FRAUDULENT CONVEYANCES Nassau Academy of Law CLE Live ...

443 F.3d 180 Page 9443 F.3d 180(Cite as: 443 F.3d 180)defeating act if movants (having been kept out oflitigation) had injected themselves in the case in orderto attack a judgment that did not then affect them.A Rule 60(b)(4) motion must be made "within a reasonabletime" after entry of the judgment.Fed.R.Civ.P. 60(b). "Courts have been exceedinglylenient in defining the term 'reasonable time,' withregard to voidness challenges. In fact, it has been oftstatedthat, for all intents and purposes, a motion tovacate a default judgment as void 'may be made atany time.' " State St. Bank, 374 F.3d at 179 (quotingBeller & Keller v. Tyler, 120 F.3d 21, 24 (2dCir.1997)). In our decision in Central Vermont PublicService Corp., the Rule 60(b) motion was not untimelyalthough the movant had waited more thanfour years to bring its motion, and did so when"prompted by a suit ...." 341 F.3d at 188, 189. Weheld in State Street Bank, "where a party has previouslyfiled a motion to vacate a default judgment thatfailed to raise a voidness argument and subsequentlyadvances such an argument in a Rule 60(b)(4) motionmore than a year after the entry of the default judgment,the Rule 60(b)(4) motion should be denied asuntimely." 374 F.3d at 179. [FN8]FN8. Rule 60(b)(6) does not have a one yearlimit, but instead requires that the motionmust be made within a "reasonable time."Fed.R.Civ.P. 60(b)(6). To determine thetimeliness of a motion brought pursuant toRule 60(b)(6), we look at the particular circumstanceof each case and "balance the interestin finality with the reasons for delay."Kotlicky v. United States Fidelity & Guar.Co., 817 F.2d 6, 9 (2d Cir.1987). Notably, aRule 60(b)(6) motion requires "extraordinarycircumstances," which "typically do notexist where the applicant fails to move forrelief promptly." 12 MOORE'S FEDERALPRACTICE § 60.48[3][c]; Transaero, Inc.v. La Fuerza Area Boliviana, 24 F.3d 457,462 (2d Cir.1994). Moore's Federal Practicedoes not define "promptly," instead it citesTransaero, which holds, "[n]or, in the circumstancesof this case, does the fact thatBAF did not learn of the entry of the defaultjudgment for several years constitute 'extraordinarycircumstances' justifying Rule60(b)(6) relief." Id. at 462. Because we laterdecline to rule on the district court's grantingof the Rule 60(b)(6) motion, we do not decidewhether the Rule 60(b)(6) motion wastimely.*191 Judge Trager distinguished the movants herefrom those in Beller & Keller, as the movants herehad not filed any previous appeal or motion to vacate.He reasoned:Regardless of whether or not they theoretically hadthe option of doing so, they have provided a simpleexplanation for their actions: they waited untilplaintiffs had actually sued them under DCL §273-a. Taking into account this lenient standard,the motion was filed within a reasonable time,namely, shortly after the commencement of [the2004 actions for fraudulent conveyances].Grace XI, at 10. Judge Trager's observation was especiallyappropriate considering that the allegedlyfraudulent transactions occurred nearly fifteen yearsearlier.In a typical case, five years from the judgment to aRule 60(b) motion would be considered too long bymany courts. This case, however, is anything buttypical. Plaintiffs created significant delay by bringinga fraudulent conveyance claim more than fifteenyears after the conveyances were alleged to havebeen made, and five years after the judgment thatthey could not satisfy. Plaintiffs' argument thatmovants have waited too long, when movantsbrought this motion only weeks after plaintiffs filedthis lawsuit, is unpersuasive. In this case, we are interestedless in the number of years from the time ofjudgment, than we are in what has happened in between.It was well within Judge Trager's discretion todetermine that the Rule 60(b) motion was timely,because being directly sued provides "good cause."V. The Judgment is void under Rule 60(b)(4)[6] Movants contend that the judgment here is voidfor several reasons: (a) the default judgment was enteredwithout any evidentiary hearings, detailed affidavits,or documentary evidence having been presentedto the district court; (b) a corporation cannotappear pro se in federal court; (c) there were materialconflicts of interest between the corporate officersnegotiating the settlement agreement and the corporationitself; and (d) the judgment was in violation ofRule 54(c) of the Federal Rules of Civil Procedurebecause plaintiffs obtained relief in excess and differentin kind from that sought in their complaint.© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.