Attar v. Glass
- Loretta Preska
- 1:99-cv-10349-LAP
- U.S. District Court · Southern District of New York
- 12
Attar v. Glass: Judge Preska granted the Gerhausers’ motion to vacate the judgment and dismiss the action because service was defective.
The ruling affected Marc Attar and respondents William C. Gerhauser and William H. Gerhauser. It vacated the judgment and dismissed the action after finding defective service and no personal jurisdiction over William H. Gerhauser.
What happened
Attar v. Glass concerned Marc Attar’s effort to confirm an arbitration award against respondents, including William H. Gerhauser. The court had entered a judgment for $453,307.08, including interest, but the Gerhausers later argued they were never properly served with the confirmation application or related papers.
Attar argued that mailing the judgment to the respondents satisfied the service requirements. The Gerhausers’ attorney and William H. Gerhauser said they never received documents about the case and first learned of it when collection efforts began more than 20 years later.
Judge Preska ruled that the required application was not served, so the court never obtained personal jurisdiction over William H. Gerhauser and the judgment was void as to him. She granted the motion to vacate the judgment and dismiss the action, directed the clerk to close the case, and denied pending motions as moot.
The detailed version
- Attar v. Glass · No. 1:99-cv-10349-LAP
- Loretta Preska
- Nov. 21, 2022
Background
Marc Attar began arbitration in 1996 over the alleged negligent administration of his investment and pension accounts at Rothschild Global Investments, Inc. In 1998, the arbitrators awarded him $300,000 against William H. Gerhauser, among others. Attar then filed an application in the Southern District of New York to confirm the arbitration award.
The court issued an order to show cause stating that service of the order and the papers supporting it by overnight mail would be sufficient. Neither William C. Gerhauser nor William H. Gerhauser appeared or filed opposition. The court later confirmed the award and entered a judgment for $453,307.08, including $153,307.08 in interest. Attar’s affidavit stated that he mailed the judgment through ordinary mail to William H. Gerhauser at an address in the United Kingdom and to William C. Gerhauser at the address of his attorney.
In 2022, William C. and William H. Gerhauser moved under Federal Rule of Civil Procedure 60(b)(4) to vacate the judgment and dismiss the action. Their attorney and William H. Gerhauser submitted declarations stating that they never received documents concerning the federal case and first learned about it when attorneys working for Alan Attar began collection efforts in the United Kingdom.
Legal standard
Rule 60(b)(4) allows a court to relieve a party from a final judgment when the judgment is void. A judgment may be void when defective service deprived the court of personal jurisdiction—the court’s authority over the defendant. Under 9 U.S.C. § 9, the notice of an application to confirm an arbitration award must be served on the opposing party; service gives the court jurisdiction over that party as if the party had appeared.
Court’s analysis
The court found that Attar failed to serve the Gerhausers with the application to confirm the arbitration award. The affidavit of service referred to service of the judgment, not the application. The court also rejected Attar’s argument that his later mailing of the judgment satisfied Section 9, the Hague Convention, or the court’s order to show cause. The later mailing did not include notice of the application, and ordinary mail did not meet the order’s requirement for overnight-mail service of the order and supporting papers.
Because service was defective, the court concluded that it lacked personal jurisdiction over William H. Gerhauser when it entered the judgment. The court also found that the respondents lacked actual notice of the confirmation proceedings. It distinguished a prior arbitration case in which the opposing party had timely received notice and suffered no significant prejudice from defects in the method of service.
Disposition
Judge Loretta A. Preska granted the Gerhausers’ motion to vacate the judgment and dismiss the action. The clerk was directed to mark the action closed, and all pending motions were denied as moot.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.