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 Page 1
84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)

170AXVII Judgment
170AXVII(B) By Default
United States Court of Appeals, 170AXVII(B)1 In General
Fifth Circuit. 170Ak2415 k. Grounds. Most Cited
NEW YORK LIFE INSURANCE COMPANY, Cases
Plaintiff-Appellee, “Default” is when defendant has failed to plead or
v. otherwise respond to complaint within required
Alvin J. BROWN, Defendant-Appellant, time period.
v.
Leslie A. BROWN, Defendant-Appellee. [2] Federal Civil Procedure 170A 2417
NEW YORK LIFE INSURANCE COMPANY,
Plaintiff-Appellee, 170A Federal Civil Procedure
v. 170AXVII Judgment
Alvin J. BROWN, Defendant, 170AXVII(B) By Default
and 170AXVII(B)1 In General
Leslie A. Brown, Defendant-Appellant. 170Ak2417 k. Entry of Default. Most
Nos. 95-30455, 95-30786. Cited Cases
“Entry of default” is what clerk enters when default
May 15, 1996. is established by affidavit or otherwise. Fed.Rules
Civ.Proc.Rule 55(a), 28 U.S.C.A.
Stakeholder-insurer filed interpleader action against
two claimants seeking to establish ownership of life [3] Federal Civil Procedure 170A 2418.1
insurance policy. After summary judgment was
entered against defaulted claimant, the United 170A Federal Civil Procedure
States District Court for the Middle District of 170AXVII Judgment
Louisiana, A.J. McNamara, J., denied defaulting 170AXVII(B) By Default
claimant's motion to vacate. Appeals followed. The 170AXVII(B)1 In General
Court of Appeals, DeMoss, Circuit Judge, held that: 170Ak2418 Proceedings for Judgment
(1) defaulted claimant appeared in the action by 170Ak2418.1 k. In General. Most
participating in telephone conference before magis- Cited Cases
trate judge and making telephone call to plaintiff's “Default judgment” is judgment based on defend-
counsel; (2) district court's attempt to serve defaul- ant's default that plaintiff may apply for after de-
ted claimant with copy of the summary judgment fault has been entered.
motion at address that was not his last-known ad-
[4] Federal Civil Procedure 170A 563.1
dress did not provide proper notice; and (3) the ab-
sence of notice was denial of due process rendering 170A Federal Civil Procedure
judgment void. 170AIV Appearance
170Ak563 Acts Constituting Appearance in
Vacated and remanded.
General
West Headnotes 170Ak563.1 k. In General. Most Cited
Cases
[1] Federal Civil Procedure 170A 2415 Defendant's two acts of participating in telephone
conference before magistrate judge and of making
170A Federal Civil Procedure telephone call to plaintiff's counsel informing of in-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)
tent to contest suit each constituted “appearance” in
action, so as to entitle defendant to service of all
papers including motion for summary judgment that
was made and granted after default had been
entered against him. Fed.Rules Civ.Proc.Rules 5,
5(a), 56, 28 U.S.C.A.
[5] Federal Courts 170B 643
170B Federal Courts
170BVIII Courts of Appeals
170BVIII(D) Presentation and Reservation in
Lower Court of Grounds of Review
170BVIII(D)2 Objections and Exceptions
170Bk639 Motions Presenting Objec-
tions
170Bk643 k. Sufficiency and Scope
of Motion; Necessity of Ruling on Objection or
Motion. Most Cited Cases
Defendant's motion to vacate summary judgment
entered against him following entry of default was
adequate to allow district court to rule on issue of
whether he had appeared in the action so as to be
entitled to service of all papers filed, and thus that
issue was preserved for appeal, where the motion to
vacate informed court that defendant was complain-
ing of lack of notice before the granting of sum-
mary judgment, notwithstanding that he could have
raised the issue more specifically.
[6] Federal Courts 170B 617
170B Federal Courts
170BVIII Courts of Appeals
170BVIII(D) Presentation and Reservation in
Lower Court of Grounds of Review
170BVIII(D)1 Issues and Questions in
Lower Court
170Bk617 k. Sufficiency of Presenta-
tion of Questions. Most Cited Cases
Litigant who desires to preserve argument for ap-
peal must press and not merely intimate the argu-
ment during proceedings before district court; if ar-
gument is not raised to such degree that district
court has opportunity to rule on it, Court of Appeals
will not address it on appeal.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
[7] Federal Courts 170B 617
170B Federal Courts
170BVIII Courts of Appeals
170BVIII(D) Presentation and Reservation in
Lower Court of Grounds of Review
170BVIII(D)1 Issues and Questions in
Lower Court
170Bk617 k. Sufficiency of Presenta-
tion of Questions. Most Cited Cases
Issues may be raised for first time in postjudgment
motions, for purposes of determining whether they
have been preserved for appeal.
[8] Federal Civil Procedure 170A 561
170A Federal Civil Procedure
170AIV Appearance
170Ak561 k. In General. Most Cited Cases
Federal Civil Procedure 170A 564
170A Federal Civil Procedure
170AIV Appearance
170Ak563 Acts Constituting Appearance in
General
170Ak564 k. Informal Acts. Most Cited
Cases
Party's “appearance” in action, such as entitles
party to service of all papers filed, involves some
presentation or submission to court and is indica-
tion in some way of intent to pursue defense; it is
not confined to physical appearances in court or ac-
tual filing of document in record, and includes vari-
ety of informal acts responsive to plaintiff's formal
action in court. Fed.Rules Civ.Proc.Rules 5, 5(a),
28 U.S.C.A.
[9] Federal Civil Procedure 170A 665
170A Federal Civil Procedure
170AVII Pleadings and Motions
170AVII(A) Pleadings in General
170Ak665 k. Service. Most Cited Cases
District court's attempt to serve defendant with
copy of codefendant's summary judgment motion at
address it knew or should have known was not de-
 Page 3
84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)

fendant's last-known address did not provide the 170Ak2392 k. Requisites and Validity.
notice of the motion to which defendant was en- Most Cited Cases
titled. Fed.Rules Civ.Proc.Rules 5, 5(b), 28
U.S.C.A. Federal Civil Procedure 170A 2393

[10] Federal Courts 170B 829 170A Federal Civil Procedure

170AXVII Judgment
170B Federal Courts 170AXVII(A) In General
170BVIII Courts of Appeals 170Ak2393 k. Jurisdiction to Sustain
170BVIII(K) Scope, Standards, and Extent Judgment. Most Cited Cases
170BVIII(K)4 Discretion of Lower Court Judgment is void only if court that rendered it
170Bk829 k. Amendment, Vacation, or lacked jurisdiction of subject matter, or of parties,
Relief from Judgment. Most Cited Cases or if it acted in manner inconsistent with due pro-
Court of Appeals typically reviews for abuse of dis- cess of law; it is not void merely because it is erro-
cretion district court orders denying relief from fi- neous. Fed.Rules Civ.Proc.Rule 60(b)(4), 28
nal judgment. Fed.Rules Civ.Proc.Rule 60(b), 28 U.S.C.A.
U.S.C.A.
[14] Constitutional Law 92 3962
[11] Federal Civil Procedure 170A 2646
92 Constitutional Law
170A Federal Civil Procedure 92XXVII Due Process
170AXVII Judgment 92XXVII(E) Civil Actions and Proceedings
170AXVII(G) Relief from Judgment 92k3961 Jurisdiction and Venue
170Ak2646 k. Discretion of Court. Most 92k3962 k. In General. Most Cited
Cited Cases Cases
District court has no discretion in deciding motion (Formerly 92k305(4.1))
for relief from final judgment based on void judg-
ment, since judgment is either void or it is not. Constitutional Law 92 3974
Fed.Rules Civ.Proc.Rule 60(b)(4), 28 U.S.C.A.
92 Constitutional Law
[12] Federal Civil Procedure 170A 2658 92XXVII Due Process
92XXVII(E) Civil Actions and Proceedings
170A Federal Civil Procedure 92k3973 Process or Other Notice
170AXVII Judgment 92k3974 k. In General. Most Cited
170AXVII(G) Relief from Judgment Cases
170Ak2657 Procedure (Formerly 92k309(1))
170Ak2658 k. Time for Instituting Ordinarily all that due process requires in civil case
Proceedings. Most Cited Cases is proper notice and service of process and court of
There is no time limit on attacking judgment as competent jurisdiction. U.S.C.A. Const.Amend. 5.
void. Fed.Rules Civ.Proc.Rule 60(b)(4), 28
U.S.C.A. [15] Constitutional Law 92 3954

[13] Federal Civil Procedure 170A 2392 92 Constitutional Law

92XXVII Due Process
170A Federal Civil Procedure 92XXVII(E) Civil Actions and Proceedings
170AXVII Judgment 92k3954 k. Course and Conduct of Pro-
170AXVII(A) In General ceedings in General. Most Cited Cases

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Page 4
84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)

(Formerly 92k305(3)) 170Ak2394 k. Process or Notice to Sus-

tain Judgment. Most Cited Cases
Judgment 228 504(1) Absence of notice of impending summary judgment
to defendant who had defaulted but appeared was
228 Judgment
denial of due process rendering the judgment
228XI Collateral Attack
against him void. U.S.C.A. Const.Amend. 5;
228XI(B) Grounds
Fed.Rules Civ.Proc.Rule 60(b)(4), 28 U.S.C.A.
228k500 Errors and Irregularities
*139 Virginia N. Roddy,Eugene R. Preaus, Preaus,
228k504 Irregularities in Proceedings
Roddy & Krebs, New Orleans, LA, for New York
228k504(1) k. In General. Most
Life Ins. Co. in both cases.
Cited Cases
Procedural irregularities during course of civil case, Thomas D. Travis, Howard W. Bushey, Baton
even serious ones, are not due process violations Rouge, LA, for Alvin J. Brown.
subjecting judgment in case to collateral attack.
U.S.C.A. Const.Amend. 5; Fed.Rules Civ.Proc.Rule Ronnie Lynn Leaf, San Mateo, CA, for Leslie A.
60(b)(4), 28 U.S.C.A. Brown in both cases.

[16] Constitutional Law 92 3879

Appeals from the United States District Court for
92 Constitutional Law the Middle District of Louisiana.
92XXVII Due Process
92XXVII(B) Protections Provided and Before SMITH, DUHÉ and DeMOSS, Circuit
Deprivations Prohibited in General Judges.
92k3878 Notice and Hearing
92k3879 k. In General. Most Cited DeMOSS, Circuit Judge:
Cases
(Formerly 92k251.6) This case involves two separate appeals from the
Under our system of justice, opportunity to be same district court case. Both appeals arise out of
heard is the most fundamental due process require- an interpleader action brought by New York Life
ment. U.S.C.A. Const.Amend. 5. Insurance Company (“New York Life”) against
Alvin Brown and his ex-wife Leslie Brown seeking
[17] Constitutional Law 92 4011 to determine who owned several life insurance
policies. The district court (1) found that Leslie
92 Constitutional Law
owned the policies, (2) released New York Life
92XXVII Due Process
from liability and (3) enjoined both Alvin and
92XXVII(E) Civil Actions and Proceedings
Leslie from re-litigating the ownership of the
92k4007 Judgment or Other Determina-
policies in any court. In 95-30455, Alvin appeals
tion
the district court's denial of his motion to vacate the
92k4011 k. Summary Judgment. Most
judgment. He claims that the judgment against him
Cited Cases
is void because it was entered without notice. He
(Formerly 92k315)
argues that even though he had defaulted, he was
Federal Civil Procedure 170A 2394 still entitled to notice before summary judgment
was granted against him. In 95-30786, Leslie ap-
170A Federal Civil Procedure peals the district court order enjoining her from
170AXVII Judgment pursuing the California small claims court actions
170AXVII(A) In General and a California superior court action against New

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)
York Life. We hold that the failure to provide Alvin
notice before the summary judgment denied him
due process of law. Thus, the district court erred in
refusing to vacate the judgment against him. We
vacate 95-30455 and remand for further proceed-
ings. Because the summary judgment was inappro-
priate, we also vacate and remand 95-30786,
Leslie's appeal.
*140 I. BACKGROUND
In March 1971, Plaintiff-Appellee New York Life
issued the first of several whole life insurance
policies to Defendant-Appellant Alvin Brown. The
policy provided for a waiver of premiums if Alvin
became disabled. In January 1972, Alvin was found
to be totally and permanently disabled because of
his war injuries (he lost his left arm in Vietnam), so
the premium waiver clause went into effect. Alvin
married Defendant-Appellee Leslie Brown in Feb-
ruary 1971. In 1980, Alvin and Leslie divorced. On
July 4, 1981, ownership of the policies was trans-
ferred to Leslie. (Alvin argues that his signature on
the change of ownership form was forged).
Leslie claimed ownership of the policies and sought
to have New York Life issue two option policies to
her. New York Life refused, because it was not sure
whether Alvin or Leslie owned the policies. On
April 7, 1992, New York Life filed an interpleader
action under 28 U.S.C. § 1335 in federal district
court in Louisiana, seeking to establish the owner-
ship of the policy. The defendants in the interplead-
er action were Alvin Brown and his ex-wife Leslie
Brown. The federal district court enjoined the de-
fendants from instituting any suits against New
York Life concerning the ownership of the policies.
The next day, April 8, Leslie filed suit against New
York Life in California state small claims court,
FN1
seeking the issuance of the option policies. In
May, New York Life filed a notice of the federal in-
junction in the small claims court and sought to
stay the proceedings. The small claims court appar-
ently ignored that order. In July, two judgments
were entered against New York Life in the small
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
claims cases; New York Life has appealed those
judgments. Leslie stipulated to a stay of the ap-
peals.
FN1. Leslie claims that she did not learn of
the interpleader suit and injunction until
May 18.
When Alvin was sued, two unsuccessful attempts to
serve him were made before he was properly
served. On April 15, 1992, the first try was made at
“5101 Nicholson A-16” in Baton Rouge, Louisiana.
The remarks on the marshal's return said “Invalid
Address According To Current Resident ... No
Phone Directory Listing ... Return Unexecuted.”
The second attempt was on May 12, 1992, at “3539
Clayton Street” in Baton Rouge. The remarks on
the marshal's return said “Current Resident Advises
That Subject Moved-No Forward ... No Directory
Asst. Listing.” The third attempt was successfully
made on June 29, 1992 at “4944 Castlebrook Apts #
326” in Baton Rouge.
On July 9, 1992, before either defendant answered,
Alvin, Leslie and New York Life attended a tele-
phone settlement conference before a magistrate
judge. On August 12, Alvin phoned New York
Life's attorney and told her that he had not respon-
ded because he had been out of town. He told her
that he was unwilling to stipulate to Leslie's owner-
ship and that he would attempt to retain counsel.
New York Life's attorney notified the court of this
conversation by letter. A status conference was set
for September 10, but Alvin declined to participate
in it.
On October 13, Alvin still had not answered, so
New York Life had a default entered against him.
FN2
In October 1992, Leslie filed a motion for
summary judgment. In November, the magistrate
ordered the clerk to mail a copy of the motion to
Alvin. The motion was mailed to the Clayton ad-
dress, which the second marshal's return showed to
be invalid. The letter was returned undelivered.
Summary judgment was granted in January 1993.
The judgment held that Leslie owned the policies

84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)
and both Leslie and Alvin were permanently en-
joined from suing New York Life in any court for a
determination of the ownership of the policies.
FN2. The notice of default was mailed to
the Clayton address, which the second
marshal's return had shown to be invalid. It
was returned undelivered.
In February 1994, Leslie, this time represented by
counsel, sued New York Life in California state
court, alleging that the interpleader was a sham and
seeking damages. In April 1995, the federal district
court denied New York Life's motion to enforce the
injunction and stop the suits. In July 1995,
however, the court reconsidered that ruling and
granted the motion. Leslie was specifically enjoined
from pursuing the California *141 small claims
court actions and the California superior court ac-
tion against New York Life.
In April 1994, Alvin phoned New York Life's attor-
ney to check the status of his case. He then learned
that judgment had been entered over a year earlier
recognizing Leslie as the owner of the policies and
absolving New York Life of further liability. In Oc-
tober 1994, Alvin obtained counsel and filed a mo-
tion to vacate the judgment. That motion was
denied in April 1995. Alvin filed a timely notice of
appeal.
II. DISCUSSION
A. 95-30455 NEW YORK LIFE v. ALVIN
BROWN
[1][2][3] Because it is important to keep straight
default language, a review of the terms regarding
defaults is appropriate. A default occurs when a de-
fendant has failed to plead or otherwise respond to
the complaint within the time required by the Fed-
eral Rules. An entry of default is what the clerk
enters when the default is established by affidavit
FN3
or otherwise. Fed.R.Civ.P. 55(a). After defend-
ant's default has been entered, plaintiff may apply
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
for a judgment based on such default. This is a de-
fault judgment.
FN3. All rule references are to the Federal
Rules of Civil Procedure.
In the instant case, Alvin defaulted because he did
not file an answer within the allowed time. On New
York Life's motion, an entry of default was entered
against Alvin; a default judgment was never
entered. Instead, Leslie moved for summary judg-
ment, which was granted.
1. Whether Alvin “Appeared”
[4] Alvin complains that he never received notice
of the summary judgment. Leslie contends that be-
cause Alvin defaulted, he was not entitled to notice.
We conclude that Alvin appeared in the lawsuit and
was thus entitled to notice before the granting of
the summary judgment.
Rule 5 requires that “every written motion ... be
served upon each of the parties. No service need be
made on parties in default for failure to appear. ”
(Emphasis added). “[B]y appearing at any time in
the action, a party becomes entitled to have his at-
torney notified of all subsequent proceedings and
receive copies of all papers, even if he later chooses
to default.” 4A CHARLES ALAN WRIGHT AND
ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1144 (2d ed. 1987)
(emphasis added).
[5][6][7][8] In order to determine whether Alvin
was entitled to service of the motion for summary
judgment, we must first determine whether Alvin's
FN4
actions rose to the level of an appearance. An
appearance “involves some presentation or submis-
FN5
sion to the court.” 10 WRIGHT AND
MILLER, FEDERAL PRACTICE AND PROCED-
URE § 2686 (2d ed. 1987) (internal quotation omit-
ted). What constitutes an appearance is not
“confined to physical appearances in court or the
actual filing of a document in the record.” Sun Bank
of Ocala v. Pelican Homestead and Savings Assoc.,

84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)
874 F.2d 274, 276 (5th Cir.1989). Appearances
“include a variety of informal acts on defendant's
part which are responsive to *142 plaintiff's formal
action in court, and which may be regarded as suffi-
cient to give plaintiff a clear indication of defend-
ant's intention to contest the claim.” Sun Bank, 874
F.2d at 276 (internal quotation omitted). In sum-
mary, an appearance is an indication “in some way
[of] an intent to pursue a defense.” United States v.
McCoy, 954 F.2d 1000, 1003 (5th Cir.1992). This is
“a relatively low threshold.” Id.
FN4. Leslie contends that Alvin is raising
for the first time on appeal the issue of
whether he appeared in the action. While
her argument is not without merit, we dis-
agree. No “bright-line rule” exists for de-
termining whether a matter was raised be-
low. First United Financial Corp. v. Spe-
cialty Oil Co., 5 F.3d 944, 948 n. 9 (5th
Cir.1993). “[I]f a litigant desires to pre-
serve an argument for appeal, the litigant
must press and not merely intimate the ar-
gument during the proceedings before the
district court. If an argument is not raised
to such a degree that the district court has
an opportunity to rule on it, we will not ad-
dress it on appeal.” F.D.I.C. v. Mijalis, 15
F.3d 1314, 1327 (5th Cir.1994). Issues
may be raised for the first time in post-
judgment motions. First National Bank of
Commerce v. Lamaze, 7 F.3d 1227, 1229
n. 9 (5th Cir.1993). While Alvin might
have raised the issue more specifically, we
are persuaded that his motion to vacate the
judgment met the threshold level to avoid
forfeiture. Alvin's motion informs the court
the he is complaining of a lack of notice
before the granting of summary judgment.
We are convinced that this was adequate to
allow the court to rule on the issue.
FN5. This discussion of appearances is
drawn from caselaw on Rule 55(b)(2) ap-
pearances, which require three days notice
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
and entry of judgment by the court for de-
fault judgments when the defendant has
appeared. However, Rule 5(a) appearances
will be treated the same, as both 55(b)(2)
and 5(a) involve defendants who at one
time appeared, but later defaulted.
Alvin took two actions which could be considered
appearances: (1) he participated in a telephone con-
ference with the other parties before the magistrate
judge and (2) he spoke with counsel for New York
Life, informing her that he would not sign a stipula-
tion and that he was attempting to retain counsel to
contest the suit. We conclude that Alvin's attend-
ance at the phone conference before the magistrate
judge is an appearance, because he actually ap-
peared in court (albeit by phone). Likewise, his
phone call to New York Life's counsel, informing
him that he would contest the suit, is also an ap-
pearance. Charlton L. Davis & Co. v. Fedder Data
Center, Inc., 556 F.2d 308, 309 (5th Cir.1977)
(phone call from defendant to plaintiff's attorney,
informing him that he intended to contest the suit,
considered an appearance). Therefore, because Alv-
in had appeared in the suit, he was entitled under
Rule 5(a) to service of all papers in the suit, includ-
FN6
ing the motion for summary judgment.
FN6. Rule 56 requires that the summary
judgment motion be served at least 10 days
before the hearing.
2. Whether Alvin Received Notice
[9] Because Alvin was entitled to notice, we must
determine whether he actually received it. After re-
viewing the facts, we determine that the district
clerk's mailing of the notice to an address it knew
from its own documents to be invalid, does not sat-
isfy the notice requirement of Rule 5.
The magistrate judge ordered the clerk to mail a
copy of the summary judgment motion to Alvin.
FN7
The clerk mailed the papers to the Clayton ad-
dress (where the second unsuccessful attempt at

84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)
service had been made). In its order denying Alv-
in's motion to vacate judgment, the district court
found that this was not a problem, because Alvin
was under a continuing obligation to apprise the
court of any address changes.
FN7. Because Leslie was concerned that
Alvin would harm her, special arrange-
ments were made with the court so Alvin
would not learn her address. Pursuant to
the arrangement, service of all papers from
Leslie to Alvin was made through the
court.
Rule 5(b) requires service to be made by mailing a
copy of the papers “to the attorney or party at the
attorney's or party's last known address....” Alvin
correctly points out that the Clayton address was
not his last known address; his last known address
was at the Castlebrook Apartments, where he had
been served. The district court's statement that Alv-
in was under a continuing obligation to notify the
court of any change in address is inapposite: he had
not moved. The court tried to serve him at an ad-
dress it knew, or should have known, was not his
last known address. Therefore, the attempt at ser-
vice did not conform with Rule 5, and Alvin did not
receive the notice to which he was entitled.
3. Alvin's Motion to Vacate the Judgment
[10][11][12] Rule 60(b)(4) allows district courts to
“relieve a party ... from a final judgment” because
the judgment is void. We typically review district
court orders denying Rule 60(b) relief for abuse of
discretion. CJC Holdings, Inc. v. Wright & Lato,
Inc., 979 F.2d 60, 63 (5th Cir.1992). “When,
however, the motion is based on a void judgment
under rule 60(b)(4), the district court has no discre-
tion-the judgment is either void or it is not.” Recre-
ational Prop. Inc. v. Southwest Mortgage Serv.
Corp., 804 F.2d 311, 313 (5th Cir.1986); 11
CHARLES ALAN WRIGHT, ARTHUR R.
MILLER AND MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2862 (2d ed.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 8
1995). “[T]here is no time limit on an attack on a
judgment as void. The one-year limit applicable to
some Rule 60(b) motions is expressly inapplicable,
and even the requirement that the motion be made
within a ‘reasonable time,’ which seems *143 liter-
ally to apply to motions under Rule 60(b)(4), can-
not be enforced with regard to this class of motion.”
Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir.1993)
(quoting 11 CHARLES ALAN WRIGHT, AR-
THUR R. MILLER AND MARY KAY KANE,
FEDERAL PRACTICE AND PROCEDURE §
2862 (1973)) (brackets in original).
[13] In order to determine whether the judgment
should be set aside, we must determine whether the
judgment is void. “A judgment is not void merely
because it is erroneous.” 11 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER AND MARY
KAY KANE, FEDERAL PRACTICE AND PRO-
CEDURE § 2862 (2d ed. 1995) “A judgment ‘is
void only if the court that rendered it lacked juris-
diction of the subject matter, or of the parties, or if
it acted in a manner inconsistent with due process
of law.’ ” Williams v. New Orleans Public Serv.,
Inc., 728 F.2d 730, 735 (5th Cir.1984) (quoting 11
CHARLES ALAN WRIGHT, ARTHUR R.
MILLER AND MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2862 (1973)).
[14][15] The district court had both subject matter
and personal jurisdiction. Thus, our only inquiry is
whether the district court acted in a manner so in-
consistent with due process as to render the judg-
ment void. “[O]rdinarily all that due process re-
quires in a civil case is proper notice and service of
process and a court of competent jurisdiction; pro-
cedural irregularities during the course of a civil
case, even serious ones, will not subject the judg-
ment to collateral attack.” Fehlhaber v. Fehlhaber,
681 F.2d 1015, 1027 (5th Cir.1982), cert. denied,
464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983).
[16][17] Under our system of justice, the opportun-
ity to be heard is the most fundamental require-
ment. Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed.

84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)
865 (1950) (“The fundamental requisite of due pro-
cess of law is the opportunity to be heard.”).
Without notice of an impending grant of summary
judgment, a defendant has no opportunity to be
heard. Therefore, Alvin was denied due process of
law and the judgment against him is void. Bass v.
Hoagland, 172 F.2d 205 (5th Cir.), cert. denied,
338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494 (1949). Be-
cause the judgment against him is void, the district
court erred in refusing the vacate the judgment un-
der Rule 60(b)(4).
B. 95-30786 NEW YORK LIFE v. LESLIE
BROWN
Leslie complains about the district court's perman-
ent injunction prohibiting her from suing New York
Life in California for bad faith actions regarding the
insurance policy. Because the judgment against
Alvin is vacated, it is yet to be determined whether
Leslie or Alvin owns the life insurance policies.
Therefore, there is no final judgment in the case. As
there is no final judgment, a permanent injunction
is inappropriate, so it is vacated. Thus, we need not
consider Leslie's claims.
CONCLUSION
Because the summary judgment against Alvin has
been vacated, the case is returned to the same pro-
cedural position that existed before the summary
judgment was taken. That is, (1) Alvin has defaul-
ted and an entry of default has been entered against
him; (2) Leslie has filed for summary judgment, but
that motion has yet to be served on Alvin; and (3) a
preliminary injunction exists restraining Leslie and
Alvin from instituting any actions against New
York Life relative to the life insurance policies.
Because Alvin has defaulted, he must succeed in
setting aside the default before he will be permitted
to respond to the motion for summary judgment.
Only if a Rule 55(c) motion is made, and granted,
will Alvin be allowed to file an answer or a re-
sponse to the summary judgment motion. We ex-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 9
press no opinion as to how the district court should
rule on any Rule 55(a) motion.
Leslie has not brought the bad faith action against
FN8
New York Life as a counterclaim. Should
Leslie seek to amend her answer to *144 raise this
counterclaim, she may file for leave of the district
FN9
court to amend her answer. We express no
opinion as to whether the district court should grant
leave; instead we entrust that decision to the district
court's sound discretion. Chitimacha Tribe of
Louisiana v. Harry L. Laws Co., 690 F.2d 1157,
1163 (5th Cir.1982), cert. denied, 464 U.S. 814,
104 S.Ct. 69, 78 L.Ed.2d 83 (1983).
FN8. Because we need not reach the issue
of the preclusive effect of failing to file a
counterclaim on the issue, we express no
opinion as to whether the claim is a com-
pulsory counterclaim under Rule 13(a).
FN9. One issue Leslie raised, however,
does deserve comment. Leslie argued that
she did not raise her claims against New
York Life at the interpleader level because
the district court has enjoined her from do-
ing so. We believe that Leslie misreads the
injunction. As we read it, Leslie is prohib-
ited from filing an action related to the
policies in any other court. She is not pro-
hibited from filing a counterclaim in the
interpleader action. We are aware that
Leslie was pro se throughout much of the
proceeding. Nonetheless, we believe that
Leslie should have asked the district court
for clarification of its order before she
chose to avoid filing a possibly-com-
pulsory counterclaim.
The judgments of the district court in both
95-30455 and 95-30786 are VACATED and RE-
MANDED for further proceedings consistent with
this opinion.
C.A.5 (La.),1996.
New York Life Ins. Co. v. Brown
 Page 10
84 F.3d 137, 34 Fed.R.Serv.3d 1463
(Cite as: 84 F.3d 137)

84 F.3d 137, 34 Fed.R.Serv.3d 1463

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.