United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE
2011, after ample notice and opportunity to be heard, I
entered default judgment against corporate defendant
Anti-Steroid Program, LLC d/b/a S.W.A.T.S. (SWATS) in the
case styled David Vobora v. S.W.A.T.S., et al., Case
Number 4: 10 CV 810 RWS. Default was entered only after SWATS
twice asked the Court to permit its counsel to withdraw,
despite being advised that a corporate defendant could not
represent itself and that a default judgment would be entered
if SWATS did not retain substitute counsel to represent it.
In support of its motion, SWATS filed the affidavit of
corporate president Mitchell Ross, who testified that
“SWATS understands that it may not proceed without
counsel in this matter and that proceeding without counsel
may result in a default of this lawsuit.” (Case No. 4:
10 CV 810 RWS Doc. #41-1). I therefore granted the motion to
withdraw. When no substitute counsel entered an appearance on
behalf of SWATS, the Clerk of the Court entered default and I
set Vobora's motion for default judgment for hearing.
(Id. at Doc. #47). Despite SWATS' default,
notice of the default judgment hearing and all subsequent
orders were mailed to SWATS at the corporate address provided
by SWATS. SWATS did not appear for the default judgment
hearing, which lasted two hours and included six exhibits and
the testimony of two witnesses. (Id. at Doc.
#50-51). After consideration of all evidence, I entered a
default judgment against SWATS in excess of $5.4 million
dollars. (Id. at Doc. #59). Vobora was also awarded
his attorney's fees and costs. (Id. at Doc.
#65-66). SWATS did not appeal.
then attempted to collect his judgment. After numerous
unsuccessful efforts, Vobora eventually filed a lawsuit in
Alabama state court to pierce the corporate veil and hold
others (including the plaintiff in this case William Voss)
responsible for the judgment entered against SWATS.
(Vobora v. Anti-Steroid Program, LLC, et al., Case
No. 2013-903816 in the Circuit Court of Jefferson County,
Alabama). According to the corporate resolution documents
filed in my underlying case (Case No. 4: 10 CV 810 RWS Doc.
#42-1), Voss was the “Managing Member” of SWATS,
personally resolved for the company to be dissolved in
December of 2010, and directed that he (not
corporate president Ross) “oversee, complete, and
wind-up the affairs” of SWATS. Voss was not a defendant
in the underlying case that was pending before me or a party
to the underlying default judgment.
Voss has come into this Court and filed this lawsuit to set
aside the 2011 default judgment I entered against SWATS.
Because Voss seeks relief from my default judgment under
Fed.R.Civ.P. 60(d)(1), the case was transferred to me. Voss
argues that I should vacate the default judgment against
SWATS because Vobora could not have tested positive for
methyltestosterone by using SWATS' product. In doing so, he
makes allegations and arguments that could - and should-have
been made before default judgment was entered. Voss - who is
represented by counsel here - also argues that I should
vacate the default judgment entered against SWATS because he
cannot afford counsel to represent him in Alabama (apparently
his money limitations did not prevent him from retaining St.
Louis counsel). Finally, Voss complains that it is unfair to
enforce the default judgment because he was thought SWATS was
going to continue defending this action, despite SWATS'
request to the contrary and the corporate dissolution
documents signed by Voss charging Voss with the
responsibility to “oversee, complete, and wind-up the
affairs” of SWATS.
has now filed a properly supported motion to dismiss this
action under Fed.R.Civ.P. 12(b)(6) because Voss is not a
party to the default judgment entered against SWATS, has no
apparent standing to challenge the validity of the default
judgment entered against SWATS, and has not asserted a valid
legal basis for vacating the judgment. Voss opposes the
motion and moves to strike some of the materials submitted in
support of the motion as outside the scope of a 12(b)(6)
motion. I will deny the motion to strike, as I need not - and
therefore, do not - consider extraneous matters to decide
that dismissal is proper.
purpose of a motion to dismiss under Federal Rule of Civil
Procedure 16(b)(6) is to test the legal sufficiency of the
complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and
construes them in favor of the plaintiff. Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989). To survive
dismissal, a complaint must contain “more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); accord Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009). A complaint must
contain either direct or inferential allegations respecting
all the material elements necessary to sustain recovery under
some viable legal theory. Twombly, 550 U.S. at 562.
This standard “simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of
[the claim or element].” Id. at 556. The Court
is “free to ignore legal conclusions, unsupported
conclusions, unwarranted inferences and sweeping legal
conclusions cast in the form of factual allegations.”
Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870
(8th Cir. 2002).
entitlement to relief under Rule 60(d)(1) requires Voss to
meet a very high bar. Such relief is available only to
prevent a “grave miscarriage of justice.”
United States v. Beggerly, 524 U.S. 38, 47 (1998).
To prevent the restrictions of Rule 60(b) from “be[ing]
set at naught, ” relief under Rule 60(d) is
“reserved for those cases of injustices which, in
certain instances, are deemed sufficiently gross to demand a
departure from rigid adherence to the doctrine of res
judicata.” Id. at 46 (quotation and citation
omitted). “The indispensable elements of” a
successful Rule 60(d)(1) motion are “(1) a judgment
which ought not, in equity and good conscience, to be
enforced; (2) a good defense to the alleged cause of action
on which the judgment is founded; (3) fraud, accident, or
mistake which prevented the defendant in the judgment from
obtaining the benefit of his defense; (4) the absence of
fault or negligence on the part of the defendant; and (5) the
absence of any adequate remedy at law.” City of
Duluth v. Fond du Lac Band of Lake Superior Chippewa,
708 F.Supp.2d 890, 898-99 (D. Minn. 2010) (citing 11 Wright,
Miller & Kane, Federal Practice and Procedure,
Civil 2d § 2868, and Nat'l Sur. Co. of New York
v. State Bank of Humboldt, 120 F. 593, 599 (8th Cir.
I assume for purposes of deciding this motion only that Voss
has standing to challenge the default judgment entered
against SWATS, dismissal is still required as the
“indispensable elements” of a successful Rule
60(d) motion, including the absence of fault or negligence on
the part of the defendant are plainly absent in this case.
Default was entered in the underlying case only after SWATS
twice asked the Court to permit its counsel to
withdraw, despite being advised that a corporate defendant
could not represent itself and that a default
judgment would be entered if SWATS did not retain substitute
counsel to represent it. As a result, Voss cannot demonstrate
that default was entered against SWATS without “fault
or negligence” on its part. In addition, the alleged
basis for setting aside the default judgment could -- and
therefore should -- have been presented to this Court prior
to default judgment being entered. Under these circumstances,
this Court will not set aside the default entered against
SWATS. Because Voss cannot state a claim for relief under
Rule 60(d)(1), I will grant the motion to dismiss in its
IT IS HEREBY ORDERED that defendant's motion to dismiss
 is granted, and plaintiffs complaint is dismissed with
FURTHER ORDERED that the motion to strike  is denied.
 I assume familiarity with the facts in
the underlying case and will not restate them here.
 While I have not considered the
supporting materials provided by Vobora to decide whether
dismissal is appropriate, they are troubling -- particularly
Voss's threats to have Vobora criminally investigated
should he continue his legally permissible collection
efforts. However, as these statements were made in the
context of Vobora's collection efforts in Alabama state
court, the state court is best ...