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Case number 17-7144, Jacks Pacific E-Appellant versus the Atacific LLC at L. Mr. Honey for the appellant, Mr. Hine for Athlete Workers Credit Co.

[00:00:18] Speaker 00:
LLC.

[00:00:23] Speaker 01:
Ron.

[00:00:23] Speaker 01:
Good morning, Your Honor.

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Let me begin, if I might, by... I don't know if I need to repeat that I'm found out that I'm owning for the appellant, since the clerk presided that.

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Let me begin by addressing one of the court's questions, if I might.

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And that is, this is a very, very bizarre, peculiar case.

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We have not a... No one's ever introduced a case like that before.

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I'm sorry?

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No one has ever introduced their own case in this way.

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It is so, because we have, on the other side of the...

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aisle here, so to speak, is a appellee who was not a party, who was not a non-party, but was, as they've described themselves, as an interested person in a non-party and the discovery dispute.

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So this is as collateral a matter as one could ever have in terms of a collateral attack on a extant final judgment in a federal court.

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And so in answer to Your Honor's question, I think the law with respect to collateral attack is stated in footnote seven to the practical concepts case, but is in a state of unclarity as far as I understand it.

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And I don't think it needs to be determined by this honorable court because the base issue is so simple and clear in our view.

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Just back up procedural, I was trying to understand a little bit about the party's relationship here.

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So you filed in this district to obtain discovery about these assets that you thought were being hidden by Acasvec or its member Medici, which was it?

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It's whoever we could collect from in the first instance to understand Akersvik's assets, but depending on whether they were fraudulent transfers, et cetera, wherever that might take us.

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But in the first instance, clearly, it was to determine the assets of Akersvik.

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What is Fortress's relationship to all of this?

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So Fortress, we subpoenaed one of the officers, Mr. Cunningham, who's in the court now, of Akuslek, who had been an officer at Pertinent Times.

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And in doing that, we requested documents from him.

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And when we, he produced certain documents, but refused to produce the document which was an agreement between Fortress and one of the Akuslek entities on the ground that Fortress had an interest in it.

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And that was when they alerted Fortress to this discovery issue.

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We made the motion to compel the production of that document before the debate.

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And then this entire proceeding spun out from there, if you will.

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So Rule 60B is supposed to give relief to a party.

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But if the other side, no one on the other side was actually a party to this judgment, then

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What basis was there for a 60-D motion at all?

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I think that is a very, very good question, Your Honor.

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There was no motion for intervention here.

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It is, when I said bizarre, I said it for a particular reason, not only in how remote they are, but also in how they came to participate in this case.

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It is rather odd that they simply filed papers with this notice of question about jurisdiction and without a motion for intervention and then proceeded to be heard by the judge at all stages leading to where we are today.

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So that is one of the questions and one of the aspects of the issue that the court raised about collateral attack is that they are in fact

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both not a party and they are seeking to have greater rights than a party would have, and that's what this judgment below embodies.

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And Mr. Cunningham, whom you wanted to depose, was a former officer of AKSVAC?

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We did depose him, Your Honor.

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Right, but he was a former officer of Akusvek or a former officer of one of the members of Akusvek?

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No, of Akusvek.

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Of Akusvek.

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And is now, is he now with Fortress or?

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No, he, no, he is, as far as I understand it, Your Honor, is a lawyer practicing in the district.

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Okay.

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All right, so he's not affiliated with any...

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party to this judgment either?

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No, I think at this point, no.

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Again, at a point in time back, he was affiliated with AKUSVAC, which is the reason we expected and understood that he would have relevant knowledge for purposes of the subpoena, which is why the subpoena issued.

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But again, just to carry that out, it is very strange that

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in this posture that they're seeking to have greater rights than a party would have under 60B4.

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Can I ask a question about moodness, which is one of the issues we flag?

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So the Central District of California vacated the underlying default judgment that you're seeking to enforce.

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Again, and this is a part I don't understand.

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Let me address that whole issue of the second issue.

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I don't understand how there could be any issue of Lucas res judicata because one, there's not a full and fair opportunity to litigate.

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There was no opportunity.

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It was a summary in chambers order.

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It was wholly derivative of the... But all those things may get to a subsequent question, but just as an antecedent matter, if the judgment that sought to be enforced is just no longer in effect,

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then there's nothing to enforce, right?

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No, I think that the short answer is that judgment will presumably, if you reverse the court, the Ninth Circle will presumably reverse that judgment since that judgment was completely derivative of the district.

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Sure, that deals with subsequent events that could come to pass.

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I'm just saying, as things stand,

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Supposed, for example, that the judgment had been vacated and an appeal hadn't been taken.

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Again, that's, Your Honor, exactly why we took the appeal to avoid... No, no, just suppose.

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Just suppose that an appeal hadn't been taken.

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Then I take it then that our proceeding, you'd agree, would be moot?

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I know that you have your... No, I don't disagree at all, Your Honor, because I think the point is, again, that proceeding, whatever it was, was completely derivative.

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And as I understand it, once there's a judgment,

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In the court below, we have an absolute right under the federal rules to take an appeal to this court.

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And you can't have a circular... You don't have an absolute right to take an appeal if a case has become moot.

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Again, but it can't become moot because that's circular logic.

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Then you're never getting an opportunity to have an appellate right with respect to the underlying decision, if that would be the case, and that would be an absurdity.

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You always have a right to... I don't understand what you're saying.

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Because if the other court vacates the judgment, then there's nothing to enforce.

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There may be some problem with the vacator.

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But doesn't it, and then you might be able to say that because it's on appeal, this proceeding hasn't become moot.

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I'm just trying to establish the predicate point that if there's no judgment left to be enforced, then there's nothing to be done here.

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Again, I think that you can't have a subsequent act undoing your right to appeal because that would mean that you were never having a right to appeal in that scenario, which would be contrary to the way things are done.

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So I don't understand the predicate of it.

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Well, I think what Judge Srinivasan is saying is that it's not that the district court's order here, that vacature didn't moot your case.

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If you were just appealing the district court's vacature here, you would get to review judgments.

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There'd be no problem that you're concerned about.

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The concern for mootness is that a third party, not our district court and not us, but a third party, a third entity,

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has taken a step to get rid of the judgment.

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Imagine this hypothetical.

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If the district court in California had said, wow, I read that opinion really persuasive.

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I agree.

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I should have never done this and vacated it, all on its own.

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Again, Your Honor, the clear law is that when you have a decision in the district court, you appeal it to the circuit of district court.

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So the appeal, clearly in this instance, is from the decision of the district court in DC, and therefore to this court.

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And in your hypothetical, the, again,

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you would ultimately get to a motion for reconsideration because this court had reversed the district court.

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But the point would be that the subsequent action cannot interfere with them, particularly because it's not an independent action.

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It's solely derivative.

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It was not a notice.

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It doesn't purport to be a judgment of anything other than a rubber stamping of what the court did below here, which is what we're on the bill.

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So your argument is

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that the district court in this case ordered the vacation of the case in California.

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That's what the district court said, ordered that that default judgment would be vacated.

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The district court in California then said, accordingly vacated.

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So it's as a direct consequence, causation, of what Judge Bates did in this case,

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And if we reverse what Judge Bates did in this case, yeah, it's possible that this record in California will do something different, but it is likely that because it did it in the first place on account of what our district court did, that it will reverse itself and give you back your judgment, correct?

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That's my understanding.

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And that's why it's not moved.

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Correct.

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It satisfies all requirements of Article 3.

[00:10:15] Speaker 01:
Yes, and again, I think it would be a Kafkaesque result if there were not the case because effectively it would mean that a court here, by purporting to act in connection with a

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colleague court in another district as to which it does not have authority is not a supervisory court could prevent you from appealing a final judge of the court here that would be an absurdity your honor I respectfully submit and that's not what the law provides if I may

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I'll just briefly finish up with the point about the res judicata.

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Again, none of the criteria, whether under Montana or Smalls, this Court's decision to force 71F186 for res judicata, are satisfied and, indeed, partly out of

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Prudential concern about that possibility was why we went to the Ninth Circuit and obtained the stay there, and clearly that court understood the situation and is stated in view of this court's responsibility to determine this matter.

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Coming back to the merits, if you will, the point here is that Judge Bates

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did the opposite of what he indicated that he should do under the law.

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And that's, again, part of the oddity of what here.

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If your honors look at pages 93 of the record, the court said, quote, that is not futile from my perspective.

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That allows me to have factual support for the decision that I'm going to render, end quote.

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And that is the point here, is that despite having clearly laid out at 92 and 93 during the hearing the parameters of his decision, he then went and violated the law and did exactly the opposite of what he'd set as his roadmap and issued a decision without any factual support for a finding.

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You're on to a question about whether it's arguably within the jurisdiction, is that what you're arguing about?

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Is it correct, Your Honor?

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Whether you look under Rule 60 or before, or whether you look under Espinoza, the only basis for a collateral attack, assuming that a collateral attack is allowed notwithstanding the Supreme Court judgment in the 1880s, and particularly a collateral attack is allowed in circumstances this of being so far removed from the underlying dispute.

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But putting that issue aside,

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The point is that the – you need to have an actually void judgment.

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That is, you need to have a fact or a legal posture in which the underlying court had no jurisdiction.

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And there is 0.0 facts to support such a conclusion of law.

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And that's the essential error that Judge Bates made here.

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And again – We're three minutes over.

[00:13:13] Speaker 06:
Let me ask if anybody on the bench has questions.

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Thank you.

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This case should never have been brought in the federal system.

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At this point, it's clear to everybody that there was no diversity between these parties.

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Are you a party to this litigation?

[00:13:48] Speaker 05:
Your Honor, we're not.

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And you asked the question earlier, what are we doing here?

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Trust me, I woke up this morning and asked myself the same question.

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It's an odd posture to be in because my client was someone that's affected by this judgment.

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that has been registered in the district of DC, and then they went to enforce it.

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And it wasn't until there was an enforcement going on, enforcement action, that anyone ever contested what had happened in the original enforcement.

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What's the enforcement against you at this point?

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The enforcement affected my client.

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It was directly against the individuals, but they were trying to get documents.

[00:14:24] Speaker 05:
I understand, but what legal process was issued to you?

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Your honor, there was no legal process issued to me.

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So why are you here?

[00:14:33] Speaker 06:
A lot of people in the audience who might be interested in this case and would like to come up and argue about it, but we don't normally allow that.

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Why are you here?

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I guess I drew the black bean.

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I drew the black bean to be argued again because the concern was that the enforcement of this judgment was going to require the production of documents that my client considers to be confidential and proprietary.

[00:15:00] Speaker 05:
Is there a subpoena for the document?

[00:15:03] Speaker 05:
There was a subpoena that Jax was arguing reached the document, yes, and it was a subpoena that was issued to the individual.

[00:15:10] Speaker 05:
The individual had

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possession of that as a result of his work that he had done.

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And is the individual resisting the subpoena?

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Yes.

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Normally what would happen is the individual would come in and say quash the subpoena.

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Was there a

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I'm not saying there wasn't.

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Was there a motion to quash?

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There was a motion to compel that had been filed.

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Yes, I understand.

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I understand why he's here.

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The question is, why are you here?

[00:15:44] Speaker 05:
I don't remember if there was a motion to compel to be completely candid, Your Honor.

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There was definitely the motion to quash.

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I'm here because we wanted to protect my client's information, and it wasn't until that point that anyone ever looked at any of these jurisdiction issues.

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Did you move to dismiss the judgment as without jurisdiction?

[00:16:09] Speaker 05:
We did not move, Your Honor.

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What we did was, you know, pursuant to the court's obligation to look at jurisdiction at every stage of the case, we simply notified the court that we believed that there was an issue there.

[00:16:20] Speaker 05:
From that point... Amicus?

[00:16:23] Speaker 06:
I'm still having a little difficulty figuring out how you're here.

[00:16:25] Speaker 05:
Well, I don't fit into an easy bubble there, Judge.

[00:16:28] Speaker 06:
Why are you arguing?

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Is there a lawyer for somebody who is here?

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There is, yes.

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And has he given you his argument?

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Is that the idea?

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Are you making the argument on his behalf?

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Essentially, yes, Your Honor.

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So you are in his shoes for purposes of this case?

[00:16:44] Speaker 05:
I think that's a fair statement.

[00:16:45] Speaker 02:
You're representing Mr. Cunningham.

[00:16:47] Speaker 05:
I'm not representing Mr. Cunningham, but I was tasked with arguing today.

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I'm not representing AKSVAC either, Your Honor.

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So you make representations or arguments to us.

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You're making them on behalf of Fortress.

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On behalf of Fortress.

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And nobody else.

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Yes, Your Honor.

[00:17:03] Speaker 02:
OK.

[00:17:04] Speaker 06:
So how do we get- I'm going with his description of the case at the very beginning.

[00:17:07] Speaker 06:
It is very odd.

[00:17:09] Speaker 02:
Yeah.

[00:17:09] Speaker 02:
So how did 60B come into this?

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Because 60B is a motion that's brought by a party to a judgment.

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And if the only person here that's a party to the judgment is the one who doesn't want 60B, then I don't know why we have-

[00:17:22] Speaker 02:
how we ended up in 60B land to begin with.

[00:17:25] Speaker 05:
Yeah, and Your Honor, it's a great question.

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And I think that we have a little bit of a round peg in a square hole of 60B.

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It doesn't fit entirely, but that's what Judge Bates interpreted it as being most analogous to.

[00:17:38] Speaker 02:
I guess if there's problems, then you deny enforcement of subpoenas or you dismiss actions and don't do the discovery or the enforcement of the judgment.

[00:17:47] Speaker 02:
There's an awful lot of things one does before one gets to vacating the judgment of another court.

[00:17:51] Speaker 05:
You know, Your Honor, I agree.

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There were lots of interim steps that could have been taken.

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This was the step that Judge Bates chose to do.

[00:17:58] Speaker 02:
I mean, as best I can tell, you guys just did a notice of lack of subject matter jurisdiction.

[00:18:04] Speaker 02:
That's correct, Your Honor.

[00:18:05] Speaker 02:
Yes.

[00:18:05] Speaker 02:
Did you do briefing on the issue?

[00:18:07] Speaker 02:
We did.

[00:18:09] Speaker 02:
Okay.

[00:18:09] Speaker 02:
And the brief was as...

[00:18:11] Speaker 02:
Yes.

[00:18:12] Speaker 02:
Do you have possession of this document, or I thought that the document was in the possession of Mr. Cunningham.

[00:18:20] Speaker 05:
It is in the possession of Mr. Cunningham, but it was our possession that it shouldn't have been.

[00:18:24] Speaker 05:
It was a document that was actually in Acasvec.

[00:18:26] Speaker 05:
It was a contract between the parent company of Acasvec, the Medici entity,

[00:18:31] Speaker 05:
and my client, Fortress, that should never have been in his possession.

[00:18:36] Speaker 02:
Well, that's a fight between you guys.

[00:18:38] Speaker 05:
Sorry?

[00:18:38] Speaker 02:
That's a fight between you guys, but that's got nothing to do with this litigation.

[00:18:41] Speaker 05:
It is, yes.

[00:18:43] Speaker 05:
Okay.

[00:18:45] Speaker 05:
I'm here.

[00:18:50] Speaker 06:
We appreciate your candor.

[00:18:52] Speaker 06:
You have 4 minutes and 42 seconds to say whatever else you want to say.

[00:18:55] Speaker 05:
Well, certainly.

[00:18:56] Speaker 05:
So, I'll try and address some of the direct questions that you have raised with us.

[00:19:02] Speaker 05:
Judge Serena Boston, you went directly to mootness and talked about the issue of mootness.

[00:19:06] Speaker 05:
When you raised that issue first,

[00:19:08] Speaker 05:
I started looking at some of these cases on mootness and case and controversy.

[00:19:13] Speaker 05:
Is there a live controversy?

[00:19:15] Speaker 05:
Originally, I thought, yeah, this may be moot, but then I remembered that what we're dealing with is a judgment that has been registered under 28,

[00:19:24] Speaker 05:
USC 1963 and started looking at some of those cases.

[00:19:28] Speaker 05:
And the case law that's developed under 1963 seems to suggest that even when an original judgment becomes unenforceable, the clone judgment, the registered judgment, still has a life of its own.

[00:19:43] Speaker 05:
Usually that comes up in circumstances where you're dealing with things like limitations that prevents you from being able to enforce the original judgment, but you might be able to enforce the registered judgment.

[00:19:55] Speaker 05:
When I started reading those cases, Judge, I came across the In re Patco case.

[00:20:00] Speaker 05:
which was a decision from this court, Judge at the time, Ginsburg, who was talking about some of the issues relating to 1963 and actually cited section 16 of the Restatement Second of Judgments.

[00:20:16] Speaker 05:
that talks about what happens when you have a dependent judgment and the original judgment is vacated or nullified for some reason.

[00:20:24] Speaker 05:
And what that section says is that it's not automatically, the dependent judgment isn't automatically nullified as well, but it probably should be.

[00:20:32] Speaker 05:
In which case are you citing talking about that?

[00:20:35] Speaker 05:
The in-rate PACCO.

[00:20:36] Speaker 05:
And is that in your brief?

[00:20:37] Speaker 05:
It is not.

[00:20:38] Speaker 06:
This is one that I found based on the... Okay, it's very nice that you're here to talk to us.

[00:20:44] Speaker 06:
But you can't talk about cases that you haven't cited and given the other side a chance to read or given the court a chance to read.

[00:20:51] Speaker 06:
So if you have got some other case that you have cited that's going to support your proposition, we'll hear that.

[00:20:56] Speaker 05:
Certainly, Your Honor.

[00:20:57] Speaker 05:
It was a question that Your Honor had raised and I was trying to address.

[00:21:00] Speaker 03:
I thought you were responding to the court's order to look into it.

[00:21:03] Speaker 03:
I was.

[00:21:03] Speaker 03:
Yeah.

[00:21:04] Speaker 05:
Yeah.

[00:21:04] Speaker 05:
So that's fine.

[00:21:06] Speaker 05:
Really, it's the restatement.

[00:21:07] Speaker 05:
that you look at, and the cases cited in the restatement, particularly in the reporter's note to comment C of the restatement, cites a couple of Supreme Court cases that also deal with these issues, and essentially it's the Butler versus Eaton case at 141 U.S.

[00:21:26] Speaker 05:
244 1891 that in essence says that if you end up in a situation like this where you have

[00:21:37] Speaker 05:
the parties in front of you, you can do what's right to take care of the case.

[00:21:41] Speaker 05:
So the clone case is not dead, it's on life support, it's not moot, you can address the issues.

[00:21:48] Speaker 05:
To address the court's other issue about the Des Moines Navigation case, the Des Moines Navigation case is a classic collateral attack case where you have

[00:21:58] Speaker 05:
judgment in case A, case B, and they're trying to use it to preclude an issue in case B. What Des Moines says is you can't do that if it's been a contested case.

[00:22:10] Speaker 02:
No, but if you read, if you read, read footnote seven within the context of the practical concepts decision, right?

[00:22:17] Speaker 02:
That was a decision about when 60B can be used to vacate a judgment on the basis of an error

[00:22:26] Speaker 02:
as to subject or alleged error as to subject matter jurisdiction.

[00:22:30] Speaker 02:
And what footnote seven said was everything we just said in the context of a foreign sovereign immunity case or subject matter jurisdiction, it's a different game altogether when diversity jurisdiction is at stake.

[00:22:47] Speaker 02:
And as for that, there's ancient and revered precedent that says,

[00:22:53] Speaker 02:
As to that, the judgment isn't null, an old-fashioned form of void for purposes of 6GB.

[00:23:02] Speaker 05:
Yes.

[00:23:02] Speaker 05:
And when you look at that, it says that that was a contested case.

[00:23:07] Speaker 05:
When you have a contested case... What was a contested case?

[00:23:10] Speaker 05:
Des Moines was a contested case.

[00:23:11] Speaker 02:
Not the Honeys case that started it.

[00:23:14] Speaker 02:
What the footnote started with is a First Circuit case in Honeys that was a default judgment.

[00:23:19] Speaker 02:
Yes, they say they raised this case, Honeys.

[00:23:22] Speaker 02:
That was a default judgment involving diversity.

[00:23:26] Speaker 02:
And as to that, and then that's how they got to Des Moines.

[00:23:30] Speaker 02:
And Honeys itself, besides even more old Supreme Court cases, they say since its earliest days of the Supreme Court, they've said it has a diversity jurisdiction.

[00:23:41] Speaker 02:
Because diversity doesn't, you don't have a right

[00:23:44] Speaker 02:
diversity jurisdiction is not a right to avoid court or court processes.

[00:23:49] Speaker 02:
It's just a question of which court you're in, state or federal.

[00:23:52] Speaker 05:
That's what the footnote says.

[00:23:53] Speaker 05:
And Your Honor, perhaps I misread the footnote seven, but I thought it said that the lawyer Donovan was contending that despite his full awareness of and recorded appearance in his brother-in-law's suit, he could sit out

[00:24:04] Speaker 05:
And then, in the event of an adverse federal judgment spring, the plea that he should have been sent to the local court.

[00:24:09] Speaker 02:
Yes, yes, because all he did was enter an appearance, which doesn't mean he litigated anything.

[00:24:14] Speaker 02:
Right?

[00:24:15] Speaker 02:
So they say, the footnote says a default judgment was entered in Honeys.

[00:24:18] Speaker 02:
And Honeys itself says that, if you read it.

[00:24:20] Speaker 05:
A different, again, there was at least an appearance.

[00:24:24] Speaker 02:
Why would that be relevant?

[00:24:25] Speaker 02:
All that means is he got service of process.

[00:24:28] Speaker 05:
Well, Your Honor, I would suggest that it would be relevant because he had service of process and the opportunity to appear.

[00:24:33] Speaker 02:
Service of process wasn't disputed in California.

[00:24:35] Speaker 02:
No one suggested that there was a failure of process or an absence of personal jurisdiction or anything like that.

[00:24:40] Speaker 05:
But importantly, Judge, there was no appearance.

[00:24:44] Speaker 05:
No one ever showed up to even raise this issue.

[00:24:46] Speaker 02:
Why does that matter?

[00:24:47] Speaker 02:
Why does that matter?

[00:24:48] Speaker 02:
She gives no reason, the footnote gives no reason on that.

[00:24:51] Speaker 05:
It doesn't, but if you look back a little bit earlier in the practical concepts decision, Judge Ginsburg cites to section 65.

[00:25:00] Speaker 05:
of the restatement second of judgments, and that's the section that deals with default judgments and whether or not a default judgment will be preclusive.

[00:25:11] Speaker 05:
And in fact, that section says that it's not different from section 12 of the restatement second of judgments.

[00:25:23] Speaker 05:
that deals with contested matters.

[00:25:25] Speaker 05:
And, you know, actually, if you look at the way that Judge Ginsburg has dealt with this issue since she's been on the Supreme Court, she's actually equated Des Moines and Section 12, cited them.

[00:25:46] Speaker 03:
Well, Des Moines wasn't a default judgment case.

[00:25:48] Speaker 03:
That seems clear.

[00:25:49] Speaker 03:
I guess the question becomes whether, as a consequence of footnote 7 and practical concepts, what could otherwise potentially be a distinction between default judgments and contested judgments ceases to be because footnote 7 treats with a default judgment.

[00:26:05] Speaker 05:
Yes, and again, I think the distinction there, Your Honor, is that in both in Des Moines and in the Honeyus case, there was at least there was a conscious appearance and a decision not to not to do anything more.

[00:26:22] Speaker 05:
There was never any appearance.

[00:26:23] Speaker 05:
No one ever even saw this case raised any issue until it was being enforced.

[00:26:28] Speaker 05:
Was Des Moines a default judgment case?

[00:26:32] Speaker 05:
That was not a default judgment case.

[00:26:35] Speaker 05:
The original one was not.

[00:26:36] Speaker 05:
It was a true collateral attack.

[00:26:39] Speaker 03:
But Honius was a default judgment case, but for the wrinkle that, the potential wrinkle that you identified, which is that somebody made an appearance.

[00:26:46] Speaker 03:
Yes, Your Honor.

[00:26:47] Speaker 06:
And the argument about somebody making an appearance is a statement in quite a number of cases that a person can decide to not, to take his chances,

[00:27:00] Speaker 06:
to let it if he thinks there's no jurisdiction, and then he takes the risk that he'll be stuck later if he doesn't challenge it in another location.

[00:27:11] Speaker 06:
And that's what it says in section 65 of the restatement.

[00:27:15] Speaker 06:
When the person knew about the action but perceived that the court lacked territorial or subject matter jurisdiction, he's given the right to ignore the proceeding at his own risk, but to suffer no detriment if his assessment proves correct.

[00:27:29] Speaker 06:
The right to challenge jurisdiction makes him an instrument for confining judicial authority to his prescribed limits.

[00:27:36] Speaker 06:
The fact that a challenge may be asserted after judgment gives it additional weight and effect.

[00:27:41] Speaker 06:
In any case, no public service is protected by protecting the judgment.

[00:27:45] Speaker 06:
That's section 65.

[00:27:46] Speaker 06:
And the section 12, which is cited in the cases, says, when a court has rendered a judgment in a contested action, the judgment precludes litigation.

[00:27:58] Speaker 06:
but then says, concerning relief from a default judgment on the ground of lack of subject matter jurisdiction, see section 65.

[00:28:05] Speaker 06:
So that's how you say it works, and that's why the fact that the person entered an appearance could make a difference.

[00:28:18] Speaker 06:
If he hadn't entered an appearance,

[00:28:20] Speaker 06:
That would be a different matter.

[00:28:21] Speaker 06:
He would be taking the risk.

[00:28:22] Speaker 06:
Once you enter an appearance, you're stuck with the result.

[00:28:26] Speaker 06:
Yes, Your Honor.

[00:28:27] Speaker 03:
And no one entered an appearance here.

[00:28:30] Speaker 03:
Otherwise, there's a distinction between default judgments and contested judgments, is the way you perceive it.

[00:28:33] Speaker 03:
Correct.

[00:28:34] Speaker 05:
Yes, Your Honor.

[00:28:37] Speaker 05:
I notice I'm five minutes over now.

[00:28:39] Speaker 06:
Any other questions?

[00:28:42] Speaker 06:
No.

[00:28:42] Speaker 06:
Thank you.

[00:28:42] Speaker 05:
All right.

[00:28:43] Speaker 06:
Thank you.

[00:28:51] Speaker 06:
Can I just ask all those questions I asked about why he's here?

[00:28:56] Speaker 06:
Were any of those raised by you below or in the papers?

[00:29:00] Speaker 01:
Your Honor, frankly not, because if the frank answer is after that notice, we expected a motion for intervention, which in my experience is what a non-party does if they're interested, as you said, in being heard in a court.

[00:29:17] Speaker 01:
Much to our surprise, we got back some document, and I'm not remembering it exactly now from the court, indicating that this was all going to be heard.

[00:29:26] Speaker 01:
We thought that was some kind of either subversive right of intervention, but in any event, we did not feel that

[00:29:39] Speaker 01:
It made sense to do that.

[00:29:41] Speaker 01:
And again, very frankly, Your Honor, the background of this is that this party fortress has caused an enormous amount of expense for no purpose that we can identify or no constructive purpose.

[00:29:54] Speaker 01:
Because as the court said on page 92 of the transcript, and as Mr. Hein recognized,

[00:30:00] Speaker 01:
It is a pregnancy issue.

[00:30:02] Speaker 01:
There either is diversity or there is not.

[00:30:06] Speaker 01:
The only party in this courtroom or elsewhere that has an answer to that question, or at least should have an answer, is sitting right here, the non-party.

[00:30:15] Speaker 01:
And the fact of the matter is that we thought that they would come in one way or the other and either say, we didn't have a basis, as I'd asked him a number of times to say one way or another to show that there is diversity,

[00:30:28] Speaker 01:
or that there's not.

[00:30:29] Speaker 01:
And instead, we've got this sequential participation without ever giving any factoid that would indicate that there's not diversity.

[00:30:39] Speaker 06:
I thought there was a declaration indicating lack of computers.

[00:30:43] Speaker 01:
It was a declaration.

[00:30:47] Speaker 01:
You need to put that, Your Honor, I respectfully submit in quotes.

[00:30:50] Speaker 01:
It was from somebody without any knowledge, not speaking to the time that's relevant in question, not giving any...

[00:30:56] Speaker 01:
of anything that would be of evidentiary significance.

[00:31:00] Speaker 01:
There's not a name given, there's not a history or any factoid that would be associated with a evidentiary submission such as you would have on a diversity jurisdiction evidentiary hearing.

[00:31:12] Speaker 01:
that would be pertinent to the issue.

[00:31:14] Speaker 01:
And so I respectfully submit that that declaration was exactly the opposite of what the judge had sought there of a tell us your knowledge.

[00:31:23] Speaker 01:
And instead we got a non-declaration rather than a declaration.

[00:31:29] Speaker 01:
And as the judge pointed out in his opinion in saying that he did no idea about whether there was diversity jurisdiction, that the result of that

[00:31:37] Speaker 01:
was that the judge was left in exactly the posture he'd been in before the declaration, that he had no new factual information that bore on the issue of jurisdiction.

[00:31:48] Speaker 02:
Who first raised 60B as a procedural mechanism here?

[00:31:52] Speaker 02:
Did one of the parties invoke it, or did the district court do it on its own?

[00:31:56] Speaker 01:
Again, Your Honor, the sequence of events was, as counsel recited, this notice of objection.

[00:32:03] Speaker 01:
Then there was the motion practice that ensued with respect to that notice of objection, the judge scheduled to the hearing.

[00:32:11] Speaker 02:
Motion for what?

[00:32:13] Speaker 02:
What was the motion for?

[00:32:14] Speaker 01:
Our motion was to compel, and the judge carved out this

[00:32:20] Speaker 01:
proceeding within the motion to compel to deal with this notice of objection that Fortress had filed.

[00:32:27] Speaker 02:
Okay, so nobody filed a Rule 60B motion.

[00:32:31] Speaker 01:
That's correct, Your Honor.

[00:32:33] Speaker 01:
And again, there would be absolutely no basis for it because there's nobody that I'm aware of within Rule 11 strictures who could say that the judgment was void, which is what you need to say under 60B-4 to have a declaration indicating that, and that's never happened here, Your Honor.

[00:32:48] Speaker 01:
If there are no more questions, Your Honor, I'll rest with that.