Claremont Flock Corp. v. Alm

United States Court of Appeals
For the First Circuit

No. 01-1569
CLAREMONT FLOCK CORPORATION,

Plaintiff, Appellee,

v.

KJELL K. ALM,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]

Before

Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.

Lawrence A. Vogelman, with whom Shuchman & Krause-Elmslie,
P.L.L.C., was on brief for appellant.
Charles R. Powell, III, with whom Michael J. Kenison and
Devine, Millimet, & Branch Professional Association, were on brief
for appellee.

February 25, 2002
 LIPEZ, Circuit Judge. Appellant Kjell Alm appeals the

district court's denial of his motion filed pursuant to Fed. R.

Civ. P. 60(b)(6) to vacate a default judgment. We affirm.

I.

Appellee Claremont Flock Corporation filed a complaint in

federal district court against Alm on September 29, 1998. That

complaint, along with a summons, was personally served on Alm in
New Orleans, Louisiana in October 1998. On November 16, 1998, Alm,

acting pro se, filed an "Answer" in the form of a letter to the

court. In that letter, Alm disputed certain allegations contained
in the complaint, asserted that he was not the proper party to the
suit, and claimed that, under the choice of law provision in the
disputed contract, the laws of Sweden governed the interpretation

of the contract. Alm also provided the court with his mailing
address in Gothenberg, Sweden. Accordingly, numerous court orders,
letters from Claremont Flock's counsel, and discovery requests were

sent to Alm at that address. Alm failed to respond to any of these
orders or requests.
On May 5, 1999, the district court issued a discovery
order directing Alm to answer interrogatories, respond to document

requests and submit to a deposition within thirty days or risk a

default judgment. Again, Alm failed to respond, at which point

Claremont Flock moved for entry of a default judgment, which the

district court granted on July 15, 1999. On September 1, 1999, the

court entered a final judgment against Alm, awarding $250,000 in

damages to Claremont Flock and issuing a permanent injunction

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against Alm, enjoining him from engaging in certain commercial

activity without the express written consent of Claremont Flock.

On November 13, 2000, over fourteen months after the

court entered judgment, Alm -- now finally having retained counsel

-- filed a Rule 60(b)(6) motion to vacate the judgment against him,

claiming that at some unspecified time after he submitted his

answer to the court, he became estranged from his wife and lost

access to the residential post office box in Gothenberg, Sweden.

He claimed that he did not receive any of the court orders,

motions, correspondence, or discovery requests mailed to that
address, and that he understood his November 1998 letter to the

court to have ended the litigation. The district court denied
Alm's motion. This appeal followed.

II.

District courts have wide discretion in deciding Rule
60(b) motions, and we review such determinations for abuse of

discretion. See Teamsters, Chauffeurs, Warehouseman and Helpers

Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st
Cir. 1992). We find no abuse of discretion here.
Rule 60(b) contains six subsections, the first five of

which set forth specific grounds for relief.1 Subsections (1)

1
Fed. R. Civ. P. 60(b) provides:

On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by
due diligence could not have been discovered in time to

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through (3) carry a one-year time limit, while motions for relief

under subsections (4) through (6) need only be made "within a

reasonable time." See Cotto v. United States, 993 F.2d 274, 278

(1st Cir. 1993). Subsection (6) is designed as a catch-all, and

relief under that subsection "is only appropriate where subsections

(1) through (5) do not apply." United States v. Baus, 834 F.2d

1114, 1121 (1st Cir. 1987). "To justify relief under subsection

(6), a party must show extraordinary circumstances suggesting that

the party is faultless in the delay." Pioneer Inv. Servs. Co. v.

Brunswick Assoc., 507 U.S. 380, 393 (1993) (internal quotation

marks omitted). If a party is "partly to blame," Rule 60(b)(6)

relief is not available to that party; instead, "relief must be

sought within one year under subsection (1) and the party's neglect
must be excusable." Id.

Here, in seeking Rule 60(b)(6) relief, Alm characterizes

himself as a foreigner unfamiliar with the American legal system
and, on that basis, attempts to absolve himself of any fault for

his failure to respond to court orders, motions, correspondence and
discovery requests. He claims that he believed that his letter

move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered
or taken.

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answer to the court put an end to the litigation, and therefore he

was not surprised or concerned when he did not receive any further

correspondence or notices regarding the court dispute.
The district court found, however, that "Alm was a

sophisticated international businessman who chose not to contact

American counsel after he was served with the complaint."
Furthermore, it is undisputed that Alm made no efforts to confirm

that the lawsuit had been dismissed or withdrawn or to notify

counsel or the court of an alternative mailing address. Nor is

there any indication that Alm attempted to compel his wife to

forward or preserve his mail. See Cotto, 993 F.2d at 278 ("[I]n

our adversary system of justice, each litigant remains under an

abiding duty to take the legal steps necessary to protect his or
her own interests."). Accordingly, the district court determined

that the default judgment was "attributable to [Alm's] own

negligence and not to extraordinary circumstances beyond the
party's control." The district court did not abuse its discretion

in drawing this inference of fault from the evidence in the record.

Accordingly, Alm cannot avail himself of Rule 60(b)(6)

relief but rather is limited to seeking relief from judgment on

grounds of excusable neglect pursuant to Rule 60(b)(1). See

Pioneer, 507 U.S. at 393 (holding that party must be "faultless" to

avail itself of Rule 60(b)(6) relief). Any such request on that

basis, however, would be untimely. As discussed supra, a litigant

may move for Rule 60(b)(1) relief only within one year of the entry

of judgment. See Fed. R. Civ. P. 60(b) ("The motion shall be made

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within a reasonable time, and for reasons (1), (2), and (3) not

more than one year after the judgment, order, or proceeding was

entered or taken."). Here, Alm filed his motion for relief over
fourteen months after the court entered final judgment against him;

thus any claim to Rule 60(b)(1) relief is time-barred.

For the reasons above, we conclude that the district
court did not abuse its discretion in denying Alm's Rule 60(b)

motion to vacate the default judgment entered against him.

Affirmed.

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