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Allocating the Burden of Proof in Rule 60(b)(4) Motions to Vacate
a Default Judgment for Lack of Jurisdiction

Ariel Waldman

Suppose a plaintiff files a civil complaint in federal court. Suppose further that the defendant learns of the action but believes that the court lacks personal jurisdiction. The defendant may choose to appear in the action and challenge the court's jurisdiction. Alternatively, the defendant may choose to risk a default judgment. A civil defendant might wait to contest a judgment until after the entry of default, or until the plaintiff obtains and seeks to register a default judgment, for a number of reasons. The defendant may believe that settlement is possible, may prefer to postpone the expenditure of her time and money until a later date, or may wish to contest jurisdiction in a forum closer to her assets. Since the plaintiff may move for the court to attach these assets, this wait and challenge approach may allow a defendant to appear in a forum closer to home, where the defendant has a more prominent presence and better access to choice legal counsel than she does in the forum of the issuing court. Federal Rule of Civil Procedure 60(b)(4) allows a defendant to attack a default judgment by subsequently challenging the personal jurisdiction of the court that issued the judgment.

Which party should bear the burden of proof in such a motion? Rule 60 is silent on the issue and the other federal rules provide no explicit answers. However, the controlling burden of proof rule is often critical: in over 90 percent of the reported cases where courts have ruled on Rule 60(b)(4) motions to void a default judgment for lack of personal jurisdiction, the party bearing the burden of proof has lost. The allocation of the burden of proof may drive a case's final disposition. This question of how the burden of proof should be allocated in Rule 60(b)(4) motions advanced on personal jurisdiction grounds has caused sharp and, to date, unresolved conflict among the lower federal courts. The Supreme Court and most of the federal appellate courts have not squarely addressed this narrow but important question. Further, despite the lack of a clear rule for allocating the burden of proof in Rule 60(b)(4) motions based on personal jurisdiction, scholars have overlooked the issue.

This Comment attempts to fill in that analytical gap. Part I defines the elements of a personal jurisdiction challenge and discusses these challenges and the burden of proof in the context of Rules 12, 55, and 60. Part II analyzes the competing approaches courts have employed to allocate the burden of proof for 60(b)(4) motions advanced on personal jurisdiction grounds. Part III argues that courts should adopt a rule placing the burden on the movant but should condition the remedy to mitigate any resulting inequities.

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