Guardian Life

Insurance Co. of America, 511 U.S. 375 (1994), and any attempt

to meaningfully distinguish it falters under a more exacting

review.   Although I recognize that the dismissal in Kokkonen was

pursuant to a stipulation by the parties under Federal Rule of

Civil Procedure 41(a)(1)(ii), the Supreme Court was clear that

district courts’ authority in such a situation is no different

than when dismissal is court-ordered pursuant to Rule 41(a)(2),

as it was in this case.    In summarizing its holding, the Court

stated the following:

     The short of the matter is this: . . . . When the
     dismissal is pursuant to Federal Rule of Civil
     Procedure 41(a)(2), which specifies that the action
     “shall not be dismissed at the plaintiff’s instance
     save upon order of the court and upon such terms and
     conditions as the court deems proper,” the parties’
     compliance with the terms of the settlement contract
     (or the court’s “retention of jurisdiction” over the
     settlement contract) may, in the court’s discretion,

                               29
     be one of the terms set forth in the order.       Even
     when, as occurred here, the dismissal is pursuant to
     Rule 41(a)(1)(ii) (which does not by its terms empower
     a district court to attach conditions to the parties’
     stipulation of dismissal) we think the court is
     authorized to embody the settlement contract in its
     dismissal order or, what has the same effect, retain
     jurisdiction over the settlement contract[] if the
     parties agree.

Id. at 381–82 (emphasis added).

     Thus,     that    “[i]n   Kokkonen,      the   stipulation     of    dismissal

was executed by the parties, filed pursuant to Federal Rule of

Civil Procedure 41(a)(1)(ii), and was independently ‘so ordered’

by the district court[,]” ante at 12, does not differentiate

Kokkonen from this case for any pertinent purpose.                     The district

court   in    this    case   maintained     no   greater    authority     than   the

district court in Kokkonen, and insofar as both district courts

failed to exercise that authority, the result—a want of subject

matter jurisdiction—should be the same.

     The majority’s couching of the district court’s October 14,

1993 order as having “conditionally dismissed” the case, ante

at 12   (emphasis      deleted),     results     from   picking    language      from

that order and imputing into it meaning where there is none.

Plainly      and   simply,   the    order    dismissed     the   action—sans     any

“if-then”      Boolean-like        operators     and     sans    any     conditions

precedent—and to characterize the district court’s “expectation

that the settlement will be consummated” either as a reservation

of subject matter jurisdiction or as a retention of the power to

                                        30
enforce the settlement agreement has zero basis in the law and

runs smack into the Supreme Court’s central holding in Kokkonen

and this Court’s cases applying the same.                            Kokkonen, 511 U.S.

at 381 (“The judge’s mere awareness and approval of the terms of

the settlement agreement do not suffice to make them part of his

order.”); see Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 283

(4th Cir. 2002) (“Where a court merely recognizes the fact of

the parties’ agreement and dismisses the case because there is

no longer a dispute before it, the terms of the agreement are

not made part of the order and consequently will not serve as a

basis of jurisdiction. . . . This rule is interpreted to require

that    the   district       court    give       a    clear    indication           that    it   is

incorporating     the    terms       of    the       agreement      into    that      order      or

retaining     jurisdiction          over       the    agreement.”        (emphasis         added)

(paragraph break omitted)).

       To be sure, though, the October 14, 1993 order did provide

to RTC “the right to reopen” the lawsuit; but any reopening

required some triggering action (e.g., the filing of a motion).

Final    dismissal,      on    the    other          hand,    was   to     be   the        default

disposition     of    the      case       on     January       1,   1994,       absent        that

triggering action (hence, the right to “reopen” the action and

not the right to “effectuate/finalize dismissal” if settlement

is consummated).         Thus, to the extent that dismissal was at all

“conditional[],”        it    was    so    upon       RTC     not   filing      a    motion      to

                                                31
reopen, which, as explained below in Part II, it did not do.

The district court therefore became divested of subject matter

jurisdiction on January 1, 1994.

       The majority contends that the December 23, 1993 Motion to

Clarify was, in essence, a motion to reopen the case.                  Before

addressing the Motion to Clarify on the merits, however, I note

that   the   weakness   in    the    majority’s   “conditional     dismissal”

theory is highlighted by the very presence of a second basis as

to why the district court retained subject matter jurisdiction.

In other words, if the dismissal was truly conditional upon the

parties consummating settlement, as the majority claims, it is

curious,     then,   that    the    majority   would   need   to   defend   on

alternative footing its position that the district court had

subject matter jurisdiction based on a motion that purported to

reopen the case.        It is undisputed that the parties did not

consummate settlement prior to the December 31, 1993 deadline,

and based on the majority’s view of the conditional effect of

the October 14, 1993 order, that solitary fact alone should end

the inquiry: no settlement, no dismissal, case continues.

       Still, the majority endeavors to justify the existence of

subject matter jurisdiction on several alternative bases, each

of which becomes transparent when viewed under a more scrupulous

microscope.



                                       32
                                       II.

      The Motion to Clarify could be more aptly described as an

ancillary and administrative “motion to follow the law” rather

than a seminal “motion to reopen,” as the majority views it.                    As

an initial matter, the majority accords much due deference to

the   district    court’s      province    to   interpret     its    own   orders,

see ante at 14; that is the law surely enough, and I take no

issue with this approach.            But the majority is disloyal in its

adherence to that framework because the district court itself

stated plainly that nobody moved to reopen the case.                       In the

March 15, 2013 order (the order on appeal) regarding Nelson’s

motion pursuant to Rules 59(e), 12(b)(1), 12(h)(3), and 60(b),

the district court recited the relevant facts of the case as

follows: “The case was again dismissed [on October 14, 1993]

‘with   right    to   reopen    if   settlement   is    not   consumated     [sic]

before 12/31/1993.’       Nobody moved to reopen the case before the

December   31,    1993   deadline.”       (J.A.   417   ([sic]      in   original)

(emphasis added) (quoting entry 117 on the docket sheet).)

      If the district court were truly “treat[ing]” the Motion to

Clarify as a motion to reopen, as the majority contends, ante

at 13, one can only assume that the district court would have

mentioned that motion at this factual juncture before jumping

right into the November 1994 settlement.                Perhaps, even if the

district court were silent regarding the presence or absence of

                                        33
a motion to reopen, there might be room to debate whether the

Motion to Clarify was, in effect, a motion to reopen; but not

only did the district court make no mention of the all-important

Motion    to    Clarify,      the    district       court      further       affirmatively

stated    that,       “Nobody    moved       to   reopen       the     case   before    the

December 31, 1993 deadline.”              Thus, in claiming that the Motion

to   Clarify     was,    in   essence,       really     a     motion    to    reopen,    the

majority all but concludes that the district court committed

clear error in its recitation of the facts as stated in the

March 15, 2013 order.

      Not surprisingly, there is a dearth of record support for

the notion that the district court and the parties (referring to

RTC, not ORL) treated the Motion to Clarify as a motion to

reopen    due    to     failed      settlement      negotiations.             Although    I

recognize that RTC’s decision to caption the Motion to Clarify

as it did—rather than as a “Motion to Reopen”—is not fatal to

ORL’s current position, see Belk, Inc. v. Meyer Corp., U.S., 679

F.3d 146, 157 (4th Cir. 2012), nowhere in the Motion to Clarify

(or the subsequent Amended Order of Foreclosure) are the words

“settlement” or “reopen” ever mentioned.                         That being said, I

further   recognize       that      papers     filed    with     the    court    need    not

contain any “magic words” to effectuate their purposes.                                 See

Stevenson v. City of Seat Pleasant, 743 F.3d 411, 418 (4th Cir.

2014).     But    certainly,        if   RTC      and   the    district       court    truly

                                             34
viewed the Motion to Clarify as one to reopen, one would expect

that there would be some mention of—or at a bare minimum, a

fleeting         reference     to—the   failed    settlement       negotiations,        the

December 31, 1993 deadline to settle, or the October 14, 1993

dismissal order setting forth that deadline. 1                     But each of these

telltale clues that the parties and the district court treated

the Motion to Clarify as one to reopen are apparitions.

       Aside       from    RTC’s    request      to     waive     its    claim    for     a

deficiency judgment (which I address in greater detail below),

the Motion to Clarify essentially asked the district court to

follow      the       proper   procedure    for       foreclosing       on   a   property

pursuant to a judicial sale where the Office of the U.S. Marshal

has not seized the property which is the subject of the action;

in short, the Motion to Clarify simply asked the district court

to follow the law.              The majority elevates the district court’s

proper application of the rule of law as effecting “procedural

and substantive changes to the provisions for the foreclosure

sale,” ante at 13, but ignores the fact that the foreclosure

sale       was    a    foregone    conclusion,        and   the    requested      relief

regarding the legally proper procedure for executing the sale


       1
       By glaring contrast, in the October 14, 1993                           order, the
district court refers expressly to (1) the July 13,                           1993 order
of dismissal and (2) the fact that the parties were                           “unable to
complete the documentation of the settlement.” (J.A.                         50.)



                                           35
had no bearing on any pending settlement agreement.            At the end

of the day, all RTC was doing was getting its ducks in a row to

prepare for what was inevitable.

     The principal flaw of the majority’s view that the Motion

to Clarify somehow reopened the case is to read that motion in a

piecemeal fashion.        The majority provides a lone purportedly

“good reason” for why the parties and the district court treated

the Motion to Clarify as a motion to reopen: Nelson supposedly

had an interest in the Motion to Clarify because “a reduction

[in commission awarded to the Office of the U.S. Marshal] could

only redound to the benefit of the guarantors.”            Ante at 13–14.

But this rationale relies on an incomplete reading of the Motion

to Clarify and a fundamental misunderstanding of the nature of

the foreclosure proceedings.        And just as with the majority’s

high-level comparison of the facts of Kokkonen with the facts of

this case, the Devil is in the details.

     In   addition   to   seeking   to   limit   the   commission   to   the

Office of the U.S. Marshal, the Motion to Clarify also sought to

waive RTC’s right to a deficiency judgment against Nelson on

both mortgages.      A deficiency judgment is “[a] judgment against

a debtor for the unpaid balance of the debt if a foreclosure

sale . . . fails to yield the full amount of the debt due.”

Black’s Law Dictionary 918–19 (9th ed. 2009).             Thus, when RTC

waived its right to a deficiency judgment, RTC essentially let

                                    36
Nelson “off the hook” for any discrepancy between the amount

that    RTC     would       obtain     from        the   foreclosure      sale     and    the

remaining balance owed on the loans.                          Nelson therefore had no

interest in whether the Office of the U.S. Marshal received a

commission because he was not required to make up the difference

to RTC, even if precluding the Office of the U.S. Marshal from

receiving a commission would benefit RTC directly.

       Indeed,      if    Nelson     was      so    interested     in     the    Motion   to

Clarify, as the majority claims, query then: why did he not file

any motions or other papers either supporting or opposing that

motion?       Instead, rather than taking a position—any position—on

the    Motion    to      Clarify,    Nelson        was   an    absolute    ghost    on    the

docket sheet from at least as early as the October 14, 1993

dismissal order until 2011 after ORL entered the confession of

judgment.        In      fact,   the    only        “parties”     who    appear    to    have

participated in the hearing regarding the issues raised in the

Motion to Clarify were RTC and the U.S. Attorney’s Office on

behalf of the Marshal’s Service—not Nelson.                        (See J.A. 56 ¶ 10;

id. at 57 ¶ 15.)

       By reading in a silo-like fashion RTC’s separate prayers

for relief in the Motion to Clarify, the majority misses the big

picture,      and     its    “good     reason”       for      treating    the    Motion   to

Clarify as a motion to reopen is gainsaid by the very document

that it relies upon.

                                              37
                                              III.

       The     majority      makes      two    other    arguments      to    support      its

position; but like the arguments before them, these arguments

similarly fall short and incomplete of the jurisdictional goal

line.

                                               1.

       First is the notion that “[t]he procedural posture of the

case after December 31, 1993 mirrors what happened earlier in

the case,” ante at 14, specifically, what happened ninety-three

days    after      the     district       court      entered     its     July    13,     1993

dismissal order.             That order stated: “IT IS ORDERED that this

action is hereby dismissed without costs and without prejudice

to the right, upon good cause shown within ninety (90) days, to

reopen the action is settlement is not consummated.”                              Although

the district court did reopen the case after expiration of the

ninety-day period, a plain reading of that order reveals that it

was not the reopening of the case that must have occurred within

ninety days, but rather the showing of good cause to reopen.                               In

the    March    15,      2013    order,       the    district    court    recounted       the

relevant facts surrounding the reopening of the case after the

July 13, 1993 dismissal order as follows: “The case was closed

on    that   same     day,      but   the     parties    later    returned       to    court.

Although     the    docket       does    not    reflect    the    date      on   which    the



                                               38
parties asked for the case to be reopened, the court reopened

the case 93 days after the July 13, 1993 Order.” 2            (J.A. 416.)

     Accordingly,   because   we   do    not   know   when,    exactly,     the

parties came to the court to reopen the case, the majority’s

statement that the district court “nonetheless reopened the case

93 days after the case was closed,” ante at 14, is nothing but a

red herring—a straw-man that, even when set ablaze, sheds no

light on the relevant issue.            At best for the majority, the

circumstances surrounding the district court’s handling of the

July 13, 1993 dismissal and reopening of the case are neutral. 3


     2
       I note that the March 15, 2013 order is the exact same
order wherein the district court stated that, subsequent to the
October 14, 1993 order, “Nobody moved to reopen the case before
the December 31, 1993 deadline.” (J.A. 417.) Thus, inasmuch as
the district court recited that “the parties asked for the case
to be reopened” after the July 13, 1993 order, but on the very
next page of that order recited that the parties did not “move[]
to reopen the case before the December 31, 1993 deadline,” the
court was perfectly capable of determining what constituted a
motion/request to reopen.   This only further pulls the rug out
from under the majority’s supposition that the district court
somehow treated the Motion to Clarify as a motion to reopen.
     3
       But in reading Part II.A.1 of the majority opinion as a
whole, the notion that “[t]he procedural posture of the case
after December 31, 1993 mirrors what happened earlier in the
case” based on “nearly identical” language in the dismissal
orders, ante at 14, only further undermines the “conditional
dismissal” theory. If the language in the two dismissal orders
is “nearly identical,” one would expect that the effect of that
language would also be nearly identical. Under the “conditional
dismissal” theory, the case was at no point in time ever
actually closed/dismissed pursuant to the July 13, 1993 order
because dismissal was conditioned upon settlement and the
parties did not settle. Yet, the district court thought that it
needed to reopen the case and did so on October 14, 1993, due to
(Continued)
                                   39
                               2.

     Finally, the majority attempts to make hay by putting a

spin on the absence of a clerical order of dismissal following

the October 14, 1993 order (whereas the clerk entered such an

order subsequent to the July 13, 1993 dismissal order).      This

argument invokes the classic tale of the dog that did not bark

in the night-time.   See generally Arthur Conan Doyle, The Silver

Blaze, in The Memoirs of Sherlock Holmes (1892).     To wit, the

conspicuous absence of any subsequent dismissal order indicates

that the October 14, 1993 order was intended to serve as such.

The order’s effect, therefore, is best understood by looking at

what order did not follow.   (It is surprising that the majority

would even attempt to make this absent-order argument in view of

its due deference to the district court’s autonomy and handling

of its own docket.    See ante at 14.   For indeed, the district

court itself noted that when it reopened the case after the

July 13, 1993 dismissal order, the parties’ request that it do

so is “not reflect[ed]” on the docket sheet. (J.A. 416.))

     Regardless, I agree with the majority that the October 14,

1993 order was not a “final” order at the time that it was



“the parties [being] unable to complete the documentation of the
settlement.” (See J.A. 50.) But if the case was never actually
closed/dismissed, why would the district court have thought that
the case needed to be “reopened”?


                               40
entered; but it became final on January 1, 1994, when the period

for reopening the case expired without settlement and without

either party moving to reopen.                 At this point, the district

court    became    divested   of   subject          matter    jurisdiction.         The

majority’s contrary result above runs afoul of well-settled law

and, regrettably, all but creates an undesirable circuit split.

      In Berke v. Bloch, a case with facts and dismissal language

very similar to the facts and dismissal language in this case,

the   district     court   dismissed      a    lawsuit       “‘without    costs     and

without prejudice to the right, upon good cause shown, within

60 days,    to    reopen    the    action       if    the     settlement      is    not

consummated.’”       242   F.3d    131,       134    (3d     Cir.    2001).      “[T]he

[plaintiffs]      undertook   no   action      within        the    prescribed     sixty

(60) day period following entry of the District Court’s order.”

Id.     The Third Circuit, in concluding that the order dismissing

the case constituted a final order, stated the following:

      When a District Court dismisses a case pending
      settlement, and grants the [plaintiffs] leave to re-
      file within a set period of time, the order cannot be
      considered final for the purposes of appeal on the
      date   it   was   entered.    Typically,   conditional
      dismissals based on imminent settlement include a
      fixed period of time to reach settlement terms. While
      these types of dismissals may keep the parties’ “feet
      to the fire” by giving them a deadline to conclude
      settlement, they cannot be considered final. Instead,
      if terms are reached, and/or the plaintiff makes no
      attempt to re-open the litigation, the order ripens
      into a final, appealable order upon the expiration of
      the fixed time period.


                                       41
Id. at 135 (emphasis added); see Longo v. First Nat’l Mortg.

Sources, 523 F. App’x 875, 877–78 (3d Cir. 2013) (applying the

rule from Berke and stating the following: “In its May 9 Order,

the District Court dismissed the case ‘without prejudice to the

right,    upon    good      cause    shown       within        60    days,     to    reopen    the

action if the settlement is not consummated.’                                Thus, the May 9

Order    .   .   .     bec[a]me      final       .    .    .    60     days    after    it     was

entered[.]”).

       The result is no different in this case.                              Jung v. K. & D.

Mining Co., 356 U.S. 335, 337 (1958) (per curiam) (holding that

a   court    order     “dismissing         ‘th[e]         cause      of    action’”—not        the

clerk’s subsequent entry of a judgment—is what “constituted the

‘final judgment’ in the case,” even though the Rule 58 clock to

appeal    did    not     start      to    tick       until      separate       entry    of    that

judgment     (second        internal      quotation            marks      added));     see    also

Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir. 1994)

(holding     that      an   “Administrative            Closing         Order    [giving]       the

parties sixty days to reopen the proceedings . . . . mature[d]

into    final    judgment      and,       [because]       no     action       [was]    taken    to

resolve the case, satisfie[d] the separate document requirement

of Rule 58” (citation omitted)).

                                                IV.

       In sum, Kokkonen controls: the convoluted procedural and

substantive      morass       that       this    twenty-year-old              case    became    is

                                                42
partly   the   product   of   the   failure   by   the    parties   and   the

district court to notice that, when all was said and done, what

the court was being asked to do in granting judgment on the

confession was simply enforcing the settlement agreement.                 The

dismissal order respecting that agreement did not “embody” the

agreement or “retain jurisdiction” over it.              Kokkonen, 511 U.S.

at 381–82.     Moreover, because the Motion to Clarify did not seek

to reopen the case, as a careful review of that motion and the

subsequent related order plainly reveals, the October 14, 1993

order matured into a final dismissal order on January 1, 1994.

     With great condemnation for Nelson’s unlawful and evasive

behavior, and with sympathy for ORL’s struggles to obtain the

money that it appears to be rightfully owed, I simply do not

think that the district court had subject matter jurisdiction.

I therefore would not reach the merits of ORL’s claim and, very

respectfully, dissent to Part II.A.1 of the majority’s opinion.




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