The case of the day is Coney Island Auto Parts Unlimited, Inc. v. Burton (S. Ct. 2026). This case wasn’t on my radar, and it’s not an obvious Letters Blogatory case, but the outcome of the case is quite important for Letters Blogatory readers, and it requires revisiting some of the advice I’ve given. (Just a reminder: when I talk about strategies etc. on the blog, it’s not legal advice! Speak with your lawyer!)

FRCP 60(b)(4) allows a party to move to set aside a void judgment. Under FRCP 60(c)(1), “a motion under Rule 60(b) must be made within a reasonable time.” But the orthodox rule, according to Wright & Miller, according to several appellate decisions, and according to me, was that the rule about timing did not apply to motions to set aside a void judgment. Why? Well, because a void judgment is void. Void. The crack in the teacup opens a lane to the land of the dead.

And yet in today’s decision the Court rejected the orthodox rule unanimously. Unanimously! And its reasoning is bracing and consistent with the spirit of the Rules, which at their best are about less metaphysics and more merits. It dispatches the argument about the cold, dark abyss of space without ado:

Even if the passage of time cannot cure voidness, the same principle holds true for most legal errors. Nevertheless, statutes and rules routinely limit the time during which a party can seek relief from a judgment infected by error. Therefore, a party in Coney Island’s position would need to show that some principle of law, such as the Due Process Clause, gives a party the right to allege voidness at any time.

The more serious argument, and the intersection with our world, is that the judgment might be void because the defendant was never served with process and might not know about the judgment. But the Court observes that that possibility is dealt with by the rule itself, which allows a “reasonable” time. “In the context of a default judgment, it might be reasonable for a defendant not to seek relief before learning about a plaintiff’s attempted enforcement.”¹

What are the strategic implications? Up to now, the sensible thing for a foreign defendant to do when a US plaintiff has attempted to serve process on it in an impermissible way, is nothing. “Run silent, run deep,” as I wrote in February 2012. Suppose you’re a Chinese defendant served with the summons by email. You could hire an American lawyer to move to dismiss. But what does that get you? Whether you win or lose, the plaintiff’s likely next move is (or at least was, until recently) to ask for permission to serve process on the lawyer under FRCP 4(f)(3). And then you’re worse off than you were before. You’re better off waiting to see whether anything bad happens, and if it does, you can always move to set aside the void judgment then.

Two things have changed. First, as I noted in a recent post, the case for serving process on a foreign defendant by email sent to the foreign defendant’s US lawyer is weaker than it’s ever been, notwithstanding the many district court decisions approving the practice. But second, in light of today’s decision, you can’t even wait and see. Once you know about the case, even if the service was bad, you have to be concerned about waiting more than a reasonable time to set the judgment aside.

In short: if you read any of my “run silent, run deep” posts (there are several), be sure to take this new word from the Supreme Court into consideration when deciding what to do.

1. I leave to the side two other interesting points: the Court rejected the idea that there was a clear historical practice supporting the view that there is no time limit for setting aside void judgments, and it left open the possibility that there might be ways to obtain relief other than a Rule 60(b) motion, for example, an action seeking relief from the judgment, see FRCP 60(d)(1). ↩︎