10-2854 Philos Technologies, Inc., v. Philos & D, Inc.

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Civil Procedure
Default judgment; motions to vacate

A party may, nearly a year after the entry of a default judgment, move to vacate the judgment on the ground that it was void for a lack of personal jurisdiction.

“[T]he defendants’ letter to the district court did not constitute an appearance or submit the defendants to the district court’s jurisdiction. Although the individual defendants did request the dismissal of the action in their letter, and although ‘a motion to dismiss is normally considered to constitute an appearance,’ Sun Bank of Ocala, 874 F.2d at 277, citing Mason v. Utley, 259 F.2d 484, 485 (9th Cir. 1958), a more sound reading of the defendants’ letter counsels against construing their letter as such a motion. Such a ‘motion,’ after all, would have been denied as plainly deficient on its face. The letter was nothing more than an informal but respectful attempt to explain why Jae-Hee Park and Don-Hee Park would not appear in any judicial proceedings conducted in Illinois. Nothing about that letter indicated the defendants’ intent to defend the suit against them or any intent to submit to the district court’s jurisdiction. The defendants’ Rule 60(b)(4) motion to vacate the default judgment was timely and should have been considered on its merits.”

Reversed and Remanded.

10-2854 Philos Technologies, Inc., v. Philos & D, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Hibbler, J., Hamilton, J.

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