Orlando Residence, Ltd. v. Kenneth Nelson , 565 F. App'x 212 ( 2014 )


Menu:
  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-1402
    ORLANDO RESIDENCE, LTD.,
    Plaintiff – Appellee,
    and
    FIRST REAL ESTATE DEVELOPMENT CORPORATION; RESOLUTION TRUST
    CORPORATION, as Receiver for Citadel Federal Savings and
    Loan,
    Plaintiffs,
    v.
    KENNETH E. NELSON,
    Defendant – Appellant,
    and
    HILTON HEAD HOTEL INVESTORS; WALLACE H. HUSTAD; MITCHELL A.
    ANDERSON; ALBERICI/DENVER; CLELAND CONSTRUCTION COMPANY;
    PARRISH   PLUMBING   COMPANY;   BAILEY   SPECIALITIES;    B&B
    CONTRACTING COMPANY; CROSS COUNTRY CABINET & MILLWORK;
    NOLAND COMPANY; GRINNELL CORPORATION; EASTERN TECHNOLOGIES;
    GRAYBAR ELECTRIC COMPANY; HOWARD B. JONES & SONS; CAPITOL
    MATERIALS; DOVER ELECTRIC COMPANY; MCCONNELL & ASSOCIATES;
    CAMERON & BARKLEY COMPANY; SOUTH CAROLINA TAX COMMISSION,
    Defendants,
    and
    SANWA BUSINESS CREDIT CORPORATION,
    Defendant and Third−Party Plaintiff,
    v.
    RUTH HUSTAD,
    Third Party Defendant.
    Appeal from the United States District Court for the District of
    South Carolina, at Beaufort.   David C. Norton, District Judge.
    (9:89-cv-00662-DCN)
    Argued:   January 28, 2014                   Decided:     April 7, 2014
    Before DUNCAN    and   FLOYD,   Circuit   Judges,   and   DAVIS,   Senior
    Circuit Judge.
    Affirmed by unpublished opinion. Senior Judge Davis wrote the
    opinion, in which Judge Duncan joined. Judge Floyd wrote a
    separate opinion dissenting in part.
    ARGUED: Gary Andrew Ahrens, MICHAEL, BEST & FRIEDRICH LLP,
    Milwaukee, Wisconsin, for Appellant.      Eugene N. Bulso, Jr.,
    LEADER, BULSO & NOLAN, PLC, Nashville, Tennessee, for Appellee.
    ON BRIEF: Joseph Louis Olson, MICHAEL BEST & FRIEDRICH LLP,
    Milwaukee, Wisconsin, for Appellant.      Paul J. Krog, LEADER,
    BULSO & NOLAN, PLC, Nashville, Tennessee, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    DAVIS, Senior Circuit Judge:
    Appellant Kenneth Nelson appeals the district court’s entry
    of   a       four   million       dollar    judgment      against      him    based     on   his
    knowing, intelligent and voluntary execution of a confession of
    judgment.           The    principal       issue       presented,      among    others,       is
    whether,        under       the    circumstances         shown    in    the    record,       the
    district court’s 1993 order conditionally dismissing this action
    effectively terminated the case such that the court lacked the
    power to enter a judgment against Nelson nearly twenty years
    later.        The     district      court    ruled      that     it    had    the   power     to
    entertain the request for judgment and we discern no error of
    law or abuse of discretion. Accordingly, we affirm.
    I.
    A.
    In     December          1986,     Nelson      guaranteed       a     real     estate
    construction loan for more than $7 million made to his limited
    liability company, Hilton Head Hotel Investors (HHHI). 1 In August
    1988, upon HHHI’s default, the lender, Independence Federal Bank
    (“the        Bank”)       filed    this    suit    in    South    Carolina      state    court
    against HHHI and the guarantors; the defendants removed the case
    1
    Nelson jointly guaranteed the loan with his co-venturer,
    Wallace H. Hustad, who is not a party to this appeal.
    3
    to   federal   court.     The   Bank’s       appointed    receiver,     Resolution
    Trust Corporation (RTC), was later substituted as plaintiff.
    In due course, the district court entered summary judgment
    allowing a foreclosure of the liens securing the indebtedness.
    After an interlocutory appeal to this Court by defendants was
    withdrawn, the claims against the guarantors was set for trial
    in June 1993. On July 13, 1993, however, the parties having
    notified the district court that a settlement had been achieved,
    the court entered an order conditionally dismissing the case.
    The order stated in part:
    The court having been advised by counsel for                        the
    parties that the above action has been settled:
    IT IS ORDERED that this action is hereby dismissed
    without costs and without prejudice to the right, upon
    good cause shown within ninety (90) days, to reopen
    the action if settlement is not consummated.
    J.A. 49. A July 14, 1993 entry in the district court’s docket
    states: “case closed.”
    A few months later, at the parties’ request, the court re-
    opened the case, although the docket contains no formal order
    “re-opening”    the     case.   Then,    on    October    14,   1993,   the     court
    entered   a    second     order   conditionally          dismissing     the     case,
    stating in part:
    On July 13, 1993, this Court entered an order
    dismissing this case without costs after being advised
    by counsel that this matter had been settled. The
    court was also advised that one of the terms of the
    settlement was the completion of the previously
    4
    ordered sale of the real and personal property which
    is the subject of this action. The Court is now
    advised that the parties have been unable to complete
    the documentation of the settlement but that the
    parties are endeavoring to do so as expeditiously as
    possible.
    IT IS THEREFORE ORDERED that this action is hereby
    dismissed, upon good cause shown, and the right to
    reopen the action if settlement is not consummated is
    to be held open for an additional period of time not
    to exceed December 31, 1993. It is the Court's
    expectation that the settlement will be consummated
    within this period and the property which is the
    subject of this action will have been sold by that
    time at public auction as previously ordered by the
    Court.
    J.A. 50-51.
    On the basis of the above October 14, 1993 order, Nelson
    contends that the case finally terminated as of the December 31,
    1993 deadline set forth therein. Indeed, as Nelson contends, and
    as the district court found, no party formally moved to re-open
    the case before the December 31 deadline. Nevertheless, RTC did
    file, on or about December 23, 1993, a so-called “Motion to
    Clarify,” in which it sought certain rulings from the district
    court related to the impending auction of the real and personal
    property at issue in the case. Thereafter, over the course of
    several months in 1994, the district court conducted at least
    one hearing and it ruled on a number of issues regarding the
    foreclosure   sale.   The   sale   of   the   subject   property   at   the
    foreclosure auction in mid-1994 garnered three million dollars
    5
    and the court confirmed the report of sale by order entered on
    July 5, 1994.
    In     November          1994,        well        after        confirmation           of     the
    foreclosure             auction,        the         parties           finally           executed     a
    comprehensive            Settlement       Agreement.            The     Settlement         Agreement
    stated,       in    part,       that    as     of       June    1,     1993,       HHHI    owed     RTC
    principal         and    interest       on    promissory         notes       in    the     amount   of
    $14,495,949.81. As a part of the settlement, Nelson and Hustad
    (the       sole    members      of     HHHI)      each        agreed    to    make       installment
    payments to RTC totaling $80,000 over the course of two years.
    To secure their performance, Nelson and Hustad each signed a
    confession          of     judgment          in         the     amount        of     $4     million.
    Specifically,            the    parties       agreed          that     if    either       Nelson    or
    Hustad,       respectively,            missed       a    payment,       RTC       could    file     the
    relevant      confession         of     judgment         with     the       district       court    and
    obtain       judgments         thereon.      On     the       other    hand,       if     Nelson    and
    Hustad made all of the promised payments, the confessions of
    judgment would be delivered to their attorneys.
    Thereafter, for the nearly seventeen years from November
    1994 through September 2011, no activity of consequence occurred
    before the district court. 2 The district court never entered a
    2
    Hustad’s confession of judgment was filed in the district
    court on May 21, 1997, but there is no indication in the record
    that judgment was ever sought or entered thereon.
    6
    final    order   or   judgment        as   contemplated        by    Federal    Rules      of
    Civil Procedure 54 and 58 after the foreclosure sale and the
    parties’ execution of the Settlement Agreement. The Settlement
    Agreement was never presented to the court or embodied in a
    court order.
    B.
    The    dormancy      of    the    case       ended   on   September       19,    2011,
    during the pendency of other litigation in other courts between
    the parties, as described infra n.3. Appellee Orlando Residence,
    Ltd., asserting its status as a judgment creditor of Nelson and
    identifying      itself    as    the       owner     of   Nelson’s        confession       of
    judgment,    filed    a   motion       for    substitution          to   replace     RTC   as
    plaintiff, and for the entry of Nelson’s confession of judgment. 3
    3
    ORL attached several documents to support its motion for
    substitution and for entry of the Nelson confession of judgment.
    It provided an Assignment of Judgment executed by Asset Recovery
    & Management Services, L.P. (ARMS). In the Assignment, dated
    November 21, 1995, ARMS stated that it had became the successor-
    in-interest to RTC on February 23, 1995 with regard to Nelson’s
    confession of judgment, and that it was then assigning its
    rights to GP Credit Company. Specifically, ARMS assigned “all
    rights as Plaintiff and judgement [sic] creditor in the above-
    captioned cause, along with any and all right to payment of the
    debts which were the subject of said judgement [sic], and all
    collateral securing repayment of said debts.” J.A. 98.
    In addition, ORL provided an order from the Ozaukee County
    Circuit Court in Wisconsin, stating that “Ownership of the South
    Carolina judgment GP Credit holds against Kenneth E. Nelson
    pursuant to the Assignment of Judgment attached hereto . . . is
    hereby divested from GP Credit Co., LLC and is vested in Orlando
    Residence, Ltd.” J.A. 100. Nelson had appealed the Ozaukee
    (Continued)
    7
    Nelson did not oppose ORL’s motion for substitution, and
    the district court granted the motion. The court also entered
    the confession of judgment. The next day, on October 18, 2011,
    Nelson filed a motion to strike the confession of judgment. A
    few weeks later, ORL filed a motion to enter judgment, which
    Nelson opposed. After full briefing on a host of issues, the
    district court held a hearing on December 14, 2011.
    On August 15, 2012, the district court entered an order
    directing the clerk to enter judgment against Nelson in favor of
    ORL for four million dollars and the clerk entered judgment on
    that   date.   Nelson    timely   moved     to   alter,   amend,   vacate,   and
    dismiss   pursuant      to   Federal   Rules     of   Civil   Procedure   59(e),
    12(b)(1) and 12(h)(3), and in the alternative for relief from
    judgment pursuant to Rule 60(b).
    County Circuit Court order. During the pendency of the instant
    appeal before this Court, the Supreme Court of Wisconsin
    declined to disturb the order of the Ozaukee County Circuit
    Court. See January 14, 2014 28(e) letter from E. Bulso, Jr.,
    Esq., (attaching order in Orlando Residence, Ltd. v. Nelson,
    Case No. 2012AP001528 (Wis. Ct. App. Nov. 26, 2013)). Relatedly,
    an opinion from one of our sister circuits informs us that GP
    Credit is a company that was under Nelson’s dominion and control
    and, essentially, was his “alter ego.” Orlando Residence, Ltd.
    v. GP Credit Co., LLC, 
    553 F.3d 550
    , 558 (7th Cir. 2009). This
    finding came in the course of ORL’s attempt to enforce a
    judgment obtained in a Tennessee state court against Nelson.
    ORL’s showing satisfied the district court that it was the
    rightful owner of the Nelson confession of judgment.
    8
    On March 15, 2013, the district court denied Nelson’s post-
    judgment motions, finding, among other things, that its October
    1993 dismissal order did not deprive the court of the power to
    enter    judgment        on    the     confession      of    judgment     that     it   found
    Nelson     had    executed       knowingly,         intelligently      and    voluntarily.
    Orlando     Residence,         Ltd.     v.   Hilton     Head      Hotel   Investors,      No.
    9:89–cv–0662, 
    2013 WL 1103027
     (D.S.C. Mar. 15, 2013). The court
    also rejected Nelson’s numerous arguments for relief under Rule
    60(b)      regarding          limitations,      the        amount    of   judgment,       and
    personal jurisdiction. 
    Id.
     Nelson timely appealed.
    II.
    As    he    did    before       the    district       court,   Nelson     advances    a
    myriad     of     arguments       in    support       of    his     assertion      that   the
    judgment entered against him must be vacated. His overarching
    assertion        is    straightforward:         the     district      court     lacked    the
    power to enter judgment against him because, no party having
    moved to reopen the case as of December 31, 1993, the court’s
    October     14,       1993    conditional      dismissal         effectively     terminated
    the action on that date and thereby deprived the district court
    of   all    power       over    the    case,    save       the    exercise    of    limited,
    ancillary jurisdiction, such as supplementary proceedings under
    Federal Rule of Civil Procedure 69. Nelson further avers that
    although a rightful owner of the confession of judgment might be
    able to institute a new action against him in a proper court,
    9
    his defenses to such an action foreclose relief and, in any
    event, require a plenary proceeding consonant with due process
    to adjudicate his liability.
    Nelson’s    specific       contentions      include    the     following:      (1)
    the court lacked subject matter jurisdiction both because (a)
    the   case     fully     ended     as   of     December     31,    1993    without     a
    reservation of jurisdiction and (b) ORL lacked standing; (2) the
    court lacked personal jurisdiction over Nelson; (3) ORL failed
    to file and serve a summons to enforce the Settlement Agreement;
    (4)   the    amount    of    the    judgment      was     excessive       under   South
    Carolina law; and (5) the statute of limitations barred entry of
    judgment on the confession. The district court rejected all of
    these arguments, as do we.
    A.
    Nelson     first      contends    that      the     district    court       lacked
    subject      matter    jurisdiction          to   enforce    his     confession      of
    judgment, and therefore the judgment is void under Federal Rule
    of Civil Procedure 60(b)(4).
    We review a district court’s findings of fact with respect
    to subject matter jurisdiction under a clear error standard, so
    long as the issues are not “intertwined with the facts central
    to the merits of the plaintiff’s claims.” United States ex rel.
    Vuyyuru v. Jaddhav, 
    555 F.3d 337
    , 348 (4th Cir. 2009) (citation
    10
    omitted). We review any legal conclusions drawn from the facts
    de novo. Id.
    1.
    Nelson’s initial challenge is based on his assertion that
    the    district    court    lost      jurisdiction      over    the    case        when   it
    entered a final order of dismissal in 1993. Like the district
    court, we disagree with Nelson’s interpretation of the record.
    To   be    sure,    “[f]ederal      courts       are    courts        of     limited
    jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 
    511 U.S. 375
    , 377 (1994). We should presume that an action “lies
    outside this limited jurisdiction” and therefore “the burden of
    establishing       the     contrary     rests     upon    the        party        asserting
    jurisdiction.”      
    Id.
        In    Kokkonen,      which    is    the    centerpiece         of
    Nelson’s jurisdictional challenge, the Supreme Court held that
    where a party sought to enforce a settlement agreement after it
    had filed a “Stipulation and Order of Dismissal with Prejudice”
    executed by all the parties to the action pursuant to Fed. R.
    Civ.   P.   41(a)(1)(ii)        and   endorsed    by    the    district       court,      it
    could only do so if the court had incorporated the settlement
    agreement into the final order, or otherwise expressly reserved
    jurisdiction. 
    Id. at 381-82
    . Nelson argues that Kokkonen applies
    here, that the conditional dismissal of the case on October 14,
    1993 (effective, according to Nelson, on December 31, 1993) is
    indistinguishable from the dismissal in Kokkonen, and as in that
    11
    case, the district court was divested of jurisdiction after the
    December 31, 1993 deadline expired.
    Nelson is mistaken. Unlike the circumstances in Kokkonen,
    there was no “Stipulation and Order of Dismissal with Prejudice”
    filed in this case or any other definitive order unambiguously
    terminating this action. Nelson contends that we should treat
    the district court’s October 14, 1993 order as a final judgment
    dismissing the suit, but there is no warrant for us to do so. In
    Kokkonen,       the    stipulation      of   dismissal          was    executed   by     the
    parties,       filed    pursuant   to    Federal         Rule    of    Civil    Procedure
    41(a)(1)(ii), and was independently “so ordered” by the district
    court. 
    Id. at 377
    . Here, the district court ordered that the
    case would be conditionally dismissed, clearly on the assumption
    that     the    settlement      agreement         and    sale     of    the    foreclosed
    property were finalized by December 31, 1993. See supra p. 5
    (“It   is      the    Court's   expectation       that    the     settlement      will    be
    consummated [by December 31, 1993] and the property which is the
    subject of this action will have been sold by that time at
    public auction as previously ordered by the Court.”). As the
    record      plainly     indicates,   and      the       district       court   explicitly
    recognized, however, this did not happen.
    Instead, the court continued to enter orders regarding the
    parties’ claims through 1994, specifically orders respecting the
    foreclosure sale of property at issue in the suit. Importantly,
    12
    this began with a “Motion to Clarify” filed on December 23,
    1993,       asking    the    district   court   to   make      procedural    and
    substantive changes to the provisions for the foreclosure sale
    previously ordered; these matters were of sufficient substance
    to   necessitate       the   district   court   holding   a   hearing   on   the
    issues.
    Nelson argues that the district court’s 1994 orders did not
    pertain to the claims governed by the Settlement Agreement, and
    were       solely    designed   to   enforce    an   earlier     judgment    not
    involving Nelson or Hustad as guarantors. Nelson’s arguments are
    belied by the record: the Settlement Agreement expressly held
    Nelson and Hustad accountable for assisting with the foreclosure
    sale, i.e., the subject of the district court’s 1994 orders.
    Moreover, although the “Motion to Clarify” was not labeled as a
    motion to reopen the case, that is exactly how the district
    court and the parties treated it, and with good reason.
    Among other issues to be addressed, the creditors sought
    (and obtained) a limitation on the commissions to be awarded to
    the Office of the United States Marshal for its services related
    to the management of the foreclosure auction. See S.A. 30-42.4 To
    the extent that a reduction in commissions increased the yield
    4
    We shall grant ORL’s unopposed motion for leave to file
    the Supplemental Appendix and deny leave to file a surreply.
    13
    from the foreclosure sale to the lenders, such a reduction could
    only redound to the benefit of the guarantors, as well. Thus,
    any suggestion by Nelson that he was uninterested in the court’s
    consideration of the matters raised in the “Motion to Clarify”
    rings hollow.
    The procedural posture of the case after December 31, 1993
    mirrors what happened earlier in the case. The district court
    had    entered    a       nearly   identical      order     on   July   13,       1993,
    dismissing the case and allowing for re-opening within 90 days.
    Despite the ostensible 90-day window for reopening, the district
    court acknowledged that it nonetheless reopened the case 93 days
    after the case was closed. See Home Port Rentals, Inc. v. Ruben,
    
    957 F.2d 126
    , 131 (4th Cir. 1992) (“It is peculiarly within the
    province of the district court . . . to determine the meaning of
    its own order.”). Furthermore, unlike the clerk’s entry closing
    the case when the July dismissal order was entered, no such
    clerk’s entry is coupled with the October 14, 1993 order.
    Notably, the Settlement Agreement was not executed until a
    year after the entry of the October 14, 1993 order. After that,
    the district court neither entered a final order of dismissal,
    as mentioned above, nor did it treat the October 14, 1993 order
    as final. See Anderson v. Stephens, 
    875 F.2d 76
    , 80 n.8 (4th
    Cir.    1989)    (“We      are,    of   course,    mindful       of   the   inherent
    deference   due       a    district     court   when   it    construes      its    own
    14
    order.”). Thus, to hold on this record that the district court’s
    October 14, 1993 order ripened into a final judgment on December
    31, 1993 would be a fiction of our own creation and contrary to
    the treatment by the district court of its own order.
    In sum, before the entry of the judgment by confession (the
    order before us for review), there had not been a final judgment
    or final order of dismissal in this case. The district court had
    neither relinquished nor otherwise lost jurisdiction. Unlike the
    circumstances in Kokkonen, the district court in this case was
    not asked to enforce a settlement agreement after the case had
    been unambiguously and finally dismissed. From the perspective
    of the district court, moreover, the coincidence that Nelson
    executed his confession of judgment incident to a settlement of
    litigation       was   just    that:     an    irrelevant    coincidence.     The
    district court was obliged under South Carolina law merely to
    determine whether Nelson had executed the confession of judgment
    knowingly, intelligently and voluntarily. See S.C. Code § 15-35-
    350.       He   did.   The    court    was    justly   unconcerned     with   the
    background        circumstances       that     prompted     him   to    do    so.
    Accordingly, this case falls well outside the rule of Kokkonen,
    and we reject Nelson’s contention to the contrary. 5
    5
    A brief word about the dissent is in order. One would have
    thought that if it were true that this case requires “nothing
    more than mechanical application of the Supreme Court’s decision
    (Continued)
    15
    2.
    With   regard   to   the   second   subject   matter   jurisdiction
    challenge, based on a lack of standing, Nelson contends that ORL
    in Kokkonen v. Guardian Life Insurance Co. of America, 
    511 U.S. 375
     (1994),” post, at 29, the dissenting opinion would have been
    no more than the page and one half it takes to say that. But the
    dissent goes on for another fourteen pages excoriating the
    majority’s reasoning. One is left to wonder, Why is that? What
    is it that bothers the dissent so much? The answer is fairly
    obvious: the district court treated the “Motion to Clarify” as a
    motion to reopen the case, and, as the dissent acknowledges, we
    do not apply a “magic words” rule in these circumstances. Post
    at 34 (acknowledging that “papers filed with the court need not
    contain any ‘magic words’ to effectuate their purposes”). We
    further agree with the dissent that “RTC’s decision to caption
    the Motion to Clarify as it did—rather than as a “Motion to
    Reopen”—is not fatal to ORL’s current position.” Post, at 34.
    We also agree with the dissent that this case is a “. . .
    convoluted procedural and substantive morass[.]” Post, at 42. But
    in addition to what the documents in the record tell about the
    case, we have the benefit of knowing what the district court did
    in its management of the case. Despite the dissent’s scolding,
    we remain convinced that our interpretation of the record is the
    correct one. The dissent is free, of course, even in this
    “convoluted . . . morass” of a case, to apply its de novo
    standard of review to the pure legal issue of whether, assuming
    the “Motion to Clarify” could not plausibly be treated as a
    motion to reopen, the district court lost jurisdiction on
    January 1, 1994. We respectfully suggest, however, that the
    dissent is not free (no matter the number of “telltale clues” it
    can or cannot identify, see post, at 35) to apply a de novo
    standard of review to the antecedent question: whether the
    district court could plausibly treat the “Motion to Clarify” as
    a motion to reopen. If an abuse of discretion standard of review
    does not apply to that question, then it is difficult to imagine
    where it would ever apply. There was no abuse of discretion
    shown here, as the dissent, itself, concedes. Post, at 33
    (“[T]he majority accords much due deference to the district
    court’s province to interpret its own orders . . . ; that is the
    law surely enough, and I take no issue with this approach.”).
    16
    has    failed   to     provide    sufficient      evidence      to    establish      the
    transfer of an interest in the confessed judgment from RTC to
    ORL (via ARMS and GP Credit). This argument also fails.
    Article III standing requires a showing of three elements:
    first, the plaintiff has “suffered an injury in fact”; second, a
    “causal connection between the injury and the conduct complained
    of”; and third, it is “likely, as opposed to merely speculative,
    that    the   injury    will     be   redressed      by   a   favorable    decision.”
    Lujan    v.   Defenders    of    Wildlife,     
    504 U.S. 555
    ,   560-61   (1992)
    (internal quotations marks and citations omitted). Nelson takes
    issue with the first of these – that ORL has suffered an injury.
    Nelson correctly states that “[w]ithout an assignment, a
    nonparty to a contract does not have standing to sue on the
    contract.” Egrets Pointe Townhouses Prop. Owners Ass’n, Inc. v.
    Fairfield Communities, Inc., 
    870 F. Supp. 110
    , 117 (D.S.C. 1994)
    (applying     South     Carolina      law).    But    Nelson’s      insistence      that
    there has not been a proper assignment does not make it so.
    In addition to the documents establishing the conveyance of
    the    confessed     judgment     from   RTC    to    ARMS     to    GP   Credit,   ORL
    presents a state court judgment granting title to and possession
    of the confession of judgment to ORL. See Orlando Residence,
    Ltd. v. Nelson, 
    834 N.W.2d 416
    , 424 (Wis. Ct. App. 2013), appeal
    denied Orlando Residence, Ltd. V. Nelson, Case No. 2012AP001528
    17
    (Wis. Nov. 26, 2013). The Wisconsin state courts have spoken
    conclusively as to the ownership of the confessed judgment:
    The Nelsons claim that the turnover motion is moot
    because the underlying judgments have expired and are
    unenforceable. Additionally, the Nelsons claim that
    property already taken from them exceeds the amount of
    Orlando's judgment.
    In response to the Nelsons’ arguments, Orlando claims
    that it is immaterial whether or not the judgments
    have expired, that Orlando's Wisconsin judgment is
    valid and enforceable, and that Orlando's judgment has
    neither expired nor been satisfied.
    Orlando is right. That is, there is nothing in
    §816.08, Wis. Stats., limiting Orlando’s right to
    obtain an order assigning ownership of the South
    Carolina and Oklahoma judgments to it. As indicated in
    part II A above, Orlando’s Wisconsin judgment is valid
    and enforceable. The Nelsons’ claim that the value of
    property already taken from them exceeds the amount of
    the judgment is unsupported by any evidence and is
    contrary to all available information.
    ***
    For the above stated reasons, the court hereby orders
    the following:
    ***
    (4) Orlando’s Motion for a Turnover of the GP Credit
    Co., LLC property is granted, and the court will sign
    Orlando’s proposed Order forthwith.
    J.A. 265.
    Nelson’s contentions about the validity or applicability of
    the   Wisconsin      state   court     judgment      amount    to    no    more   than
    splitting    hairs.     Nelson    makes       much    of    the     fact   that    the
    Wisconsin    court    referred    to    the   confession      of    judgment      as   a
    “judgment”    rather    than     the   “Settlement         Agreement/Confession.”
    18
    App.   Br.       36-37.      There    is   no     meaningful     distinction       in   these
    terms, and it is evident from the transfer paperwork provided by
    ORL that the interest transferred was whatever the predecessor-
    in-interest had – regardless of how it was described in court
    papers.         This   is    evident       from    the   broad       description    in    the
    Wisconsin judgment (“the GP Credit Co., LLC property”). 6
    The district court credited the evidence provided by ORL
    that       it   was    the    successor-in-interest         to       the   holder   of    the
    confession of judgment in the original case. Here, ORL has met
    its burden based on its pleadings and attached documentation.
    Nelson has done nothing more than point to the evidence adduced
    and stating that it is not enough. But it is enough. There is
    nothing in the record which would lead this Court to think “with
    [a]    definite        and     firm    conviction        that    a    mistake   has      been
    committed.” Simmons v. United Mortgage & Loan Inv., LLC, 
    634 F.3d 754
    , 762 (4th Cir. 2011) (quoting United States v. U.S.
    Gypsum Co., 
    333 U.S. 364
    , 395 (1948)), and we decline Nelson’s
    invitation to do so.
    6
    Nelson also makes a host of arguments regarding the
    admissibility of certain documents and the sufficiency of the
    evidence as to the transfer of the confession of judgment
    between RTC and ARMS. Nelson made none of these arguments to the
    district court and has therefore waived them. See Robinson v.
    Equifax Info. Servs., LLC, 
    560 F.3d 235
    , 242 (4th Cir. 2009).
    19
    B.
    Nelson     next    contends         that       the    district     court      erred      by
    failing    to    conduct       a   plenary        proceeding       and    that      it    lacked
    personal jurisdiction over him. Again, we disagree.
    1.
    Federal     courts          have     the       power       to    enter       confession
    judgments, as has been recognized by courts time and again. 
    28 U.S.C. § 1874
    ; see D. H. Overmyer Co. Inc., of Ohio v. Frick
    Co., 
    405 U.S. 174
    , 176 (1972) (“The cognovit is the ancient
    legal device by which the debtor consents in advance to the
    holder’s obtaining a judgment without notice or hearing, and
    possibly even with the appearance, on the debtor’s behalf, of an
    attorney designated by the holder.”); Millner v. Norfolk & W. R.
    Co.,   
    643 F.2d 1005
    ,      1009    (4th       Cir.    1981).     As    we   discussed
    earlier, South Carolina law explicitly allows for the entry of
    confession judgments. S.C. Code § 15-35-350.
    Nelson insists that he should have received the benefit of
    a plenary proceeding in order to present his defenses in a full
    evidentiary hearing. But this argument ignores the law allowing
    for this type of proceeding where authorized by state law in a
    diversity    action,       and      where       the    waiver     of    full    service         was
    executed by       the    debtor.       Where      there      is   clear    and      convincing
    evidence        that     the       waiver        was        voluntary,        knowing,          and
    intelligently       made,       then      the   confession        of    judgment         will   be
    20
    upheld. Overmyer, 
    405 U.S. at 185-87
    , F.D.I.C. v. Aaronian, 
    93 F.3d 636
    , 640 (9th Cir. 1996).
    Millner is instructive on this point. There, Millner filed
    suit against his employer, and his employer then pointed to a
    negotiated settlement agreement as a bar to the action and a
    finding of liability. 
    643 F.2d at 1006-07
    . The court held a
    hearing     on    the       settlement     agreement,         taking     evidence     from
    several witnesses and examining many documents. 
    Id. at 1007-08
    .
    The    district        court   held     that      the    settlement      agreement        was
    binding, and entered an order of dismissal with prejudice. 
    Id. at 1008
    . Unlike Nelson, however, Millner produced substantial
    evidence    that       he   had    revoked      his     consent   to     the   settlement
    agreement,       and    that   there     was    never     a   meeting     of   the   minds
    between his counsel and the employer. 
    Id. at 1009-10
    . Millner
    also disputed the number of claims resolved in the settlement
    agreement, and pointed out that he never signed the release. 
    Id. at 1010
    .
    Nelson does not, and cannot, generate a dispute that the
    Settlement       Agreement        appropriately         binds     him.    Nelson     is     a
    sophisticated business person with multiple degrees in business
    administration and finance. He is licensed as a certified public
    accountant in Wisconsin, and has been a real estate broker for
    over   30   years.       Nelson    initialed       each    page    of    the   Settlement
    Agreement,       including        the   pages     describing      the    confession       of
    21
    judgment, and his counsel also signed an affidavit that he had
    explained the terms of the Settlement Agreement to Nelson.
    Nelson      executed       the       Settlement         Agreement          nearly      twenty
    years    ago     with   full     knowledge            of   what   he       was      signing,    and
    received a release of claims worth more than $14 million. Nelson
    cannot take advantage of that benefit without also complying
    with the terms to which he agreed, including his confession of
    judgment. Accordingly, we reject, as did the district court, his
    assertion that he was entitled on this record to an evidentiary
    hearing.
    2.
    Nelson’s objection based on an alleged lack of personal
    jurisdiction       likewise      fails.          The       district    court         found     that
    Nelson     had    submitted       to       the        personal      jurisdiction          of    the
    district       court    based    on        the    confession          of    judgment.          South
    Carolina law holds that consent to the confession of judgment
    was   equivalent        to   a   voluntary             appearance.         A     confession      of
    judgment    “is    essentially         a    voluntary         act;     it      is    a   voluntary
    submission to the jurisdiction of the court, giving by consent
    and   without     the    service       of    process         what     could         otherwise    be
    obtained by summons and complaint, and other formal proceedings
    . . . .” Triangle Auto Spring Co. v. Gromlovitz, 
    242 S.E.2d 430
    ,
    431 n.1 (S.C. 1978) (quoting 49 C.J.S. Judgments § 134 (1947)).
    22
    Nelson           does        not    dispute     that        he   signed       the    Settlement
    Agreement         which      called        for   the       filing      of    the    confession   of
    judgment         in    the    district         court.       J.A.      76    (the    confession   of
    judgment will be “in a form suitable for recording with the
    Clerk of Court for the United States District Court for the
    District of South Carolina”). As ORL points out, the confession
    itself      is    captioned             with   the    name       of    the   relevant      district
    court.
    Nelson simply recycles his previous arguments regarding the
    court’s          lack        of     jurisdiction            to        continue       to    exercise
    adjudicative authority over the case following the Settlement
    Agreement.            Nelson’s          arguments         lack     merit     for     the    reasons
    discussed above. Nelson consented to the personal jurisdiction
    of the court by way of the confessed judgment, and cannot deny
    it now. The district court did not err or otherwise abuse its
    discretion in finding that it had personal jurisdiction over
    Nelson. 7
    III.
    Nelson’s alternative claims relate to the denial of his
    Rule 60(b) motion for relief from the judgment. We review the
    7
    Indeed, as the case never came to an end by dismissal
    order or otherwise, just as the district court retained subject
    matter jurisdiction, it also retained personal jurisdiction over
    the original defendants, including Nelson.
    23
    denial of a 60(b) motion for abuse of discretion. Aikens v.
    Ingram, 
    652 F.3d 496
    , 501 (4th Cir. 2011) (en banc).
    A.
    Nelson’s     next    argument     is    that   the    amount     due   in    the
    confessed judgment ($4 million) impermissibly exceeds the amount
    that     was    originally       due     under    the     Settlement      Agreement
    ($80,000), in violation of South Carolina law. We disagree.
    South Carolina law on confessed judgments requires that:
    Before a judgment by confession shall be entered a
    statement in writing must be made and signed by the
    defendant and verified by his oath to the following
    effect:
    (1) It must state the amount for which judgment may be
    entered and authorize the entry of judgment therefor;
    (2) If it be for the money due or to become due, it
    must state concisely the facts out of which it arose
    and must show that the sum confessed therefor is
    justly due or to become due; and
    (3) If it be for the purpose of securing the plaintiff
    against   a  contingent  liability,   it  must   state
    concisely the facts constituting the liability and
    must show that the sum confessed therefor does not
    exceed the liability.
    S.C.   Code     §   15-35-360.     The    district      court    compared     the    $4
    million owed in the confession to the amount stipulated to by
    Nelson    and   HHHI   in    the   Settlement      Agreement:     $14,495,949.81.
    Nelson takes issue with this comparison, maintaining that the
    proper    comparison        is   with    the     amount     he   owed    under      the
    Settlement Agreement ($80,000). Nelson cites to South Carolina
    law holding that liquidated damages provisions exceeding the sum
    24
    originally due on the contract are unenforceable. But, as with
    his     other   arguments,        Nelson       fails          to     read    the     case     law
    carefully. South Carolina holds that where “the sum stipulated
    is    plainly   disproportionate          to       any    probable        damage     resulting
    from breach of contract, the stipulation is an unenforceable
    penalty.” Lewis v. Premium Inv. Corp., 
    568 S.E.2d 361
    , 363 (S.C.
    2002)     (emphasis      added).     Nelson             cites       no    support     for     the
    contention that the proper comparison is between the amount he
    owed    under   the     Settlement       Agreement            and   the     amount    now    owed
    under     the    confession.        Accordingly,                the       “probable     damage
    resulting from breach of contract,” is more appropriately the
    $14 million figure, as it is what RTC was owed under the loan
    agreements originally disputed in the lawsuit.
    The   district     court    did     not          err    or    otherwise       abuse    its
    discretion in ruling that the confession damages were not an
    impermissible penalty.
    B.
    Finally, Nelson contends that the district court erred by
    applying the doctrine of equitable tolling as to limitations.
    Nelson’s argument begins with the faulty premise that South
    Carolina’s      three    year     statute          of    limitations         for     breach    of
    contract     claims,     S.C.     Code    §    15-3-530,            is    applicable        here.
    Nelson again recycles his arguments that under the circumstances
    of this case, the confession of judgment proceedings should be
    25
    deemed     and   treated    as     a    new   action.       As   discussed     above,    we
    reject this theory of the case.
    Nevertheless, Nelson correctly asserts that enforcement of
    the judgment is time-limited. South Carolina law dictates that
    executions of final judgments must issue within ten years. S.C.
    Code § 15-3-530; see Linda Mc Co., Inc. v. Shore, 
    653 S.E.2d 279
    , 282-84 (S.C. Ct. App. 2007). The last payment under the
    Agreement was due on November 1, 1996, which Nelson accepts as
    the last date of a potential breach of the Settlement Agreement.
    Applying the statute of limitations, the confession of judgment
    should have been perfected by November 1, 2006.
    South      Carolina    law       allows      for    equitable   tolling    of     the
    limitations period, however, “where it is justified under all
    the circumstances.” Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr.,
    
    687 S.E.2d 29
    , 33 (S.C. 2009). In Hooper, the Supreme Court of
    South Carolina tolled the statute of limitations for a plaintiff
    who was unable to serve the defendant until limitations had run,
    due in large part to the defendant’s failure to properly list
    its registered agent for service with the Secretary of State.
    Id.   at    33-34.   The     court       held      that    “public    policy    and     the
    interests of justice” warranted equitable tolling. Id. at 34.
    The     district      court       relied      on    Magnolia    North     Property
    Owners’     Association,      Inc.      v.    Heritage      Communities,       Inc.,    
    725 S.E.2d 112
     (S.C. Ct. App. 2012), to determine that equitable
    26
    tolling      was   appropriate         in   this    case.    There,        a    homeowners’
    association        in   a    condo     development        sued    the     developers        for
    various claims surrounding construction defects. 
    Id. at 117
    . The
    developer claimed that because the homeowners’ association did
    not   file    suit      until    May    2003,     limitations       barred       the     claim,
    which    allegedly       accrued       in   March   2000,        when    the    association
    commenced     meetings        and    operations.      
    Id. at 125
    .       However,     the
    facts revealed that the developers effectively controlled the
    homeowners’ association until sometime in September 2002. 
    Id.
    The court held that it found “unpersuasive Appellants’ claim
    that an organization they controlled would have initiated an
    action against itself during this period.” 
    Id.
     Nelson argues
    that the reasoning of Magnolia North does not apply to this case
    because he could not be “disloyal” to GP Credit as GP Credit is
    his “alter ego.” App. Br. 64-65.
    This logic is confounding at best. The exact point of the
    court’s holding in Magnolia North was that the developers would
    hardly     file      suit       against     themselves;          here,     it       would   be
    preposterous       to    think      that    GP   Credit    would        file    a   confessed
    judgment     against        Nelson     because     that    would    amount          to   Nelson
    obtaining a judgment against himself.
    The district court did not abuse its discretion in holding
    that the statute of limitations was tolled for the 18 years GP
    Credit held the confessed judgment, thwarting all efforts by the
    27
    rightful judgment creditors to take possession. Therefore, ORL’s
    filing of the confession of judgment was not time-barred.
    IV.
    We   GRANT   ORL’s   unopposed    motion   for   leave   to   file   the
    Supplemental Appendix and we DENY the motion for leave to file a
    surreply. The judgment of the district court is
    AFFIRMED.
    28
    FLOYD, Circuit Judge, dissenting in part:
    I do not think that the district court maintained subject
    matter jurisdiction over this case once the October 14, 1993
    dismissal order became final on January 1, 1994.     I therefore
    would not reach the merits of ORL’s claim for $4 million based
    on Nelson’s confession of judgment and very respectfully dissent
    to Part II.A.1 of the majority’s opinion.
    I.
    This case requires nothing more than mechanical application
    of the Supreme Court’s decision in Kokkonen v. Guardian Life
    Insurance Co. of America, 
    511 U.S. 375
     (1994), and any attempt
    to meaningfully distinguish it falters under a more exacting
    review.   Although I recognize that the dismissal in Kokkonen was
    pursuant to a stipulation by the parties under Federal Rule of
    Civil Procedure 41(a)(1)(ii), the Supreme Court was clear that
    district courts’ authority in such a situation is no different
    than when dismissal is court-ordered pursuant to Rule 41(a)(2),
    as it was in this case.    In summarizing its holding, the Court
    stated the following:
    The short of the matter is this: . . . . When the
    dismissal is pursuant to Federal Rule of Civil
    Procedure 41(a)(2), which specifies that the action
    “shall not be dismissed at the plaintiff’s instance
    save upon order of the court and upon such terms and
    conditions as the court deems proper,” the parties’
    compliance with the terms of the settlement contract
    (or the court’s “retention of jurisdiction” over the
    settlement contract) may, in the court’s discretion,
    29
    be one of the terms set forth in the order.       Even
    when, as occurred here, the dismissal is pursuant to
    Rule 41(a)(1)(ii) (which does not by its terms empower
    a district court to attach conditions to the parties’
    stipulation of dismissal) we think the court is
    authorized to embody the settlement contract in its
    dismissal order or, what has the same effect, retain
    jurisdiction over the settlement contract[] if the
    parties agree.
    
    Id.
     at 381–82 (emphasis added).
    Thus,     that    “[i]n   Kokkonen,      the   stipulation     of    dismissal
    was executed by the parties, filed pursuant to Federal Rule of
    Civil Procedure 41(a)(1)(ii), and was independently ‘so ordered’
    by the district court[,]” ante at 12, does not differentiate
    Kokkonen from this case for any pertinent purpose.                     The district
    court   in    this    case   maintained     no   greater    authority     than   the
    district court in Kokkonen, and insofar as both district courts
    failed to exercise that authority, the result—a want of subject
    matter jurisdiction—should be the same.
    The majority’s couching of the district court’s October 14,
    1993 order as having “conditionally dismissed” the case, ante
    at 12   (emphasis      deleted),     results     from   picking    language      from
    that order and imputing into it meaning where there is none.
    Plainly      and   simply,   the    order    dismissed     the   action—sans     any
    “if-then”      Boolean-like        operators     and     sans    any     conditions
    precedent—and to characterize the district court’s “expectation
    that the settlement will be consummated” either as a reservation
    of subject matter jurisdiction or as a retention of the power to
    30
    enforce the settlement agreement has zero basis in the law and
    runs smack into the Supreme Court’s central holding in Kokkonen
    and this Court’s cases applying the same.                            Kokkonen, 
    511 U.S. at 381
     (“The judge’s mere awareness and approval of the terms of
    the settlement agreement do not suffice to make them part of his
    order.”); see Smyth ex rel. Smyth v. Rivero, 
    282 F.3d 268
    , 283
    (4th Cir. 2002) (“Where a court merely recognizes the fact of
    the parties’ agreement and dismisses the case because there is
    no longer a dispute before it, the terms of the agreement are
    not made part of the order and consequently will not serve as a
    basis of jurisdiction. . . . This rule is interpreted to require
    that    the   district       court    give       a    clear    indication           that    it   is
    incorporating     the    terms       of    the       agreement      into    that      order      or
    retaining     jurisdiction          over       the    agreement.”        (emphasis         added)
    (paragraph break omitted)).
    To be sure, though, the October 14, 1993 order did provide
    to RTC “the right to reopen” the lawsuit; but any reopening
    required some triggering action (e.g., the filing of a motion).
    Final    dismissal,      on    the    other          hand,    was   to     be   the        default
    disposition     of    the      case       on     January       1,   1994,       absent        that
    triggering action (hence, the right to “reopen” the action and
    not the right to “effectuate/finalize dismissal” if settlement
    is consummated).         Thus, to the extent that dismissal was at all
    “conditional[],”        it    was    so    upon       RTC     not   filing      a    motion      to
    31
    reopen, which, as explained below in Part II, it did not do.
    The district court therefore became divested of subject matter
    jurisdiction on January 1, 1994.
    The majority contends that the December 23, 1993 Motion to
    Clarify was, in essence, a motion to reopen the case.                  Before
    addressing the Motion to Clarify on the merits, however, I note
    that   the   weakness   in    the    majority’s   “conditional     dismissal”
    theory is highlighted by the very presence of a second basis as
    to why the district court retained subject matter jurisdiction.
    In other words, if the dismissal was truly conditional upon the
    parties consummating settlement, as the majority claims, it is
    curious,     then,   that    the    majority   would   need   to   defend   on
    alternative footing its position that the district court had
    subject matter jurisdiction based on a motion that purported to
    reopen the case.        It is undisputed that the parties did not
    consummate settlement prior to the December 31, 1993 deadline,
    and based on the majority’s view of the conditional effect of
    the October 14, 1993 order, that solitary fact alone should end
    the inquiry: no settlement, no dismissal, case continues.
    Still, the majority endeavors to justify the existence of
    subject matter jurisdiction on several alternative bases, each
    of which becomes transparent when viewed under a more scrupulous
    microscope.
    32
    II.
    The Motion to Clarify could be more aptly described as an
    ancillary and administrative “motion to follow the law” rather
    than a seminal “motion to reopen,” as the majority views it.                    As
    an initial matter, the majority accords much due deference to
    the   district    court’s      province    to   interpret     its    own   orders,
    see ante at 14; that is the law surely enough, and I take no
    issue with this approach.            But the majority is disloyal in its
    adherence to that framework because the district court itself
    stated plainly that nobody moved to reopen the case.                       In the
    March 15, 2013 order (the order on appeal) regarding Nelson’s
    motion pursuant to Rules 59(e), 12(b)(1), 12(h)(3), and 60(b),
    the district court recited the relevant facts of the case as
    follows: “The case was again dismissed [on October 14, 1993]
    ‘with   right    to   reopen    if   settlement   is    not   consumated     [sic]
    before 12/31/1993.’       Nobody moved to reopen the case before the
    December   31,    1993   deadline.”       (J.A.   417   ([sic]      in   original)
    (emphasis added) (quoting entry 117 on the docket sheet).)
    If the district court were truly “treat[ing]” the Motion to
    Clarify as a motion to reopen, as the majority contends, ante
    at 13, one can only assume that the district court would have
    mentioned that motion at this factual juncture before jumping
    right into the November 1994 settlement.                Perhaps, even if the
    district court were silent regarding the presence or absence of
    33
    a motion to reopen, there might be room to debate whether the
    Motion to Clarify was, in effect, a motion to reopen; but not
    only did the district court make no mention of the all-important
    Motion    to    Clarify,      the    district       court      further       affirmatively
    stated    that,       “Nobody    moved       to   reopen       the     case   before    the
    December 31, 1993 deadline.”              Thus, in claiming that the Motion
    to   Clarify     was,    in   essence,       really     a     motion    to    reopen,    the
    majority all but concludes that the district court committed
    clear error in its recitation of the facts as stated in the
    March 15, 2013 order.
    Not surprisingly, there is a dearth of record support for
    the notion that the district court and the parties (referring to
    RTC, not ORL) treated the Motion to Clarify as a motion to
    reopen    due    to     failed      settlement      negotiations.             Although    I
    recognize that RTC’s decision to caption the Motion to Clarify
    as it did—rather than as a “Motion to Reopen”—is not fatal to
    ORL’s current position, see Belk, Inc. v. Meyer Corp., U.S., 
    679 F.3d 146
    , 157 (4th Cir. 2012), nowhere in the Motion to Clarify
    (or the subsequent Amended Order of Foreclosure) are the words
    “settlement” or “reopen” ever mentioned.                         That being said, I
    further   recognize       that      papers     filed    with     the    court    need    not
    contain any “magic words” to effectuate their purposes.                                 See
    Stevenson v. City of Seat Pleasant, 
    743 F.3d 411
    , 418 (4th Cir.
    2014).     But    certainly,        if   RTC      and   the    district       court    truly
    34
    viewed the Motion to Clarify as one to reopen, one would expect
    that there would be some mention of—or at a bare minimum, a
    fleeting         reference     to—the   failed    settlement       negotiations,        the
    December 31, 1993 deadline to settle, or the October 14, 1993
    dismissal order setting forth that deadline. 1                     But each of these
    telltale clues that the parties and the district court treated
    the Motion to Clarify as one to reopen are apparitions.
    Aside       from    RTC’s    request      to     waive     its    claim    for     a
    deficiency judgment (which I address in greater detail below),
    the Motion to Clarify essentially asked the district court to
    follow      the       proper   procedure    for       foreclosing       on   a   property
    pursuant to a judicial sale where the Office of the U.S. Marshal
    has not seized the property which is the subject of the action;
    in short, the Motion to Clarify simply asked the district court
    to follow the law.              The majority elevates the district court’s
    proper application of the rule of law as effecting “procedural
    and substantive changes to the provisions for the foreclosure
    sale,” ante at 13, but ignores the fact that the foreclosure
    sale       was    a    foregone    conclusion,        and   the    requested      relief
    regarding the legally proper procedure for executing the sale
    1
    By glaring contrast, in the October 14, 1993                           order, the
    district court refers expressly to (1) the July 13,                           1993 order
    of dismissal and (2) the fact that the parties were                           “unable to
    complete the documentation of the settlement.” (J.A.                         50.)
    35
    had no bearing on any pending settlement agreement.            At the end
    of the day, all RTC was doing was getting its ducks in a row to
    prepare for what was inevitable.
    The principal flaw of the majority’s view that the Motion
    to Clarify somehow reopened the case is to read that motion in a
    piecemeal fashion.        The majority provides a lone purportedly
    “good reason” for why the parties and the district court treated
    the Motion to Clarify as a motion to reopen: Nelson supposedly
    had an interest in the Motion to Clarify because “a reduction
    [in commission awarded to the Office of the U.S. Marshal] could
    only redound to the benefit of the guarantors.”            Ante at 13–14.
    But this rationale relies on an incomplete reading of the Motion
    to Clarify and a fundamental misunderstanding of the nature of
    the foreclosure proceedings.        And just as with the majority’s
    high-level comparison of the facts of Kokkonen with the facts of
    this case, the Devil is in the details.
    In   addition   to   seeking   to   limit   the   commission   to   the
    Office of the U.S. Marshal, the Motion to Clarify also sought to
    waive RTC’s right to a deficiency judgment against Nelson on
    both mortgages.      A deficiency judgment is “[a] judgment against
    a debtor for the unpaid balance of the debt if a foreclosure
    sale . . . fails to yield the full amount of the debt due.”
    Black’s Law Dictionary 918–19 (9th ed. 2009).             Thus, when RTC
    waived its right to a deficiency judgment, RTC essentially let
    36
    Nelson “off the hook” for any discrepancy between the amount
    that    RTC     would       obtain     from        the   foreclosure      sale     and    the
    remaining balance owed on the loans.                          Nelson therefore had no
    interest in whether the Office of the U.S. Marshal received a
    commission because he was not required to make up the difference
    to RTC, even if precluding the Office of the U.S. Marshal from
    receiving a commission would benefit RTC directly.
    Indeed,      if    Nelson     was      so    interested     in     the    Motion   to
    Clarify, as the majority claims, query then: why did he not file
    any motions or other papers either supporting or opposing that
    motion?       Instead, rather than taking a position—any position—on
    the    Motion    to      Clarify,    Nelson        was   an    absolute    ghost    on    the
    docket sheet from at least as early as the October 14, 1993
    dismissal order until 2011 after ORL entered the confession of
    judgment.        In      fact,   the    only        “parties”     who    appear    to    have
    participated in the hearing regarding the issues raised in the
    Motion to Clarify were RTC and the U.S. Attorney’s Office on
    behalf of the Marshal’s Service—not Nelson.                        (See J.A. 56 ¶ 10;
    
    id.
     at 57 ¶ 15.)
    By reading in a silo-like fashion RTC’s separate prayers
    for relief in the Motion to Clarify, the majority misses the big
    picture,      and     its    “good     reason”       for      treating    the    Motion   to
    Clarify as a motion to reopen is gainsaid by the very document
    that it relies upon.
    37
    III.
    The     majority      makes      two    other    arguments      to    support      its
    position; but like the arguments before them, these arguments
    similarly fall short and incomplete of the jurisdictional goal
    line.
    1.
    First is the notion that “[t]he procedural posture of the
    case after December 31, 1993 mirrors what happened earlier in
    the case,” ante at 14, specifically, what happened ninety-three
    days    after      the     district       court      entered     its     July    13,     1993
    dismissal order.             That order stated: “IT IS ORDERED that this
    action is hereby dismissed without costs and without prejudice
    to the right, upon good cause shown within ninety (90) days, to
    reopen the action is settlement is not consummated.”                              Although
    the district court did reopen the case after expiration of the
    ninety-day period, a plain reading of that order reveals that it
    was not the reopening of the case that must have occurred within
    ninety days, but rather the showing of good cause to reopen.                               In
    the    March    15,      2013    order,       the    district    court    recounted       the
    relevant facts surrounding the reopening of the case after the
    July 13, 1993 dismissal order as follows: “The case was closed
    on    that   same     day,      but   the     parties    later    returned       to    court.
    Although     the    docket       does    not    reflect    the    date      on   which    the
    38
    parties asked for the case to be reopened, the court reopened
    the case 93 days after the July 13, 1993 Order.” 2            (J.A. 416.)
    Accordingly,   because   we   do    not   know   when,    exactly,     the
    parties came to the court to reopen the case, the majority’s
    statement that the district court “nonetheless reopened the case
    93 days after the case was closed,” ante at 14, is nothing but a
    red herring—a straw-man that, even when set ablaze, sheds no
    light on the relevant issue.            At best for the majority, the
    circumstances surrounding the district court’s handling of the
    July 13, 1993 dismissal and reopening of the case are neutral. 3
    2
    I note that the March 15, 2013 order is the exact same
    order wherein the district court stated that, subsequent to the
    October 14, 1993 order, “Nobody moved to reopen the case before
    the December 31, 1993 deadline.” (J.A. 417.) Thus, inasmuch as
    the district court recited that “the parties asked for the case
    to be reopened” after the July 13, 1993 order, but on the very
    next page of that order recited that the parties did not “move[]
    to reopen the case before the December 31, 1993 deadline,” the
    court was perfectly capable of determining what constituted a
    motion/request to reopen.   This only further pulls the rug out
    from under the majority’s supposition that the district court
    somehow treated the Motion to Clarify as a motion to reopen.
    3
    But in reading Part II.A.1 of the majority opinion as a
    whole, the notion that “[t]he procedural posture of the case
    after December 31, 1993 mirrors what happened earlier in the
    case” based on “nearly identical” language in the dismissal
    orders, ante at 14, only further undermines the “conditional
    dismissal” theory. If the language in the two dismissal orders
    is “nearly identical,” one would expect that the effect of that
    language would also be nearly identical. Under the “conditional
    dismissal” theory, the case was at no point in time ever
    actually closed/dismissed pursuant to the July 13, 1993 order
    because dismissal was conditioned upon settlement and the
    parties did not settle. Yet, the district court thought that it
    needed to reopen the case and did so on October 14, 1993, due to
    (Continued)
    39
    2.
    Finally, the majority attempts to make hay by putting a
    spin on the absence of a clerical order of dismissal following
    the October 14, 1993 order (whereas the clerk entered such an
    order subsequent to the July 13, 1993 dismissal order).      This
    argument invokes the classic tale of the dog that did not bark
    in the night-time.   See generally Arthur Conan Doyle, The Silver
    Blaze, in The Memoirs of Sherlock Holmes (1892).     To wit, the
    conspicuous absence of any subsequent dismissal order indicates
    that the October 14, 1993 order was intended to serve as such.
    The order’s effect, therefore, is best understood by looking at
    what order did not follow.   (It is surprising that the majority
    would even attempt to make this absent-order argument in view of
    its due deference to the district court’s autonomy and handling
    of its own docket.    See ante at 14.   For indeed, the district
    court itself noted that when it reopened the case after the
    July 13, 1993 dismissal order, the parties’ request that it do
    so is “not reflect[ed]” on the docket sheet. (J.A. 416.))
    Regardless, I agree with the majority that the October 14,
    1993 order was not a “final” order at the time that it was
    “the parties [being] unable to complete the documentation of the
    settlement.” (See J.A. 50.) But if the case was never actually
    closed/dismissed, why would the district court have thought that
    the case needed to be “reopened”?
    40
    entered; but it became final on January 1, 1994, when the period
    for reopening the case expired without settlement and without
    either party moving to reopen.                 At this point, the district
    court    became    divested   of   subject          matter    jurisdiction.         The
    majority’s contrary result above runs afoul of well-settled law
    and, regrettably, all but creates an undesirable circuit split.
    In Berke v. Bloch, a case with facts and dismissal language
    very similar to the facts and dismissal language in this case,
    the   district     court   dismissed      a    lawsuit       “‘without    costs     and
    without prejudice to the right, upon good cause shown, within
    60 days,    to    reopen    the    action       if    the     settlement      is    not
    consummated.’”       
    242 F.3d 131
    ,       134    (3d     Cir.    2001).      “[T]he
    [plaintiffs]      undertook   no   action      within        the    prescribed     sixty
    (60) day period following entry of the District Court’s order.”
    
    Id.
         The Third Circuit, in concluding that the order dismissing
    the case constituted a final order, stated the following:
    When a District Court dismisses a case pending
    settlement, and grants the [plaintiffs] leave to re-
    file within a set period of time, the order cannot be
    considered final for the purposes of appeal on the
    date   it   was   entered.    Typically,   conditional
    dismissals based on imminent settlement include a
    fixed period of time to reach settlement terms. While
    these types of dismissals may keep the parties’ “feet
    to the fire” by giving them a deadline to conclude
    settlement, they cannot be considered final. Instead,
    if terms are reached, and/or the plaintiff makes no
    attempt to re-open the litigation, the order ripens
    into a final, appealable order upon the expiration of
    the fixed time period.
    41
    
    Id. at 135
     (emphasis added); see Longo v. First Nat’l Mortg.
    Sources, 523 F. App’x 875, 877–78 (3d Cir. 2013) (applying the
    rule from Berke and stating the following: “In its May 9 Order,
    the District Court dismissed the case ‘without prejudice to the
    right,    upon    good      cause    shown       within        60    days,     to    reopen    the
    action if the settlement is not consummated.’                                Thus, the May 9
    Order    .   .   .     bec[a]me      final       .    .    .    60     days    after    it     was
    entered[.]”).
    The result is no different in this case.                              Jung v. K. & D.
    Mining Co., 
    356 U.S. 335
    , 337 (1958) (per curiam) (holding that
    a   court    order     “dismissing         ‘th[e]         cause      of    action’”—not        the
    clerk’s subsequent entry of a judgment—is what “constituted the
    ‘final judgment’ in the case,” even though the Rule 58 clock to
    appeal    did    not     start      to    tick       until      separate       entry    of    that
    judgment     (second        internal      quotation            marks      added));     see    also
    Morris v. City of Hobart, 
    39 F.3d 1105
    , 1110 (10th Cir. 1994)
    (holding     that      an   “Administrative            Closing         Order    [giving]       the
    parties sixty days to reopen the proceedings . . . . mature[d]
    into    final    judgment      and,       [because]       no     action       [was]    taken    to
    resolve the case, satisfie[d] the separate document requirement
    of Rule 58” (citation omitted)).
    IV.
    In sum, Kokkonen controls: the convoluted procedural and
    substantive      morass       that       this    twenty-year-old              case    became    is
    42
    partly   the   product   of   the   failure   by   the    parties   and   the
    district court to notice that, when all was said and done, what
    the court was being asked to do in granting judgment on the
    confession was simply enforcing the settlement agreement.                 The
    dismissal order respecting that agreement did not “embody” the
    agreement or “retain jurisdiction” over it.              Kokkonen, 
    511 U.S. at
    381–82.     Moreover, because the Motion to Clarify did not seek
    to reopen the case, as a careful review of that motion and the
    subsequent related order plainly reveals, the October 14, 1993
    order matured into a final dismissal order on January 1, 1994.
    With great condemnation for Nelson’s unlawful and evasive
    behavior, and with sympathy for ORL’s struggles to obtain the
    money that it appears to be rightfully owed, I simply do not
    think that the district court had subject matter jurisdiction.
    I therefore would not reach the merits of ORL’s claim and, very
    respectfully, dissent to Part II.A.1 of the majority’s opinion.
    43
    

Document Info

Docket Number: 13-1402

Citation Numbers: 565 F. App'x 212

Judges: Floyd, Duncan, Davis

Filed Date: 4/7/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024

Authorities (18)

Aikens v. Ingram , 652 F.3d 496 ( 2011 )

Jung v. K. & D. Mining Co. , 78 S. Ct. 764 ( 1958 )

home-port-rentals-incorporated-v-peter-ruben-and-the-international , 957 F.2d 126 ( 1992 )

Magnolia North Property Owners' Ass'n v. Heritage ... , 397 S.C. 348 ( 2012 )

s-wayne-anderson-dwight-e-jefferson-and-commodity-futures-trading , 875 F.2d 76 ( 1989 )

Kokkonen v. Guardian Life Insurance Co. of America , 114 S. Ct. 1673 ( 1994 )

lynne-berke-david-abdinoor-leonard-accardo-jeff-adams-arnold-adicoff-md , 242 F.3d 131 ( 2001 )

Orlando Residence, Ltd. v. GP CREDIT CO., LLC , 553 F.3d 550 ( 2009 )

Frederick L. Millner v. Norfolk & Western Railway Company, ... , 643 F.2d 1005 ( 1981 )

Linda Mc Company, Inc. v. Shore , 375 S.C. 432 ( 2007 )

United States Ex Rel. Vuyyuru v. Jadhav , 555 F.3d 337 ( 2009 )

96-cal-daily-op-serv-6231-96-daily-journal-dar-10179-federal , 93 F.3d 636 ( 1996 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Egrets Pointe Townhouses Property Owners Ass'n v. Fairfield ... , 870 F. Supp. 110 ( 1994 )

Louie Morris, Plaintiff-Appellee-Cross-Appellant v. City of ... , 39 F.3d 1105 ( 1994 )

Simmons v. United Mortgage & Loan Investment, LLC , 634 F.3d 754 ( 2011 )

Robinson v. Equifax Information Services, LLC , 560 F.3d 235 ( 2009 )

victoria-smyth-for-herself-and-as-next-friend-for-her-minor-child-angela , 282 F.3d 268 ( 2002 )

View All Authorities »