1 Any Attorney or Party

Any Street
2 Any Town, CA 55555

3 714-555-5555

4 Any Attorney or Party

8
UNITED STATES DISTRICT COURT
9 ________ DISTRICT OF _____________

10

11 Any Plaintiff, ) Case No.

)
12 Plaintiff, )
NOTICE OF MOTION AND MOTION TO VACATE
)
JUDGMENT; MEMORANDUM OF POINTS AND
vs. )
13 AUTHORITIES; DECLARATION OF_______;
)
EXHIBITS
Any Defendant, and DOES 1-5m )
14
)
Defendants. ) DATE:
15 TIME:
)
) PLACE
16 )
)
17
)
18

19 PLEASE TAKE NOTICE that on ________, at ______M. in Courtroom _____ of the

20 above-entitled Court located at ___________________________, Defendant ___ will move this

21
Court for an order vacating the judgment entered against them on _____ on the grounds that the
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judgment is void as this Court lacks jurisdiction due to insufficient service of process as more fully
23
set forth in the declaration of ________ and Exhibits attached thereto.
24

25 This motion is made pursuant to Federal Rule of Civil Procedure 60(b)(4) (“Rule 60”) and

26 shall be based upon this notice, the attached Memorandum of Points and Authorities, the declaration
27
of _________ and Exhibits attached thereto, the complete files and records of this action, and such
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 other and further oral and documentary evidence as may be presented at the hearing on this Motion.

3
Dated_________________________ _______________________________________
4 ANY ATTORNEY OR PARTY

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19
MEMORANDUM OF POINTS AND AUTHORITIES
20
I.
21

22 STATEMENT OF FACTS

23 Plaintiffs filed suit against Defendants on or about ___________ alleging: Add some
24

25
brief facts regarding the lawsuit such as breach of contract, etc. See

26 Plaintiffs complaint on file.

27 Default was entered against Defendant on _______________. A Default Judgment
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 was entered against Defendant on _______________. Put in the dates for each one,
2

3
you can get the dates from the Court clerk.
4 Defendant contends the default and judgment are void as the Court lacked jurisdiction over
5
them as they were never validly served as this Court should vacate the judgment pursuant to Federal
6
Rule of Civil Procedure 60(b)(4).
7
See the Declaration of _______________________ and Exhibits attached thereto filed and
8

9 served concurrently and incorporated herein by reference.

10
Be sure to provide some very specific facts as to why you were not
11

12 validly served such as you never lived at that address, you moved out
13
years ago, etc. You need to state the facts that pertain to your
14

15 particular situation. You need to show the reasons why the alleged
16
service on you was not valid.
17

18 You need to state the facts as to exactly when you found out a
19

20 Judgment or Default had been entered against you. Do not just use the
21
wording from this sample for this paragraph.
22

23 II.

24 LEGAL ARGUMENT
25 A. THE COURT HAS THE POWER TO VACATE THE JUDGMENT THAT WAS
26
ENTERED AGAINST THE DEFENDANT ON THE GROUNDS THAT THE
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JUDGMENT WAS VOID AS THE COURT LACKS PERSONAL JURISDICTION
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 DUE TO INEFFECTIVE SERVICE OF PROCESS AND THEREFORE DEFENDANT

2 WAS DEPRIVED OF DUE PROCESS

3
Rule 60 states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or
4
Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a
5
final judgment, order, or proceeding for the following reasons: (4) the judgment is void;
6

7 And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule

8 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year
9
after the entry of the judgment or order or the date of the proceeding.”
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As shown by the declaration of _____________ and exhibits attached thereto Defendant was
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not validly served in that LIST ALL FACTS AND EVIDENCE THAT SUPPORT YOUR
12

13 CONTENTION THAT YOU WERE NOT VALIDLY SERVED CITE TO THE ATTACHED

14 DECLARATION AND EXHIBITS IF APPROPRIATE. LIST THE SPECIFIC FACTS AND

15
EVIDENCE THAT SUPPORT YOUR CONTENTIONS REGARDING THE DEFECTIVE
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SERVICE.
17
See the declaration of ________ and Exhibits attached thereto filed and served concurrently
18

19 herewith and incorporated herein by reference.

20 "Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his
21 case, under a limited set of circumstances." Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).
22
The Ninth Circuit Court of Appeals has ruled that a default judgment is void where the court
23
lacks personal jurisdiction due to insufficient service of process. See S.E.C. v. Internet Solutions for
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25 Bus. Inc., 509 F.3d 1161, 1165 (9th Cir. 2007).

26 And unlike a motion to set aside default judgment for equitable reasons, there is no discretion
27 for a district court to exercise under Rule 60(b)(4); either a judgment is void or it is valid. Thomas P.
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 Gonzales Corp. v. Consego Nacional de Produccion de Costa Rica, 614 F.2d 1247, 1256 (9th Cir.

2 1980).
3
Therefore, a district court need not consider the merits of the defense, prejudice to the
4
plaintiff, or culpability of the defendant under Rule 60(b)(4). Internet Solutions, 509 F.3d at 1165.
5
A void judgment is a legal nullity. See Black's Law Dictionary 1822 (3d ed.1933); see also
6

7 id., at 1709 (9th ed.2009).

8 Although the term "void" describes a result, rather than the conditions that render a judgment
9
unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity
10
that the infirmity may be raised even after the judgment becomes final. See Restatement (Second) of
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Judgments 22 (1980); see also id., § 12.
12

13 Due process requires notice reasonably calculated, under all the circumstances, to apprise

14 interested parties of the pendency of the action and afford them an opportunity to present their
15
objections." Mullane v. Cent. Hanover Bank & Trust Co., 399 U.S. 306, 314 (1950).
16
A defendant must be served in accordance with Fed.R.Civ.P. 4 in order for the court to secure
17
personal jurisdiction over him. Actual notice and simply naming the person in the caption of the
18

19 complaint is insufficient to subject a defendant to the jurisdiction of the district court. Jackson v.

20 Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982). Lack of jurisdiction is "[t]he principal basis for an
21 attack on a default judgment under Rule 60(b)(4)." C. Wright, A. Miller & M. Kane, 10 Federal
22
Practice & Procedure § 2695, at 503 (1983). If the judgment is void, the district court has no
23
discretion but to set aside the entry of default judgment. Id. § 2697.
24

25 The RESTATEMENT (SECOND) OF JUDGMENTS § 65 comment b (1982), explains

26 regarding default judgments that "no public purpose is served by protecting [a] judgment" arising
27 from a "proceeding [that] was infected by fundamental error."
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 There is no limitation on filing a Rule 60(b)(4) motion. 11 CHARLES ALAN WRIGHT ET

2 AL., FEDERAL PRACTICE AND PROCEDURE § 2862 (3d ed.2013).

3
Be sure to provide some very specific facts as to why you were not
4

5 validly served such as you never lived at that address, you moved out
6

7
years ago, etc. You need to state the facts that pertain to your
8
particular situation. You need to show the reasons why the alleged
9

10 service on you was not valid.

11
You need to state the facts that pertain to your particular
12

13 situation. You need to state the facts as to exactly when you became
14
aware of the fraud, misconduct or other misrepresentation of the
15

16 adverse party and why it prevented you from fairly presenting your
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18 case. Do not just use the wording from this sample for this paragraph.
19
B. THE MOVING PARTY HAS MET THEIR BURDEN OF SHOWING THAT
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THE JUDGMENT IS VOID FOR LACK OF PERSONAL JURISDICTION DUE TO
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INEFFECTIVE SERVICE OF PROCESS
22

23 Defendant has met their burden required for relief under Rule 60(b)(4) in that LIST HERE

24 THE SPECIFIC FACTS AND EVIDENCE SUPPORTING YOUR CONTENTIONS AND BE

25 SURE TO CITE AGAIN TO ANY ATTACHED DECLARATIONS AND EXHIBITS.
26
The judgment is clearly void and thus this Court should vacate the judgment and therefore this
27
Court should vacate the judgment as the Ninth Circuit Court of Appeals has ruled that the Federal
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 Rules of Civil Procedure have a strong, underlying policy that favors a decision on the merits. Eitel v.

2 McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

3
C. IT IS WELL SETTLED THAT RULE 60 IS TO BE LIBERALLY
4
CONSTRUED SO THAT CASES ARE TRIED ON THEIR MERITS
5
In discussing Rule 60 the Ninth Circuit Court of Appeal has stated that this rule, like all the
6

7 Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of

8 seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal
9
citations omitted.) See also Fed. R. Civ. P. 1 “The Federal Rules should be construed and
10
administered to secure the just, speedy, and inexpensive determination of every action and
11
proceeding.”
12

13 “Rule 60(b) is ‘remedial in nature and . . . must be liberally applied.’ ” TCI Group Life Ins. v.

14 Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (internal citations and quotations omitted.)
15
The judgment was unfairly obtained through ineffective service of process in that Defendant
16
was not validly served. Thus this Court should exercise its discretion so that this case can be decided
17
on its merits as the law favors.
18

19 III.

20 CONCLUSION
21 Based on the above, Defendant________________ respectfully requests that the Court set
22
aside the Judgment that was entered against them on the grounds that the judgment is void for lack of
23
personal jurisdiction due to ineffective service of process so that this case can be heard on its merits,
24

25 as the law favors.

26

27 Dated_________________________ _______________________________________
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ANY ATTORNEY OR PARTY

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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1

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DECLARATION OF
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I, _____________________, declare as follows.
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1. I am over the age of 18 years and am a party to this action. I have personal
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19 knowledge of the facts stated in this declaration, and if called as a witness, could and would testify

20 competently to the truth of the facts as stated herein.

21 2. I make this declaration in support of my motion to vacate the judgment entered against
22
me on ______ on the grounds that the judgment is void for lack of personal jurisdiction due to
23
ineffective service of process.
24

25 3. I first heard about Plaintiff’s complaint in _______, ____________, when I discovered

26 that a default and judgment had been entered against me.

27 3. I was never validly served in that LIST HERE IN DETAIL THE SPECIFIC
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 FACTS AND EVIDENCE THAT SUPPORT YOUR CONTENTION THAT YOU WERE NOT

2 VALIDLY SERVED WITH THE SUMMONS AND COMPLAINT SUCH AS YOU NEVER
3
LIVED AT THAT ADDRESS OR YOU MOVED OUT YEARS AGO.
4

5
You need to state the facts that pertain to your particular
6
situation. You need to show the reasons why the alleged service on you
7

8 was not valid.

9
You need to state the facts as to exactly when you found out a
10

11 Judgment or Default had been entered against you. Do NOT just use
12
the wording from this sample for this paragraph.
13

14
If you have other documents that support your declaration be
15

16 sure to add them as Exhibit “1”, etc.

17
4. ADD HERE ADDITIONAL SUPPORTING FACTS AND EVIDENCE IF
18
APPROPRIATE.
19
5. I respectfully request that the Court vacate the Judgment entered against me on the
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21 grounds that the judgment is void for lack of personal jurisdiction as I was not validly served so that

22 this case can be heard on its merits, as the law favors.

23 I declare under penalty of perjury under the laws of the United States of America and the
24
State of _____ that the foregoing is true and correct and that this Declaration was executed on
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26 __________________,at ______________________________, ________. Write in date you

27
signed Declaration and city and state where you signed Declaration.
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 Dated________________________ _____________________________________________
NAME OF PERSON SIGNING DECLARATION
2

10

11

12

13

14 PROOF OF SERVICE

15 I am over the age of 18 and not a party to this action.

16
I am a resident of or employed in the county where the mailing occurred; my
17 business/residence address is: ADDRESS OF PERSON SERVING PAPERS.

18 On ____________________ I served the foregoing document(s) described as: NOTICE OF

MOTION AND MOTION TO VACATE JUDGMENT; MEMORANDUM OF POINTS AND
19
AUTHORITIES; DECLARATION OF _________, EHXIBITS to the following parties:
20

21 NAME AND ADDRESS OF ATTORNEY FOR OTHER PARTY OR OTHER PARTY

22

23 [X] (By U.S. Mail) I deposited such envelope in the mail at _______,
California with postage thereon fully prepaid. I am readily familiar with the
24 firm’s practice of collection and processing correspondence for mailing. Under
the practice it would be deposited with the U.S. Postal Service on that same
25 day with postage thereon fully prepaid at _________, California in the
26 ordinary course of business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is
27 more than one day after date of deposit for mailing in affidavit.
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NOTICE OF MOTION AND MOTION TO VACATE JUDGMENT UNDER RULE 60(b)(4)
1 [ ] (By Personal Service) I caused such envelope to be delivered by hand via
messenger service to the address above;
2
[ ] (By Facsimile) I served a true and correct copy by facsimile during regular
3
business hours to the number(s) listed above. Said transmission was reported
4 complete and without error.

5
I declare under penalty of perjury under the laws of the United States of America and the
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State of ____ that the foregoing is true and correct.
7
DATED: ______________ _________________________________________
8 NAME OF PERSON SERVING PAPERS
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