In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2854
P HILOS T ECHNOLOGIES, INC.,
Plaintiff-Appellee,
v.
P HILOS & D, INC., et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 cv 7240—William J. Hibbler, Judge.
A RGUED A PRIL 7, 2011—D ECIDED JUNE 15, 2011
Before C UDAHY, M ANION, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. This appeal calls on us to
determine whether a party may, nearly a year after the
entry of a default judgment, move to vacate the judg-
ment on the ground that it was void for a lack of personal
jurisdiction. The district court concluded that the delay
rendered untimely defendants’ motion to vacate and
denied the motion without reaching its merits. Because
the defendants did not appear in the district court before
2 No. 10-2854
entry of judgment, and because they are entitled to one
full opportunity to litigate the jurisdictional issue, we
reverse and remand.
I. The Facts
On December 18, 2008, plaintiff-appellee Philos Tech-
nologies, Inc., an Illinois corporation based in Wheeling,
Illinois, filed a single-count complaint in the federal
district court for the Northern District of Illinois. Philos
Technologies asserted federal jurisdiction on the basis
of diversity of citizenship and asserted a claim for con-
version under Illinois law against defendants Don-
Hee Park, Jae-Hee Park, and Philos & D, Inc., a South
Korean corporation based in Gwangju, South Korea.
According to the complaint, Philos Technologies had
provided the defendants with equipment used to
strengthen materials used in the metalworking in-
dustry, but never received the compensation for that
equipment previously agreed upon by the parties.
Although the defendants were all successfully served
with process in January 2009, they neither appeared in
court nor filed an answer to the complaint. Instead, Don-
Hee Park and Jae-Hee Park sent an informal pro se “Re-
sponse Letter” to the district court in which they
claimed that they had “no involvement . . . whatsoever
with Philos Technologies,” but instead had a business
relationship with a Korean company named PLS Tech
Korea. Any agreement for equipment with PLS Tech
Korea had been terminated in August 2008, they ex-
plained, because of “differences of understanding.” For
No. 10-2854 3
these reasons, the defendants “request[ed] dismissal of
the lawsuit” against them.
Following the receipt of this letter, over four months
passed without any further communication from the
defendants. Finally, the district court granted Philos
Technologies’ motion for an entry of a default against
the defendants on June 30, 2009. After a hearing on the
issue of damages on July 21, 2009, the court entered a
final judgment in favor of Philos Technologies totaling
$2,916,332.
Nearly a year later, on June 14, 2010, counsel for the
defendants entered an appearance and moved to vacate
the default judgment under Federal Rule of Civil Proce-
dure 60(b)(4). In their motion, the defendants argued
that they never transacted business in Illinois and that
they never entered into any contract with Philos Tech-
nologies, but instead contracted with PLS Tech Korea
for the equipment at issue. They also argued that, even
if they had been aware that PLS Tech Korea would
obtain that equipment from Philos Technologies, that
mere knowledge was not sufficient to support personal
jurisdiction in Illinois. Moreover, Jae-Hee Park denied
ever visiting Illinois, and Don-Hee Park claimed to have
visited Illinois only after Philos & D had entered into
its agreement with PLS Tech Korea. The defendants
requested that the court vacate the default judgment
as void for a lack of personal jurisdiction and dismiss
the complaint under Rule 12(b)(2).
The district court denied the defendants’ motion to
vacate. The court did so without reaching the merits of
4 No. 10-2854
defendants’ personal jurisdiction objection, explaining
somewhat cryptically that it saw “no legal justification
for this matter coming before the Court well after
judgment has been entered and all parties have had an
opportunity to fully litigate the issues.” The district
court added that, because it had received “sufficient
and appropriate justification to exercise personal juris-
diction” at the time it granted default judgment against
the defendants, it saw no reason to second-guess its
original ruling on that issue. This appeal followed.
II. Analysis
Under Rule 60(b)(4) of the Federal Rules of Civil Proce-
dure, a district court may relieve a party from a final
judgment if the judgment is void for lack of personal
jurisdiction over that party. Planet Corp. v. Sullivan,
702 F.2d 123, 125 n.2 (7th Cir. 1983). On appeal, the par-
ties’ dispute centers on two issues: (1) the appro-
priate standard of review for the denial of defendants’
motion under that rule; and (2) whether defendants’
motion was untimely. We address each issue in turn.
A. Standard of Review
As to the first issue, the defendants argue that we
should review the denial of their Rule 60(b)(4) motion
de novo because that motion asserted that the district
court was without jurisdiction to enter judgment against
them. In response, Philos Technologies argues that
the proper standard of review is for an abuse of discre-
No. 10-2854 5
tion because the defendants were properly served with
process in this action.
We review the denial of most motions for relief under
Rule 60(b) only for an abuse of discretion. E.g., Eskridge
v. Cook County, 577 F.3d 806, 808 (7th Cir. 2009) (reviewing
denial of Rule 60(b) relief from plaintiff’s own voluntary
but mistaken dismissal of their case), citing Easley v.
Kirmsee, 382 F.3d 693, 697 (7th Cir. 2004) (affirming denial
of Rule 60(b) relief for mistake, inadvertence, surprise,
or excusable neglect). The standard of review for denial
of a Rule 60(b)(4) motion is less deferential, however.
As we explained in Blaney v. West, district courts have
“little leeway” under Rule 60(b)(4): “Once a district court
decides that the underlying judgment is void, the trial
judge has no discretion and must grant the appropri-
ate Rule 60(b) relief,” and it is “a per se abuse of discre-
tion to deny a Rule 60(b)(4) motion when the trial court
has no jurisdiction over the action.” 209 F.3d 1027, 1031
(7th Cir. 2000); accord, be2 LLC v. Ivanov, ___ F.3d ___,
2011 WL 1565490, at *2 (7th Cir. April 27, 2011) (reversing
denial of relief); Relational, LLC v. Hodges, 627 F.3d 668,
671 (7th Cir. 2010) (affirming denial of relief). A judgment
entered against a defendant over whom the court had
no jurisdiction is void, and no court has the discretion
to refuse to vacate that judgment once it recognizes its
lack of jurisdiction. See Textile Banking Co. v. Rentschler,
657 F.2d 844, 850 (7th Cir. 1981).
The fact that a defendant was properly served with
process does not give a district court discretion to deny
an otherwise-meritorious Rule 60(b)(4) motion. We see
6 No. 10-2854
no reason to treat a lack of jurisdiction caused by the
improper service of process any differently from a lack
of jurisdiction caused by the defendant’s lack of suf-
ficient minimum contacts with the forum.1 A court “with-
out personal jurisdiction of the defendant” is wholly
“without power to proceed to an adjudication” binding
on that defendant, regardless of the specific reason
such jurisdiction is lacking. See Employers Reinsurance
Corp. v. Bryant, 299 U.S. 374, 381 (1937). A court has no
discretion to deny a Rule 60(b)(4) motion to vacate a
judgment entered against a defendant over whom the
court lacks personal jurisdiction, regardless of the
specific reason such jurisdiction is lacking.2
1
Philos Technologies argues that this distinction is important,
citing our decision in Relational, LLC v. Hodges, 627 F.3d 668
(7th Cir. 2010). That case did not suggest that a different
standard of review would apply depending on the precise
basis for the asserted lack of jurisdiction, but applied the
more stringent standard of review that applies to all
Rule 60(b)(4) motions. See id. at 671 (noting that it is a per se
abuse of discretion to deny a motion to vacate a void judg-
ment and that “a judgment is void as to any party who
was not adequately served”).
2
A federal court exercising diversity jurisdiction has per-
sonal jurisdiction only where a court of the state in which it
sits would have such jurisdiction. E.g., RAR, Inc. v. Turner
Diesel, Ltd., 107 F.3d 1272, 1275 (7th Cir. 1997). Illinois
extends personal jurisdiction to the limits allowed by the
United States Constitution, so the state and federal standards
are congruent here. See, e.g., Citadel Group Ltd. v. Washington
Regional Medical Center, 536 F.3d 757, 760-61 (7th Cir. 2008).
No. 10-2854 7
B. Timeliness
In an attempt to avoid this more stringent standard of
review, Philos Technologies argues that the defendants’
Rule 60(b)(4) motion was merely an untimely attempt
to bring a direct appeal from the default judgment. The
defendants respond that Rule 60(b)(4) motions can be
brought at any time after judgment. As best we can tell
from the record, the district court agreed with Philos
Technologies that the defendants’ Rule 60(b)(4) motion
was untimely because it was filed nearly a year after the
entry of the default judgment against them.
This conclusion was erroneous. It failed to recognize a
defendant’s ability to decide whether to contest personal
jurisdiction directly or in a post-judgment collateral
proceeding. A defendant who believes that a court is
without jurisdiction over his or her person has two
distinct options. First, the defendant can appear in
court and immediately object to the court’s personal
jurisdiction. Second, the defendant can “ignore the
judicial proceedings, risk a default judgment, and then
challenge that judgment on jurisdictional grounds in a
collateral proceeding,” either in the court that issued the
judgment or in a court where the plaintiff seeks to
enforce that judgment. Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982);
see Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S.
522, 525 (1931) (“If, in the absence of appearance, the
court had proceeded to judgment . . . respondent could
have raised and tried out the issue in the present [collat-
eral] action, because it would never have had its day
in court with respect to jurisdiction.”).
8 No. 10-2854
Each option carries its own risks and benefits. If the
defendant opts to appear and contest jurisdiction, the
defendant may take advantage of the fact that the
plaintiff bears the burden of proving that the court has
jurisdiction over that defendant. See Bally Export Corp. v.
Balicar, Ltd., 804 F.2d 398, 401 (7th Cir. 1986) (“Normally
it is well established that the plaintiff must prove juris-
diction exists once it is challenged by the defendant.”).
By appearing, however, the defendant in essence agrees
that the forum court has jurisdiction to decide its juris-
diction, and the defendant will be subject to discovery,
as well as any orders issued during the course of the
litigation. See, e.g., Insurance Corp. of Ireland, 456 U.S. at 706-
07 (affirming discovery sanction treating jurisdiction
as established after defendant refused to provide dis-
covery relevant to jurisdictional defense). The defendant
may reassert the objection via direct appeal, e.g., Illinois
v. Hemi Group LLC, 622 F.3d 754 (7th Cir. 2010), but
because the defendant has appeared and taken ad-
vantage of the opportunity to contest personal jurisdic-
tion in the district court, res judicata precludes that
defendant from renewing that objection in a collateral
proceeding. See Insurance Corp. of Ireland, 456 U.S. at 706;
Stoll v. Gottlieb, 305 U.S. 165, 172 (1938) (“After a
Federal court has decided the question of the jurisdic-
tion over the parties as a contested issue, the court in
which the plea of res judicata is made has not the power
to inquire again into that jurisdictional fact.”); Bell v.
Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000) (“A
collateral attack on a final judgment is not a permissible
substitute for appealing the judgment within the time . . .
No. 10-2854 9
for appealing the judgment of a federal district
court.”).3 An unhappy defendant’s only right to further
review of the personal jurisdiction issue is through a
direct appeal from the underlying judgment, within
the time limits set by the rules of appellate procedure. See
Bell, 214 F.3d at 802 (dismissing appeal from Rule 60(b)
motion on the ground that the appeal was actually
an untimely challenge to the underlying judgment).
But if the defendant chooses to ignore the court pro-
ceedings entirely, the defendant need not appear in
court or participate in discovery. The defendant also
need not challenge the default judgment on direct
appeal, but may instead bring a collateral challenge to
the judgment under Rule 60(b)(4). See Insurance Corp. of
3
Philos Technologies reads Bell so broadly as to say that a
defendant, having chosen not to challenge the court’s jurisdic-
tion prior to the entry of judgment, may not raise that issue in
a collateral proceeding. While that may be true of a litigant
who has appeared in the district court, the same cannot be
said of a litigant who chose to ignore the proceedings and
challenge the court’s jurisdiction in a collateral attack. See
Insurance Corp. of Ireland, 456 U.S. at 706; Baldwin, 283 U.S. at
525 (“If, in the absence of appearance, the court had proceeded to
judgment . . . respondent could have raised and tried out
the issue in the present [collateral] action, because it would
never have had its day in court with respect to jurisdiction.”)
(emphasis added). We see nothing in Bell to the contrary. As
we explain below, we cannot conclude that the defendants
ever appeared in the district court to assert their jurisdic-
tional objection.
10 No. 10-2854
Ireland, 456 U.S. at 706. Although a defendant who
asserts a jurisdictional defense in a collateral pro-
ceeding bears the burden of proving that the court lacked
jurisdiction over his or her person, see Bally Export
Corp., 804 F.2d at 401 (“If the defendant, after receiving
notice, chooses to let the case go to a default judgment,
the defendant must then shoulder the burden of proof
when the defendant decides to contest jurisdiction in
a postjudgment rule 60(b)(4) motion.”), the defendant
benefits from the fact that the collateral challenge to
jurisdiction can be brought at any time. E.g., Taft v.
Donellan Jerome, Inc., 407 F.2d 807, 808 (7th Cir. 1969); see
Pacurar v. Hernly, 611 F.2d 179, 181 (7th Cir. 1979) (noting
that, in regard to motions under Rule 60(b)(4), “the ‘rea-
sonable time’ limitation in [Rule 60(c)(1)] ‘must gen-
erally mean no time limit,’ at least absent exceptional
circumstances”), quoting 7 Moore’s Federal Practice,
¶ 60.25(4), at 315 (2d ed. 1979). And, of course, the defen-
dant may reassert a jurisdictional objection in a timely
appeal from the denial of the Rule 60(b)(4) motion.
Swaim v. Moltan Co., 73 F.3d 711, 718 (7th Cir. 1996).
Whichever choice the defendant makes—raise the
defense in the initial proceeding, or raise it on col-
lateral review—the choice must be made quickly. While
a party “may challenge a default judgment as void for
lack of personal jurisdiction at any time,” that rule “does
not preserve in perpetuity a party’s claim regarding
personal jurisdiction, regardless of any strategy it pur-
sues in the district court.” e360 Insight v. The Spamhaus
Project, 500 F.3d 594, 599 (7th Cir. 2007). A defendant
cannot switch strategies midstream—if the defendant
No. 10-2854 11
appears and challenges the court’s personal jurisdiction
but then abandons that defense, the defendant may
not later reassert that defense in a collateral challenge to
the judgment under Rule 60(b)(4) or otherwise. See id.
at 600 (affirming denial of Rule 60(b)(4) motion where
party consistently asserted a lack of personal jurisdic-
tion early in the proceedings but then affirmatively aban-
doned that defense); cf. Rice v. Nova Biomedical Corp.,
38 F.3d 909, 914 (7th Cir. 1994) (voicing concern that
defendants will use personal jurisdiction strategically,
raising or waiving that defense depending on their per-
ceived chances of prevailing on the merits).
The pivotal question here, then, is whether any of the
defendants appeared to challenge the district court’s
jurisdiction. If they did, then their motion to vacate
was improper and we would need to dismiss this ap-
peal. See Stoll, 305 U.S. at 172; Bell, 214 F.3d at 802. But
if the defendants did not appear to challenge the
district court’s jurisdiction, then they could bring their
Rule 60(b)(4) motion at any time, and the denial of that
motion on timeliness grounds was erroneous. See
Insurance Corp. of Ireland, 456 U.S. at 706; Baldwin, 283 U.S.
at 525.
This issue turns on the significance of the defendants’
pro se letter requesting dismissal of this action. Philos
Technologies argues that the defendants, through that
letter, effectively appeared and submitted themselves to
the district court’s jurisdiction. This argument is flawed.
First, a corporation, being nothing more than “a con-
venient name for a complex web of contracts among
12 No. 10-2854
managers, workers, and suppliers of equity and debt
capital,” is legally incapable of appearing in court unless
represented by counsel—“corporations must appear by
counsel or not at all.” Scandia Down Corp. v. Euroquilt, Inc.,
772 F.2d 1423, 1427 (7th Cir. 1985); accord, United States v.
Hagerman, 549 F.3d 536, 537 (7th Cir. 2008) (extending rule
to limited liability companies). Defendant Philos & D, a
corporation, could not have appeared pro se, whether
by means of a letter to the court or otherwise.
As for the individual defendants, we conclude that
their pro se letter did not constitute an appearance sub-
mitting them to that court’s jurisdiction. As a general
matter, an appearance “requires a presentation or sub-
mission to the court where the lawsuit is pending.” North
Central Illinois Laborers’ Dist. Council v. S.J. Groves &
Sons Co., 842 F.2d 164, 168 (7th Cir. 1988). While an ap-
pearance does not necessarily “require the filing of re-
sponsive papers or actual in-court efforts,” it does
require, at minimum, that the defendant engage in some
sort of conduct clearly indicating an intent to defend the
suit. Id. at 169 (collecting authorities); see, e.g., Sun Bank
of Ocala v. Pelican Homestead & Savings Ass’n, 874 F.2d
274, 276 (5th Cir. 1989) (noting that an appearance is
made by “ ‘acts on [a] defendant’s part which . . . give
plaintiff a clear indication of defendant’s intention to
contest the claim’ ”), quoting 6 Moore’s Federal Practice
¶ 55.05[3], p. 55-27. As our opinion in S.J. Groves demon-
strates, such conduct must be responsive to the suit filed
in federal court. See 842 F.2d at 169 (finding that
defendant never appeared, given that defendant “took
no action, formal or informal, from the time [suit was
No. 10-2854 13
filed] in federal court until after the default judgment
was entered”).
In determining whether the individual defendants’
letter to the district court clearly indicated their intent
to defend this suit, we are especially mindful of the
fact that this letter was filed not by counsel but by
two individuals acting pro se. It has long been estab-
lished that pro se filings are held to “less stringent stan-
dards than formal pleadings drafted by lawyers,” Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see Estelle
v. Gamble, 429 U.S. 97, 106 (1976), with the primary goal
being to give pro se filings “fair and meaningful” con-
sideration. Ricketts v. Midwest Nat’l Bank, 874 F.2d
1177, 1183 (7th Cir. 1989) (quotation omitted). “This
heightened judicial solicitude is justified in light of the
difficulties of the pro se litigant in mastering the pro-
cedural and substantive requirements of the legal struc-
ture.” Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.
1982). This solicitude is particularly appropriate when,
as here, a court is asked to construe a pro se litigant’s
filing in such a manner as to deny that litigant the op-
portunity to present a jurisdictional defense.4
4
This concern distinguishes this case from a number of deci-
sions that, in order to avoid a default and to decide cases
on their merits, showed more willingness to treat informal
conduct as an appearance under Fed. R. Civ. P. 55. E.g., Sun Bank
of Ocala, 874 F.2d at 277 (treating a pro se “motion to dismiss”
mailed to clerk of court as an appearance requiring notice
prior to entry of a default judgment under Rule 55).
14 No. 10-2854
With these concerns in mind, we conclude that the
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 con-
sidered 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 defen-
dants’ 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.
C. The Merits of the Defendants’ Rule 60(b)(4) Motion
Because the district court was under the erroneous
impression that the defendants’ Rule 60(b)(4) motion
was untimely, it never considered the arguments or
evidence presented in support of that motion and never
made any findings of fact for us to review. The parties
have submitted conflicting affidavits and documentary
evidence on facts central to whether the defendants
No. 10-2854 15
had sufficient minimum contacts with Illinois to support
jurisdiction over them in the district court. These factual
issues must be resolved by the district court. “Often
personal jurisdiction is closely linked to the nature,
and merit, of the claim being asserted, but this does not
mean that the judge will just take the plaintiff’s word
about what happened.” Szabo v. Bridgeport Machines, Inc.,
249 F.3d 672, 676 (7th Cir. 2001) (citation omitted); accord,
e.g., Hyatt International Corp. v. Coco, 302 F.3d 707, 713
(7th Cir. 2002) (if personal jurisdiction depends on dis-
puted facts, court must hold evidentiary hearing to
resolve them). We express no view on those factual
issues, but the defendants are entitled to one full oppor-
tunity to litigate them.
Accordingly, we R EVERSE the denial of the defendants’
Rule 60(b)(4) motion and R EMAND for full considera-
tion of that motion on its merits.
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