UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
February 20, 1969
ALBERT A. TAFT, PLAINTIFF-APPELLANT,
DONELLAN JEROME, INC., DEFENDANT-APPELLEE
Kiley, Fairchild and Kerner, Circuit Judges.
KERNER, Circuit Judge.
Plaintiff filed suit in the United States District Court for the Southern District of Indiana to enjoin enforcement of a judgment obtained by the defendant in United States District Court for the Northern District of Illinois. The District Court dismissed the complaint and plaintiff appeals.
In 1953, Donellan, the defendant herein, filed suit in the United States District Court for the Northern District of Illinois against Trylon Metals, Inc., John Buckley and Albert Taft, the plaintiff herein, to recover the cost of merchandise shipped to Trylon on the basis of certain misrepresentations. The marshal's return of service showed personal service on Taft. However, Taft did not appear. As a result, a default judgment was entered against Taft in 1953 in the amount of $9,423.16.
In 1966, Donellan sought to revive and enforce the judgment in the United States District Court for the Northern District of Ohio. Taft opposed revival by filing a motion to vacate under Rule 60(b) of Federal Rules of Civil Procedure,*fn1 which motion was denied.*fn2
In November of 1966 Taft brought an action in the United States District Court for the Northern District of Illinois under Rule 60(b) to vacate the default judgment. The court denied the motion for failure to comply with local Rule 7, designation of a member of the local bar to receive service. A motion to vacate that order was also denied.*fn3
Taft, then, filed this action in the United States District Court for the Southern District of Indiana to enjoin enforcement of the judgment and to award Taft $5,000 compensatory damages and $5,000 punitive damages.*fn4 Taft appeals from the granting of defendant's motion to dismiss.
Plaintiff has an adequate remedy at law and since he failed to exhaust his legal remedies under Rule 60(b) (4), he should not be allowed to bring an equitable action in another jurisdiction.
Plaintiff attacks the 1953 judgment on two bases: lack of jurisdiction over the person and fraud on the court. Certainly, under F.R.Civ.Pro. 60(b) (4), plaintiff may attack the judgment for lack of jurisdiction over the person at any time since a judgment rendered without jurisdiction over the person would be void. While a signed return showing service by the marshal is prima facie evidence of valid service, a party may still have his day in court to prove otherwise. Hicklin v. Edwards, 226 F.2d 410 (8th Cir. 1955). While plaintiff does not have an adequate remedy under Rule 60(b) (3) for fraud,*fn5 Rule 60(b) does not "limit the power of the court * * * to set aside a judgment for fraud upon the court." Such motion must be brought in the court which rendered the original judgment. 7 Moore, Federal Practice para. 60.33 at 504-05 (2d ed. 1968).
Therefore, since plaintiff has an adequate remedy at law, this equitable cause of action must be dismissed.
Plaintiff's claim for compensatory and punitive damages is based on his success in voiding the prior judgment and must therefore be dismissed.