Appeal from the Superior Court of the District of Columbia (LTB-37651-07) (Hon. Maurice A. Ross, Motions Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN, THOMPSON and OBERLY, Associate Judges.
Jaime Carrasco appeals an order denying his motion pursuant to Civil Rule 60 (b)*fn1 to void or vacate a default judgment entered in favor of his landlord, appellee Thomas D. Walsh, Inc. ("Walsh"), for possession of Carrasco's rented apartment. We hold that the trial court correctly rejected Carrasco's claim that the judgment was void under Rule 60 (b)(4) for lack of legally effective service of process. However, we are persuaded that the court abused its discretion by denying Carrasco's motion to vacate the judgment under Rule 60 (b)(6) without giving proper consideration to all the factors relevant to such a decision. We remand the case for the court to reconsider that motion on its merits.
The proceedings in question took place in the Landlord and Tenant Branch of Superior Court. They began on October 25, 2007, when Walsh filed a complaint for possession based on Carrasco's failure to pay rent for the period September 1 through October 31, 2007. In an affidavit of service filed on November 21, 2007, the process server averred that he attempted personal service of the summons and complaint on two occasions without success and then effected service by posting and first class mail. While Carrasco does not dispute the process server's factual averments, he claims he nonetheless did not receive actual notice of the proceeding. He did not appear in court on the return date, December 4, 2007, and the trial court entered a default judgment against him.
Carrasco further claims that even though he never received the court's formal notification of the payment he would have to make to avoid being evicted (the so-called Trans-Lux amount),*fn2 he in fact paid Walsh the necessary amount by the end of January 2008.*fn3 Notwithstanding Carrasco's rent payments to Walsh during the pendency of the suit for possession, which are undisputed, the eviction was carried out in his absence on February 25, 2008. When Carrasco returned to his apartment, he found some of his personal property on the sidewalk, but he alleges that most of his belongings were stolen or damaged by looters and that his losses exceeded $13,000. Not until then, Carrasco claims, was he aware that a judgment for possession had been entered against him.*fn4
Carrasco filed his Rule 60 (b) motion with a supporting affidavit on February 20, 2009, a year after he was evicted. He attributed the delay to his inability to obtain counsel despite diligent efforts.*fn5 In seeking relief from the default judgment, Carrasco disclaimed any desire to regain possession of the apartment he rented from Walsh. Rather, he sought to overturn the judgment so as not to be precluded on res judicata grounds from pursuing a claim against Walsh for wrongful eviction.*fn6 Walsh filed no response to the motion. On March 9, 2009, after a brief non-evidentiary hearing consisting mainly of a colloquy between the trial court and Carrasco's counsel, the court denied the motion.*fn7
We review the denial of a motion to vacate a default judgment for abuse of discretion, but in view of the "strong judicial policy" favoring the decision of cases on their merits rather than by default, "even a slight abuse" of the trial court's discretion is enough to justify reversal.*fn8 We perceive no abuse of discretion in the trial court's denial of Carrasco's motion to vacate the default judgment as void under Rule 60 (b)(4). We conclude, however, that the court's inquiry was inadequate to justify its denial of relief under Rule 60 (b)(6).
A. Relief from a Void Judgment Pursuant to Rule 60 (b)(4).
A default judgment entered in the absence of legally effective service of process is void, and relief from such a void judgment may be sought by motion pursuant to Rule 60 (b)(4).*fn9 Under some circumstances, however, service may be legally sufficient even if the defendant did not receive actual notice. Carrasco does not dispute the process server's averments that he unsuccessfully attempted personal service on more than one occasion before resorting to posting and mailing.*fn10 By statute in the District of Columbia, this constituted legally effective service of the complaint and summons in an action for possession.*fn11 Unlike the cases on which Carrasco relies, this is not a case in which the landlord was on notice that posting and mailing would be ineffective and therefore was obligated to make a "diligent and conscientious effort" to pursue other readily available means of contacting the tenant.*fn12
B. Vacatur Pursuant to Rule 60 (b)(6).
Rule 60 (b)(6) permits the trial court to relieve a party from a final judgment "upon such terms as are just" for "any other reason justifying relief." We have identified five factors the court should consider in evaluating whether to grant relief under this provision: (1) whether the movant had actual notice of the proceeding; (2) whether he acted in good faith; (3) whether he presents a prima facie adequate defense; (4) whether he acted promptly in seeking relief; and (5) the potential prejudice to the non-moving party from granting the motion.*fn13 Carrasco argues that the trial court failed to consider these factors adequately, if it ...