A judgment that is "void" may be attacked by motion under rule 60(b), regardless of whether the motion is made within one year or is made later[1], by an independent suit in equity if for some reason the motion under 60(b) would not provide adequate relief[2]; or by denying the validity of the judgment when it is relied on in a subsequent action.

Many decisions characterize a judgment that has been procured by fraud as "void," though more often such a judgment is characterized as "voidable." The distinction has never been very clear, and the purpose of making it not consistently articulated. One purpose of the distinction is to give effect to the concept that the person seeking to nullify the judgment should ordinarily do so by going into the court that rendered the judgment rather than attempting to do so in an independent suit. Hence, it has been said that a "void" judgment can be attacked in an independent suit but a "voidable" one must be attacked by a 60(b) type of motion. But if the proposition is accepted that the applicant for relief should always be required to use a 60(b) motion unless it would not provide adequate relief[3], then the distinction is unnecessary.

At any rate, a judgment rendered by a court that lacks jurisdiction is universally characterized as "void."[4] Traditional doctrine had been that such a judgment is a legal nullity. In modern decisions, however, the problem is recognized as being more complicated[5]. That is, there may be situations in which a court lacking jurisdiction has rendered a judgment that should nevertheless be given effect. In this regard, it is important to distinguish between jurisdiction over the person and jurisdiction over the subject matter.

Jurisdiction over the person may be lacking because the process employed did not give adequate notice to the person against whom judgment was rendered[6], or because that court lacked the required contacts with the case[7], or because, although jurisdiction was secured over a party purporting to represent the person, the representation was fundamentally inadequate[8]. Unless the party somehow learned of the action and made an appearance to contest the exercise of jurisdiction over his person[9], the judgment is void on Due Process grounds in all these circumstances. Many decisions also hold a judgment void where the party obtained actual notice from a court that had sufficient contacts with the case but the process was not in technical compliance with the rules governing mechanics of service[10]. Inasmuch as the party in that situation had actual notice and could have raised his technical objection by special appearance, however, it is not at all clear why the judgment should be treated as void, particularly if the statute of limitations has run on the claim by the time the judgment is attacked.

The problem of lack of subject matter jurisdiction is more complicated. The old vintage rule was that a judgment of a court lacking subject matter jurisdiction was a legal nullity[11]. This rule was subject to various saving qualifications, e.g., that jurisdiction was presumed if the rendering court was one of general jurisdiction, that evidence outside the record was inadmissible to prove lack of jurisdiction, etc. But it had the effect of making judgments potentially vulnerable if any substantial question of subject matter jurisdiction was presented.

The modern view, not yet fully accepted, takes a different approach, at least where the lack of jurisdiction was not entirely obvious. In this approach the critical questions are, first, whether the party against whom the judgment was rendered had opportunity to do so. The questions present themselves in three contexts: where the question of jurisdiction was actually raised in the original action; where the party charged with the judgment appeared in the action, thereby having an opportunity to challenge jurisdiction, but did not raise the jurisdictional question; and where the judgment was rendered by default.

If the question of jurisdiction was raised and adjudicated in the original action, the modern view is that the judgment is not subject to subsequent attack, on the premise that a court has an auxiliary jurisdiction to determine its jurisdiction[12]. Although some authorities suggest that this rule is inapplicable to courts of limited jurisdiction, there seems no reason why it should not be. An erroneous determination of the jurisdictional question can be remedied by review through appeal or extraordinary writ, and failure to pursue such a remedy should foreclose subsequent disputation of the issue.

If the party charged with the judgment appeared in the action, there is almost equally strong reason for holding that the question of subject matter jurisdiction may not be raised by subsequent attack on the judgment[13]. By hypothesis the party had opportunity to raise the jurisdictional defense. There is little reason for saying it should survive the judgment when defenses on the merits would not. Moreover, the party who obtained the judgment may be assumed to suppose it is valid and justifiably guide his subsequent conduct accordingly. Nevertheless, many authorities still adhere to the view that the jurisdictional question can be subsequently raised, by motion under Rule 60(b) or its analogues, by separate suit in equtiy, or by attacking the judgment when it is relied upon by an opponent. However, most of the cases in which such an attack has been allowed have involved no intervening reliance interests and either a judgment of a tribunal of limited jurisdiction or grounds of attack having Constitutional implications[14]. Even in these situations the tendency sems to be to sustain the judgment except when its enforcement would affect the government itself or the administration of a scheme of remedies having significance beyond the immediate parties.

When the judgment has been entered by default, the judgment is usually regarded as open to attack if rendered without subject matter jurisdiction. When the default was entered without Constitutionally adequate notice, the judgment is in any event infirm on Due Process grounds[14]. If notice was adequate, however, it can be said that the party had opportunity to raise the question of subject matter jurisdiction and should be foreclosed from subsequent opportunity to do so. On the other hand, default judgments are in any case disfavored[16], the more so if the rendering court apparently lacked the authority it purported to exercise. The better rule would seem to be to hold such a judgment void, except when it has given rise to substantial interests of reliance of which the person against whom it was rendered was aware[17]. Binding the person to the judgment in the latter situation can be justified not so much on a principle of res judicata as upon one of equitable estoppel[18], for a judgment is not the only basis upon which one's rights may be treated as finally concluded.

1. See Fed. R. Civ. P 60(B)(4).
2. See Sec. 13.15 supra.
3. See Sec. 13.15 at note 2 supra.
4. See 11 Wright & Miller, Federal Practice and Procedure sec. 2862.
5. See Boskey and Brauncher, Jurisdiction and Collateral Attack, 40 Colum. L. Rev. 1006 (1940).
6. E.g., Walker v. City of Hutchinson, 352 U.S. 112, 77 S. Ct. 200, 1 L.Ed. 2d 178 (1956). See also United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y 1970) (injunction by the United States against procuring judgments on the basis of "sewer service"); see Tuerkheimer, Service of Process in New Youk City: A Proposed End to Unregulated Criminality, 72 Colum. L. Rev. 847 (1972).
7. E.g., Hanson v. Dencla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).
8. See Restatement of Judgments Second sec. 86(2) (Tent. Draft No. 2, 1975).
9. If he made an appearance and contested jurisdiction, the determination of that issue is res judicata. See Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 51 S. Ct. 517, 75 L. Ed. 1244 (1931); Durfee v. Duke, 375 U.S. 106, 84 S. Ct. 242, 11 L. Ed. 2d 186 (1963).
10. See, e.g., Central Operating Co. v. Utility Workers of America, 491 F.2d 245 (4th Cir. 1974).
11. See Dobbs, The Decline of Jurisdiction by Consent, 40 N.C.L. Rev. 49 (1961).
12. Durfee v. Duke, 375 U.S. 106, 84 S. Ct. 242, 11 L. Ed. 2d 186 (1963).
13. See generally Dobbs, Beyond Bootstrap: Foreclosing thte Issue of Subject-Matter Jurisdiction Before Final Judgment, 51 Minn. L. Rev. 491 (1967). See Restatement of Judgments sec. 10.
14. Ibid. See, e.g., United States v. Unites States Fidelity & Guaranty Co., 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894 (1940); Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974).
15. See notes 6-8 supra.
16. See sec. 13.14 text following note 5 supra.
17. See Restatement of Judgments sec. 117.
18. See sec. 11.31 supra.

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Sec. 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill or review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

FRCP 60

A motion to set aside a judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b). See Garcia v. Garcia, 712 P.2d 288 (Utah 1986).

There is only an immaterial procedural difference between the relief sought pursuant to Rule 60(b) and the relief sought in an independent action. Hadden v. Rumsey Prods., 196 F.2d 92 (2d Cir. 1952); 7 Moore's Federal Practice, § 60.38(3) (2d ed. 1971))

"A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process." United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990)

Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)).

In order for a judgment to be void, there must be some jurisdictional defect in the court's authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit. Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379.

Allocating the Burden of Proof in Rule 60(b)(4) Motions to Vacate a Default Judgment for Lack of Jurisdiction

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