Trade Well International v. United Central Bank , 825 F.3d 854 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3353
TRADE WELL INTERNATIONAL,
Plaintiff-Appellant,
v.
UNITED CENTRAL BANK,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:12-CV-00701 — James D. Peterson, Judge.
____________________
ARGUED MAY 27, 2016 — DECIDED JUNE 17, 2016
____________________
Before POSNER and FLAUM, Circuit Judges, and ALONSO,
District Judge.*
FLAUM, Circuit Judge. This appeal arises out of a 2012 re-
plevin action brought by Trade Well International, a Pakistani
company that leases furnishings to hotels, against United
Central Bank (the “Bank” or “UCB”) in federal court. In 2010,
*The Honorable Jorge L. Alonso, United States District Court for the
Northern District of Illinois, sitting by designation.
2 No. 15-3353
UCB foreclosed on a hotel that had leased items from Trade
Well. After Trade Well’s attorney, Maurice Salem, attempted
to file a lien on property owned by the Bank, the district court
held Salem in contempt and revoked his pro hac vice status.
The Bank then filed a counterclaim against Trade Well alleg-
ing slander of title. Because Trade Well failed to retain a dif-
ferent attorney, the district court entered default judgments
in favor of the Bank in the replevin action and counterclaim.
In February 2015, we reversed the district court’s con-
tempt order against Salem and reinstated his pro hac vice sta-
tus. With Salem appearing once again on its behalf, Trade
Well moved to set aside the default judgments. The district
court denied Trade Well’s motion. We affirm.
I. Background
This is the second appeal arising out of Trade Well’s 2012
replevin action against UCB. See Trade Well Int’l v. United Cent.
Bank, 778 F.3d 620 (7th Cir. 2015) (“Trade Well I”). After UCB
foreclosed on the hotel housing Trade Well’s leased furnish-
ings and started searching for buyers, Trade Well demanded
the return of its property. The Bank refused and Trade Well
sued the Bank for replevin in the Western District of Wiscon-
sin. Trade Well later amended its complaint to add claims of
negligence and conversion.
While the replevin action was pending, Trade Well’s attor-
ney, Salem, filed a “Notice of Lien” on the hotel with the Sauk
County Register of Deeds in March 2014. The Bank asked Sa-
lem to withdraw the notice, but he refused. The Bank then
asked the district court to strike the notice, revoke Salem’s pro
hac vice admission, and assess costs and attorney’s fees
against Trade Well and Salem. On April 4, 2014, the district
No. 15-3353 3
court held Salem in contempt of court and revoked his pro
hac vice admission as a sanction for filing the lien. The court
also referred him for disciplinary action by the States of Wis-
consin and New York, and imposed a $500 fine.
Additionally, the district court granted the Bank leave to
file a counterclaim seeking a temporary restraining order, in-
junction, or damages related to the filing of the lien. In June
2014, the Bank filed a counterclaim against Trade Well alleg-
ing slander of title and seeking damages, costs, attorney’s
fees, as well as a declaratory judgment that the notice Salem
had filed was void.
The dispute between Trade Well and the Bank was still
pending before the district court when Salem filed a pro se
appeal of the contempt and sanctions order with this Court.
On February 10, 2015, in Trade Well I, we vacated the district
court’s contempt order and imposition of sanctions. 778 F.3d
at 628.
Because he had been deprived of his pro hac vice status
during the pendency of the Trade Well I appeal, Salem was
unable to represent Trade Well in the replevin action before
the district court. Trade Well did not secure alternative repre-
sentation and, due to its corporate status, was unable to ap-
pear in court without counsel. Consequently, nearly seven
months after Salem was removed as counsel, the district court
entered default and dismissed with prejudice Trade Well’s
claims against the Bank for failure to prosecute. The court also
entered a default judgment against Trade Well on the Bank’s
counterclaim.
4 No. 15-3353
In March 2015, after this Court reinstated Salem’s pro hac
vice status, Trade Well—with Salem back as its representa-
tive—filed a motion to vacate the default judgments in the
original suit and the counterclaim. 1 In September 2015, the
district court held an evidentiary hearing on the motion to va-
cate. Salem testified that following revocation of his pro hac
vice status, he had tried to obtain substitute counsel for Trade
Well. He claimed to have spoken with four law firms and ap-
proximately ten attorneys about taking the case between
April and June of 2014. He also testified that he had contacted
between 50 and 100 attorneys following the district court’s en-
try of default judgment in October 2014. However, Salem’s
court filings consistently stated that he had contacted four
firms and “over ten attorneys.”
Salem further testified that his primary method of finding
counsel was to search the internet for attorneys in Madison.
He also claimed that he had called the district court’s clerk’s
office for a list of attorneys. Salem said that he had even con-
tacted the Pakistani embassy in an effort to recruit counsel.
Salem testified that despite these efforts, he was unable to
recruit substitute counsel. Salem expressed his belief that
Madison attorneys were afraid to take the case because they
did not want to jeopardize their relationship with the district
court. According to Salem, one of the attorneys he spoke with
described the case as a “hot potato.” Salem said that two of
his friends in Illinois declined the case because they were
afraid of unfair prejudice by the district court.
1 Following our decision in Trade Well I, the original district court
judge recused himself in the case on March 16, 2015.
No. 15-3353 5
Trade Well also presented testimony from Umar Paracha,
the brother of one of Trade Well’s owners. Paracha testified
that he had attempted to recruit counsel for Trade Well. While
Paracha admitted that he had not contacted any attorneys
who had represented him in previous matters, he said that he
had approached between ten and fifteen lawyers about repre-
senting Trade Well. He testified that he primarily used the in-
ternet to find attorneys. Like Salem, Paracha was unable to
secure counsel for Trade Well. He suggested that attorneys
were afraid to take the case because they did not believe that
they could win.
In addition to this testimony, Trade Well offered four ex-
hibits. Two of the four exhibits listed names and phone num-
bers for four attorneys that Paracha claimed to have con-
tacted. Salem also submitted notes containing a list of nine at-
torneys with phone numbers as well as information for his
two friends in Illinois. Moreover, Trade Well submitted an af-
fidavit from Muhammad Tahir, who is one of Trade Well’s
owners and Paracha’s brother. The affidavit states that the
company instructed Salem and Paracha to offer money to any
attorney willing to take the case. Yet, Salem and Paracha tes-
tified that they never mentioned Trade Well’s willingness to
pay to any of the attorneys they contacted because the discus-
sions never reached the matter of compensation.
The district court expressed skepticism about Trade Well’s
efforts to find counsel. In particular, the court found incredi-
ble Salem’s claim that he contacted 50 to 100 attorneys. The
court determined that Salem had contacted approximately
fourteen attorneys, mostly between April and June 2014. The
6 No. 15-3353
court also noted that many of the attorneys Salem had con-
tacted practiced criminal law and thus, Salem had not made a
substantial effort to find commercial litigators.
Similarly, the district court found that Paracha’s testimony
was exaggerated. The court determined that he had contacted
approximately four attorneys starting in October 2014. The
court further found incredible the assertion that Salem and
Paracha never discussed compensation with any of the attor-
neys.
Based on these findings, the district court denied Trade
Well’s motion to set aside the default judgments. It found that
Trade Well had not demonstrated good cause for and quick
action to correct the defaults. The district court also rejected
Trade Well’s efforts to argue that the judgments were invalid.
Trade Well appeals, arguing that the default judgments are
void for lack of personal jurisdiction, that it demonstrated
good cause for and quick action to correct the defaults, and
that precedent requires us to vacate the defaults.
II. Discussion
A. Validity of the Default Judgments
Trade Well first argues that the district court lacked per-
sonal jurisdiction over it, rendering the default judgments in-
valid. Under Federal Rule of Civil Procedure 60(b), a final
judgment must be set aside if the court lacked personal juris-
diction. Bally Exp. Corp. v. Balicar, Ltd., 804 F.2d 398, 400 (7th
Cir. 1986). A judgment is also void as to any party who was
not adequately served. Relational, LLC v. Hodges, 627 F.3d 668,
671 (7th Cir. 2010). In addition, a judgment is void if it was
rendered “in a manner inconsistent with due process of law.”
United States v. Indoor Cultivation Equip. from High Tech Indoor
No. 15-3353 7
Garden Supply, 55 F.3d 1311, 1316 (7th Cir. 1995) (citation and
internal quotation marks omitted). Although the standard of
review for appeals under Rule 60(b) is abuse of discretion, it
is a per se abuse of discretion for a district court to refuse to
vacate an invalid judgment. Id. at 1317.
We cannot accept Trade Well’s contention that the district
court lacked personal jurisdiction over it because Trade Well
is a foreign corporation that did not have counsel at the time
of the default judgments. By filing the original replevin ac-
tion, Trade Well submitted itself to jurisdiction in Wisconsin
for purposes of the replevin action and the counterclaim. In
general, when a defendant interposes a permissive counter-
claim, the plaintiff cannot object that the court lacks personal
jurisdiction for purposes of adjudicating the claim. See Leman
v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451 (1932) (hold-
ing, in a patent case, that “[w]hen the [plaintiff] brought the
suit in [federal district court], it submitted itself to the juris-
diction of the court with respect to all the issues embraced in
the suit, including those pertaining to the counterclaim of the
defendants”); 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1424 (3d ed. 2016).
Moreover, a district court may exercise personal jurisdic-
tion over any party that purposefully avails itself of the fo-
rum. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011).
By filing suit in Wisconsin, Trade Well availed itself of the fo-
rum, whether by explicitly consenting to jurisdiction, waiving
any challenge to jurisdiction, or simply receiving the privi-
leges and benefits of the forum state. See id. at 880–81. Indeed,
the purposeful availment inquiry is ultimately about whether
the party should reasonably anticipate being haled into court
in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
8 No. 15-3353
474 (1985). When a plaintiff files a claim in a particular state,
he should reasonably expect to answer a counterclaim in that
forum.
Relatedly, Trade Well argues that it was fundamentally
unfair and a violation of due process for the district court to
impose a default judgment after its counsel was removed. We
disagree. Trade Well received notice of the proceedings and
an opportunity to be heard. See Grun v. Pneumo Abex Corp.,
163 F.3d 411, 423 (7th Cir. 1998) (outlining the requirements
for due process). The Bank claims that following Salem’s re-
moval, it served Trade Well directly with all relevant motions
at its last known address; Trade Well does not dispute that it
had notice of the proceedings, including both motions for de-
fault judgment. Trade Well does argue that without Salem, it
had no means of representing itself because corporations can-
not proceed pro se. United States v. Hagerman, 545 F.3d 579,
581 (7th Cir. 2008) (“A corporation is not permitted to litigate
in a federal court unless it is represented by a lawyer licensed
to practice in that court.”). Nonetheless, Trade Well had am-
ple time—nearly seven months—to secure replacement coun-
sel to prosecute the original action, and roughly five months
to respond to the counterclaim. Trade Well also could have
requested a stay pending Salem’s appeal, but did not do so.
Given the circumstances, we agree with the district court that
the default judgments did not violate due process.
Trade Well also suggests that the judgments are invalid
due to inadequate service of process. This argument is una-
vailing because the Bank adequately served Trade Well under
Rules 4 and 5. As mentioned above, Trade Well does not dis-
pute the Bank’s assertion that, following Salem’s removal, it
No. 15-3353 9
served all filings on Trade Well at its last known address. Ser-
vice of process therefore was proper under Rule 4, which pro-
vides that a foreign corporation may be served “by any inter-
nationally agreed means of service that is reasonably calcu-
lated to give notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudi-
cial Documents.” Fed. R. Civ. P. 4(f)(1), (h)(2); see also Research
Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2002)
(“[S]imple certified mail [is] a method permitted by Article
10(a) of the Hague Convention, so long as the foreign country
does not object.” (internal citation omitted)). Similarly, service
of process was valid under Rule 5 because all documents were
mailed to Trade Well’s last known address. See Fed. R. Civ. P.
5(b)(2)(C) (allowing service to a person’s last known address
and specifying that service is complete upon mailing).
In sum, the default judgments are valid and the district
court did not abuse its discretion by refusing to set them
aside.
B. Denial of the Motion to Vacate
Trade Well next argues that, even if the default judgments
are valid, the district court abused its discretion by denying
its motion to vacate. Trade Well’s primary contention is that
the district court improperly discredited Salem’s and Para-
cha’s testimony without any evidence to contradict their alle-
gations. Because Trade Well believes its efforts to find repre-
sentation were “extraordinary and undisputed,” it claims that
the district court should have granted the motion to vacate.
Courts grant relief under Rule 60(b) only in exceptional
circumstances. Wehrs v. Wells, 688 F.3d 886, 890 (7th Cir. 2012).
We review a motion to vacate a default judgment for abuse of
10 No. 15-3353
discretion. Shakman v. City of Chicago, 426 F.3d 925, 932 (7th
Cir. 2005). A district court abuses its discretion when its fac-
tual findings are clearly erroneous. Id. We give special defer-
ence to a district court’s credibility determinations. See Ander-
son v. City of Bessemer City, 470 U.S. 564, 575 (1985). To vacate
a default judgment, the movant must demonstrate good cause
for the default, quick action to correct it, and a meritorious
case. Pretzel & Stouffer, Chartered v. Imperial Adjusters, Inc., 28
F.3d 42, 45 (7th Cir. 1994). The burden of proof rests on the
party moving to vacate the judgment. Bally Export Corp., 804
F.2d at 401.
As an initial matter, Trade Well’s claim that the district
court erred in its credibility determinations because it lacked
contrary evidence is without merit. A district court need not
have contrary evidence to discredit a witness. Rather, a court
may find a witness incredible based on a variety of testimo-
nial issues, such as a lack of specific details, implausibility, in-
ternal inconsistences, as well as contrary evidence. See Ander-
son, 470 U.S. at 575 (“Documents or objective evidence may
contradict the witness’ story; or the story itself may be so in-
ternally inconsistent or implausible on its face that a reasona-
ble factfinder would not credit it.”). Additionally, Trade Well
bore the burden of proof. A district court may properly find a
witness insufficiently reliable such that this burden is not met.
Furthermore, Trade Well cannot show that the district
court’s factual findings were clearly erroneous. The testimony
Trade Well presented at the evidentiary hearing lacked spe-
cific details, included implausible allegations, and contained
No. 15-3353 11
inconsistencies. 2 In addition, the exhibits Trade Well submit-
ted to support this testimony were insubstantial and sug-
gested that Salem and Paracha in fact attempted to contact
only a handful of attorneys. Even accepting the testimony at
face value, the district court did not err by concluding that
Trade Well’s efforts to find an attorney were belated and dis-
organized.
We also agree with the district court that Trade Well can-
not satisfy its burden to show that the default judgments
should be set aside. The court correctly found that Trade Well
could not establish good cause for the defaults. See Chrysler
Credit Corp. v. Macino, 710 F.2d 363, 367 (7th Cir. 1983) (noting
that evidence of delay may weigh against a finding of good
cause). Trade Well had nearly seven months to secure a new
attorney and avoid the default judgments between Salem’s re-
moval and entry of the default orders. Trade Well does not
dispute that it had ample notice prior to the defaults, yet it did
nothing beyond Salem’s and Paracha’s alleged efforts to se-
cure counsel. Furthermore, Paracha’s efforts did not com-
mence until October 2014 and thus were too late to demon-
strate good cause. Taken together, we conclude that the dis-
trict court did not err by finding that Trade Well had not con-
ducted a reasonable and diligent search for representation.
The district court also correctly found that Trade Well
failed to take quick action to set aside the default judgments.
2 For instance, Salem could not remember any names of the attorneys
he contacted, and both Salem and Paracha implausibly claimed that they
did not discuss compensation with any of the attorneys they contacted.
Salem’s filings are also inconsistent with his testimony. Salem alleged in
court documents that he had contacted “over ten attorneys,” yet he testi-
fied that he had contacted 50 to 100 lawyers.
12 No. 15-3353
This factor relates to “the time elapsing between entry of judg-
ment and the motion to vacate.” Jones v. Phipps, 39 F.3d 158,
165 (7th Cir. 1994). Here, the default judgments were imposed
on October 27, 2014, yet Trade Well waited five months before
moving to set them aside. What constitutes “quick action”
varies from case to case, but in this case the district court did
not err by concluding that five months does not meet the
standard, especially given that Trade Well had timely notice
of the defaults. See id. (affirming the district court’s conclusion
that five weeks was too long to satisfy the quick action re-
quirement).
Accordingly, the district court did not abuse its discretion
by denying Trade Well’s motion to vacate.
C. Effect of Trade Well I
Finally, Trade Well argues that this Court’s decision in
Trade Well I requires us to vacate the default judgments. Trade
Well contends that had Salem not been erroneously removed
from the case, the default judgments would not have been en-
tered. Thus, in Trade Well’s view, our decision to vacate the
order to remove Salem also operates to vacate the default or-
ders caused by the district court’s later-reversed removal or-
der.
We disagree. At the outset of Trade Well I, we noted that
“[t]he only part of this messy case that is before us is Salem’s
appeal from the various measures the court took against
him.” 778 F.3d at 625. And we specifically stated that “[w]e
are also not concerned with any possible appeal by Trade
Well contesting the default judgment or the finding of a fail-
ure to prosecute.” Id.
No. 15-3353 13
There is therefore no basis for reading Trade Well I to have
any effect on the district court’s default orders. Moreover,
even if we accept the premise of Trade Well’s argument, it is
inaccurate to say that Salem’s removal caused Trade Well to
default because Trade Well had ample opportunity to secure
substitute representation and avoid default.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.