Go Invest Wisely LLC v. Murphy

2016 UT App 185

THE UTAH COURT OF APPEALS

GO INVEST WISELY LLC,
Appellee,
v.
BLAINE MURPHY,
Appellant.

Memorandum Decision
No. 20140822-CA
Filed September 1, 2016

Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 090403475

Karthik Nadesan, Attorney for Appellant
Victor A. Sipos, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY
concurred.

CHRISTIANSEN, Judge:

¶1 Appellant Blaine Murphy appeals the district court’s
denial of his rule 60(b) motion for postjudgment relief. See Utah
R. Civ. P. 60(b). We affirm in part, vacate in part, and remand for
further proceedings.

BACKGROUND

¶2 In November 2013, Go Invest Wisely LLC (GIW) filed an
amended complaint against Murphy, a resident of North
Carolina, alleging three causes of action: (1) fraud, (2) negligent
misrepresentation, and (3) unlawful formation and use of Bryce
Peters Financial Corporation (BPFC) in violation of law. The
Go Invest Wisely v. Murphy

complaint also named as defendants Odell Barnes and BPFC. See
generally Go Invest Wisely LLC v. Barnes, 2016 UT App 184.

¶3 Copies of the summons and amended complaint were
served on Murphy at the correctional facility in Ohio where he
was then incarcerated. Several days later, Murphy sent a letter to
the district court and GIW’s counsel ‚to request an extension of
time in which to submit [a] response/answer due to [his] current
incarceration.‛ At a pretrial conference on January 6, 2014, the
district court acknowledged that it had received Murphy’s letter;
however, the court did not respond to, or formally rule on,
Murphy’s request for an extension. Ultimately, in March 2014,
the district court entered a default judgment against Murphy for
$1,183,496.14.

¶4 Three months later, Murphy’s current counsel entered an
appearance and filed a motion for relief from the judgment
pursuant to rule 60(b) of the Utah Rules of Civil Procedure. In
his motion, Murphy requested oral argument and asked the
court to set aside the judgment as void for lack of jurisdiction
under rule 60(b)(4) and on grounds of mistake and excusable
neglect under rule 60(b)(1). In support of his motion, Murphy
submitted a declaration setting forth his version of the facts
regarding jurisdiction and his reasons for failing to timely
answer GIW’s complaint. Thereafter, GIW filed an opposition to
Murphy’s rule 60(b) motion, contending that the district court
could exercise jurisdiction over Murphy because, among other
things, ‚Murphy had numerous contacts with GIW, knowing it
was a Utah company. Murphy received hundreds of thousands
of dollars from GIW related to his criminal acts.‛ GIW’s
opposition was not supported by any affidavits, declarations, or
other sworn testimony, but GIW did submit approximately 430
pages of documents as exhibits (the Motion Exhibits), including
what purported to be (1) Murphy’s Ohio criminal indictment;
(2) a press release from the Cuyahoga County Prosecutor’s
Office stating that Murphy had been released from prison on
January 17, 2014; (3) several email exchanges between GIW and
Marty Franks acting on behalf of BPFC; (4) several email

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Go Invest Wisely v. Murphy

exchanges between GIW and Sandy Warren acting on behalf of
BPFC; (5) unsigned copies of purported sales agreements
between GIW and BPFC; (6) several email exchanges between
GIW and Andi Davis acting on behalf of BPFC; and (7) the
district court’s order denying codefendant Odell Barnes’s motion
to dismiss for lack of personal jurisdiction. See Go Invest Wisely
LLC v. Barnes, 2016 UT App 184.

¶5 Murphy then filed a reply memorandum, asserting that
GIW had ‚failed to establish personal jurisdiction over Murphy‛
and ‚failed to proffer an affidavit or other admissible evidence
in support of its argument for personal jurisdiction.‛ Murphy
contended that the Motion Exhibits constituted ‚inadmissible
hearsay in the absence of a supporting affidavit‛ and that the
district court was therefore required to accept as true the facts in
Murphy’s declaration. In addition, Murphy attached a
supplemental declaration, a copy of a complaint filed against
GIW for fraud, an Ohio Court of Appeals decision affirming
GIW’s misdemeanor convictions entered on no contest pleas,
and a Cleveland Municipal Court Capias Warrant Report
showing an outstanding warrant for GIW.1

¶6 In August 2014, after the conclusion of Barnes’s trial, see
generally Barnes, 2016 UT App 184, ¶ 7 n.1, the district court
entered an order denying Murphy’s motion for relief from the
default judgment. In denying Murphy’s motion, the district
court stated that ‚Murphy did not support his motion with any
admissible evidence.‛ The court then found that it had
jurisdiction over Murphy pursuant to section 78B-3-205 of the
Utah Code:

1. Black’s Law Dictionary defines ‚capias‛ as ‚*a+ny of various
types of writs that require an officer to take a named defendant
into custody. A capias is often issued when a respondent fails to
appear . . . .‛ Capias, Black’s Law Dictionary (10th ed. 2014).

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Murphy claims the court lacks general and specific
jurisdiction over him. However, he offers no
affidavit supporting his alleged facts. Sin[c]e he
wants instead to rely on the complaint and
seemingly convert his motion to a motion to
dismiss on this point, the Court notes the
complaint contains facts indicating Murphy was
transacting real estate sales with [GIW] which was
located in Utah and Murphy received payments
sent [to] him from Utah by that Utah company. He
did business using emails and couriers going to
and from Utah and provided fraudulent materials
to Utah. He thus engaged in transactions, supplied
documents and caused injury in Utah according to
the complaint. Plaintiff also provided exhibits
establishing these facts.

The court further concluded that ‚Murphy also made a general
appearance in the case when he wrote and filed a letter asking
for an extension of time.‛ Regarding Murphy’s mistake claim,
the court ruled that Murphy had ‚assumed the Court gave him
more time to answer‛ and that

he received no such grant from the Court and his
claim to making such an assumption is belied by
the fact he waited a half year after being served,
including four and a half months after getting out
of jail, to do anything, far beyond any reasonable
amount of time even if his assumption was correct
(he conveniently left out of his ‚facts‛ the date he
got out of jail—plaintiff had to research the date to
respond to the motion).

Likewise, the district court found no excusable neglect for
Murphy’s failure to respond to the complaint because Murphy
provided ‚no facts showing that once he got out of jail,
circumstances made him unable to act for six weeks.‛ According

20140822-CA 4 2016 UT App 185
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to the district court, even if Murphy had ‚been served the day of
his release, he would have had to answer in 30 days, but did
nothing for 45 days to the default date, and then continued to do
nothing thereafter for another 90 days.‛ Consequently, the
district court denied Murphy’s rule 60(b) motion in its entirety.
The court did not address Murphy’s claim that the Motion
Exhibits submitted by GIW constituted ‚inadmissible hearsay in
the absence of a supporting affidavit.‛

¶7 Apparently recognizing that the district court’s order
contained factual errors, GIW filed a motion to correct the
record. Specifically, GIW observed that the district court’s order
erroneously stated ‚that Murphy did not request oral argument
and that Murphy did not support his motion with admissible
evidence.‛ Murphy opposed the motion, arguing that the district
court lacked jurisdiction to alter the order because Murphy had
already filed his notice of appeal and because the relief GIW
sought was not authorized under the rules for correcting the
record. The district court granted GIW’s motion and amended its
order, concluding that ‚*e+ven if *Murphy+ requested a hearing
related to his motion for relief from the default judgment, a
hearing would not have materially affected the Court’s
decision.‛ In addition, the district court acknowledged that
Murphy had filed two declarations related to his motion for
relief. The district court stated that it had ‚reviewed those
affidavits and nothing contained therein alters the substantive
nature of the rulings in this Court’s August 5 Order. Plentiful
evidence shows that this Court has personal jurisdiction over
Murphy related to this action.‛ Murphy appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 On appeal, Murphy first contends that the district court
erred in denying his motion for relief from judgment under rule
60(b)(4) because the court lacked personal jurisdiction over him.
‚A denial of a motion to vacate a judgment under rule 60(b) is
ordinarily reversed only for an abuse of discretion.‛ Department

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of Social Services v. Vijil, 784 P.2d 1130, 1132 (Utah 1989).
‚However, when a motion to vacate a judgment is based on a
claim of lack of jurisdiction, the district court has no discretion: if
jurisdiction is lacking, the judgment cannot stand without
denying due process to the one against whom it runs.‛ Id. Thus,
‚the propriety of the jurisdictional determination, and hence the
decision not to vacate, becomes a question of law upon which
we do not defer to the district court.‛ Id. ‚Although
jurisdictional questions present issues of law, the burden of
demonstrating a lack of jurisdiction lies on the party challenging
jurisdiction.‛ Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 9, 100
P.3d 1211. ‚‘When a judgment, including a default judgment,
has been entered by a court of general jurisdiction, the law
presumes that jurisdiction exists, and the burden is on the party
attacking jurisdiction to prove its absence.’‛ Id. (quoting Vijil, 784
P.2d at 1133).

¶9 Alternatively, Murphy contends that he ‚should be
granted relief as a result of mistake and excusable neglect.‛ We
review the district court’s denial of Murphy’s motion for relief
from judgment under rule 60(b)(1) for an abuse of discretion. See
Jones v. Layton/Okland, 2009 UT 39, ¶ 10, 214 P.3d 859.

ANALYSIS

I. Personal Jurisdiction

¶10 Murphy first contends that he ‚should be granted relief
from the default judgment because Utah does not have personal
jurisdiction over [him].‛ As part of this contention, Murphy
argues that, ‚in the absence of sworn testimony, *the Motion
Exhibits] supplied by GIW constitute inadmissible hearsay
documents and lack foundation.‛2 Thus, according to Murphy,

2. In a similar vein, Murphy argues that ‚*e+vidence from the
trial of Odell Barnes is not part of the record for purposes of
(continued<)

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(<continued)
Murphy’s motion for relief from the default judgment.‛ Before
the district court ruled on Murphy’s motion for relief, GIW
submitted, and the district court received, approximately 900
pages of exhibits as part of Odell Barnes’s trial (the Trial
Exhibits). See generally Go Invest Wisely LLC v. Barnes, 2016 UT
App 184. On appeal, GIW’s briefing relies heavily on the Trial
Exhibits for its assertion that the district court had personal
jurisdiction over Murphy, and GIW implicitly asserts that the
district court relied on the Trial Exhibits in ruling on Murphy’s
motion for relief. However, Murphy asserted in his briefing and
at oral argument before this court that ‚contrary to GIW’s
arguments, there is no basis for believing that the district court
considered *the Trial Exhibits+ when it ruled on Murphy’s Rule
60(b) motion for relief,‛ and he correctly observes that ‚the Final
Order does not identify [the Trial Exhibits] as part of the
materials considered by the district court.‛ Murphy further
contends that this court ‚should not rely on *the Trial Exhibits+
in deciding whether the district court’s decision was erroneous‛
because ‚consideration of evidence from the trial of Barnes, held
after Murphy’s motion for relief had been briefed and submitted,
would violate due process.‛
We agree with Murphy that consideration of the Trial
Exhibits would be improper. ‚‘Procedural due process requires,
at a minimum, timely and adequate notice and an opportunity to
be heard in a meaningful way.’‛ Osburn v. Bott, 2011 UT App
138, ¶ 7, 257 P.3d 1028 (quoting McBride v. Utah State Bar, 2010
UT 60, ¶ 16, 242 P.3d 769). In this case, as Murphy correctly
acknowledges, ‚after the default judgment was entered against
him, Murphy lost his right to contest liability, participate in the
trial, or object to the evidence presented at Barnes’s trial.‛
Consequently, we conclude that GIW’s reliance on the Trial
Exhibits is misplaced. And were we to reach the merits of the
(continued<)

20140822-CA 7 2016 UT App 185
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GIW did not rebut Murphy’s sworn testimony and its ‚failure to
do so is fatal to any claim that Utah has personal jurisdiction
over Murphy.‛ Because we conclude that the district court
improperly ruled on Murphy’s rule 60(b)(4) motion before ruling
on his hearsay challenges, we do not reach the merits of the
parties’ personal-jurisdiction arguments.

¶11 In support of his argument that the Motion Exhibits
‚constitute inadmissible hearsay documents and lack
foundation,‛ Murphy cites White Pine Ranches v. Osguthorpe, 731
P.2d 1076 (Utah 1986), in which the Utah Supreme Court held
that it was improper for a trial court to consider an abstract of
the record from another case that was attached to the plaintiff’s
motion for summary judgment, because the abstract was
unauthenticated and was hearsay, and because the abstract did
not constitute an affidavit or support an affidavit. Id. at 1077–78.
In addition, Murphy cites several federal cases regarding
summary judgment that explain that ‚before they can be treated
as admissible, documents [in support of or in opposition to a
motion for summary judgment] must ‘be authenticated by and
attached to an affidavit that meets the requirements of [Federal
Rule of Civil Procedure] 56(e) and the affiant must be a person
through whom the exhibits could be admitted into evidence.’‛3

(<continued)
jurisdictional issue, we might well agree with Murphy that it
would be improper for this court to consider the Trial Exhibits.

3. Murphy refers to the former rule 56(e) of the Federal Rules of
Civil Procedure for the requirements of an affidavit or
declaration submitted in support of a motion for summary
judgment. Rule 56 of the Federal Rules of Civil Procedure was
amended in 2010. See Wilcox v. Career Step, LLC, 929 F. Supp. 2d
1155, 1161 n.5 (D. Utah 2013). Consequently, rule 56(c)(4), and
not rule 56(e), now outlines the procedures governing affidavits
or declarations submitted in support of motions for summary
judgment. See Fed. R. Civ. P. 56(c)(4) (‚An affidavit or
(continued<)

20140822-CA 8 2016 UT App 185
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(Quoting Burnett v. Stagner Hotel Courts, Inc., 821 F. Supp. 678,
683 (N.D. Ga. 1993).) See also, e.g., Hal Roach Studios, Inc. v.
Richard Feiner & Co., 896 F.2d 1542, 1550–51 (9th Cir. 1989) (‚It is
well established that unauthenticated documents cannot be
considered on a motion for summary judgment. . . . A document
which lacks a proper foundation to authenticate it cannot be
used to support a motion for summary judgment.‛).

¶12 Notwithstanding the foregoing, Murphy has cited no
cases—and our research has revealed none—in which a court
applied the procedures and requirements of rule 56 to a rule
60(b) motion for postjudgment relief. Cf. Robinson v. Jones Waldo
Holbrook & McDonough, PC, 2016 UT App 34, ¶ 22 n.6, 369 P.3d
119. Consequently, we are not persuaded that the Motion
Exhibits were required to be accompanied by a sworn affidavit
pursuant to rule 56.

¶13 However, it does not follow that the Motion Exhibits were
not otherwise required to be properly authenticated under rule

(<continued)
declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.‛).
During the relevant timeframe, rule 56(e) of the Utah
Rules of Civil Procedure provided, ‚Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein.‛ Utah R. Civ. P. 56(e) (2014). In 2015, the
Utah Supreme Court amended rule 56 ‚to adopt the style of the
Federal Rule of Civil Procedure 56 without changing the
substantive Utah law.‛ Id. R. 56 advisory committee notes (2015).
The former version of Utah Rule of Civil Procedure 56(e) was
nevertheless substantively similar to the current rule 56(c)(4) of
the Federal Rules of Civil Procedure.

20140822-CA 9 2016 UT App 185
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901 of the Utah Rules of Evidence and, if offered for their truth,
to be brought within an exception to the hearsay rule. Rule 901
requires that the proponent of an item of evidence authenticate
or identify it with ‚evidence sufficient to support a finding that
the item is what the proponent claims it is‛ and provides a
nonexhaustive list of means by which evidence may be
authenticated. See Utah R. Evid. 901. Moreover, if the contents of
a document are offered for their truth, see id. R. 801(c), they must
be brought within an exception to the hearsay rule, see id. R. 803,
804.

¶14 In denying Murphy’s request for relief, the district court
concluded that Murphy ‚engaged in transactions, supplied
documents and caused injury in Utah according to the
complaint. [GIW] also provided exhibits establishing these
facts.‛ Based on this language from the district court’s order, we
can infer that the district court concluded that the Motion
Exhibits were admissible evidence. However, the district court
provided no findings, no analysis, and gave no reasoning in
support of that conclusion, and nothing in the court’s order
indicates that the court specifically considered and rejected
Murphy’s hearsay arguments regarding the Motion Exhibits.

¶15 Consequently, because the district court failed to
meaningfully address Murphy’s argument that the Motion
Exhibits constituted inadmissible hearsay, we are unable to
determine on what grounds the district court found the twenty-
four Motion Exhibits to be admissible or the extent to which its
ultimate conclusion was based on them. For example, we do not
know whether the district court determined that the individual
exhibits required authentication to be admissible and, if so,
whether they were sufficiently authenticated or self-
authenticating. Likewise, we do not know if the district court
determined that the individual exhibits either did not constitute
hearsay or were admissible under an exception to the hearsay
rule. Additionally, we are unable to determine which of the
twenty-four Motion Exhibits the district court specifically relied
on in determining that it had personal jurisdiction over Murphy,

20140822-CA 10 2016 UT App 185
Go Invest Wisely v. Murphy

or whether the court could have reached the same result without
those exhibits. Accordingly, although the question of whether
the district court’s exercise of personal jurisdiction over Murphy
was proper presents a question of law, which we review for
correctness, see supra ¶ 8, we are unable to determine the
propriety of the district court’s jurisdictional determination, see
Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987) (‚The findings of
fact must show that the court’s judgment or decree follows
logically from, and is supported by, the evidence. The findings
should be sufficiently detailed and include enough subsidiary
facts to disclose the steps by which the ultimate conclusion on
each factual issue was reached.‛ (citations and internal quotation
marks omitted)).

¶16 Therefore, we vacate the district court’s decision and
remand with instructions to determine which, if any, of the
individual Motion Exhibits that the court relied on constitute
admissible evidence. Once it has decided the admissibility of the
Motion Exhibits, the district court should again consider
whether its exercise of personal jurisdiction over Murphy is
proper and identify the admissible evidence on which its ruling
is based.4

4. Based on the district court’s conclusion that Murphy ‚made a
general appearance in this case when he wrote and filed the
letter asking for an extension of time,‛ Murphy also contends
that his letter to the district court asking for ‚an extension of
time in which to submit [a] response/answer due to [his] current
incarceration‛ did not waive his right to challenge personal
jurisdiction. The Utah Supreme Court has acknowledged that
‚*t+he distinction between general and special appearances has
been abolished by the language contained in Rule 12(b) [of the
Utah Rules of Civil Procedure+ as follows: ‘No defense or
objection is waived by being joined with one or more other
defenses or objections in a responsive pleading or motion or by
further pleading after the denial of such motion or objection.’‛
(continued<)

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Go Invest Wisely v. Murphy

II. Mistake and Excusable Neglect

¶17 Murphy alternatively argues that he ‚should be granted
relief [from the default judgment] as a result of mistake and
excusable negligence.‛ Pursuant to rule 60(b) of the Utah Rules
of Civil Procedure, ‚[o]n motion and upon such terms as are just,
the court may in the furtherance of justice relieve a party or its
legal representative from a final judgment, order, or proceeding
for the following reasons: (b)(1) mistake, inadvertence, surprise,
or excusable neglect.‛ Utah R. Civ. P. 60(b)(1). ‚To be entitled to
relief under the rule, a party must show that ‘(1) the motion is
timely; (2) there is a basis for granting relief under one of the
subsections of 60(b); and (3) the movant has alleged a
meritorious defense.’‛ Asset Acceptance LLC v. Stocks, 2016 UT
App 84, ¶ 13 (quoting Menzies v. Galetka, 2006 UT 81, ¶ 64, 150
P.3d 480).

¶18 As a preliminary matter, the parties dispute whether
Murphy’s rule 60(b)(1) motion was timely. A motion made

(<continued)
Ted R. Brown & Assocs., Inc. v. Carnes Corp., 547 P.2d 206, 207
(Utah 1976) (quoting Utah R. Civ. P. 12(b)). Moreover, the Utah
Supreme Court has held that a defendant did not waive its
jurisdictional claim by sending a pro se letter to plaintiff’s
counsel (but addressed to the district court) where the defendant
‚did not ask for affirmative relief of the court‛ and ‚merely
denied responsibility for the injury and identified the case by its
number.‛ Parry v. Ernst Home Center Corp., 779 P.2d 659, 661
(Utah 1989). Here, Murphy’s pro se letter to the district court and
GIW’s counsel did not ask for affirmative relief of a substantive
nature; rather, Murphy’s letter merely sought an ‚an extension
of time in which to submit [a] response/answer due to [his]
current incarceration.‛ Consequently, we conclude that
Murphy’s letter did not amount to a general appearance in the
case or otherwise waive his jurisdictional defense.

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under rule 60(b)(1) ‚must be filed within a reasonable time
and . . . not more than 90 days after entry of the judgment or
order.‛5 Utah R. Civ. P. 60(c). Here, the district court entered
judgment on March 10, 2014, and Murphy filed his motion for
relief on Monday, June 9, 2014. Thus, Murphy filed his motion
ninety-one calendar days after the court entered judgment. See
id. R. 6(a)(1) (‚When the period is stated in days or a longer unit
of time: . . . exclude the day of the event that triggers the
period; . . . count every day, including intermediate Saturdays,
Sundays, and legal holidays; and . . . include the last day of the
period, but if the last day is a Saturday, Sunday, or legal holiday,
the period continues to run until the end of the next day that is
not a Saturday, Sunday or legal holiday.‛). However, because
the ninety-day deadline fell on Sunday, June 8, 2014, Murphy
had until the end of the day on Monday, June 9, 2014, to timely
file his motion. See id. Consequently, Murphy’s motion for relief
was timely.

¶19 Murphy contends that he should have been granted relief
under rule 60(b)(1) because ‚when the Court failed to respond in
any manner [to his request for an extension of time], Murphy
reasonably, if mistakenly, believed that he had been granted
additional time.‛ This claimed ‚mistake‛ serves as Murphy’s
excuse for neglecting to timely file an answer. According to
Murphy, he was unable to respond to GIW’s complaint in a
timely manner because he was incarcerated in Ohio at the time
of service and ‚had limited access to funds for retaining an
attorney,‛ resulting in his inability to search for an attorney in
Utah. Murphy contends that he nonetheless acted with due
diligence when he sent a letter to the district court requesting
additional time to respond to GIW’s complaint. Murphy also
contends that by sending his request for an extension of time to

5. Whereas a motion made under rule 60(b)(1), (2), and (3) must
be filed ‚not more than 90 days after entry of the judgment or
order,‛ a motion made under rule 60(b)(4), (5), and (6) must be
filed within a reasonable time. See Utah R. Civ. P. 60(c).

20140822-CA 13 2016 UT App 185
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the district court, he did ‚exactly what a reasonable person
would have done under the circumstances.‛

¶20 In its order denying Murphy’s motion for relief, the
district court observed that it did not grant Murphy an extension
of time to answer and that Murphy’s ‚claim to making such an
assumption is belied by the fact he waited a half year after being
served, including four and a half months after getting out of jail,
to do anything, far beyond any reasonable amount of time even
if his assumption was correct.‛ The district court further found
that Murphy

provides no facts showing that once he had got out
of jail, circumstances made him unable to act for
six weeks. Had he even been served the day of his
release, he would have had to answer in 30 days,
but did nothing for 45 days to the default date, and
then continued to do nothing thereafter for 90
days. This is not excusable neglect because Murphy
presents no evidence of diligence on his part. It is
noteworthy Murphy never told the Court or
counsel he was out of jail and asked for an
extension of time at that point. He did nothing for
seven weeks to find counsel or contact the Court.
He presents no facts saying anything ‚prevented‛
him from doing something. Any neglect was not
excusable. Hiding one’s head in the sand or doing
nothing is not excusable.

(Citation omitted.) We agree with the district court, and
conclude that Murphy’s inaction does not qualify for relief as
excusable neglect.

¶21 ‚To demonstrate that *a+ default was due to excusable
neglect, ‘*t+he movant must show that he has used due diligence
and that he was prevented from appearing by circumstances
over which he had no control.’‛ Black’s Title, Inc. v. Utah State Ins.
Dep’t, 1999 UT App 330, ¶ 10, 991 P.2d 607 (second alteration in

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original) (quoting Airkem Intermountain, Inc. v. Parker, 513 P.2d
429, 431 (Utah 1973)). ‚Due diligence is established where the
failure to act was the result of the neglect one would expect from
a reasonably prudent person under similar circumstances.‛
Sewell v. Xpress Lube, 2013 UT 61, ¶ 29, 321 P.3d 1080 (ellipsis,
citation, and internal quotation marks omitted); see also Bodell
Constr. Co. v. Robbins, 2014 UT App 203, ¶ 10, 334 P.3d 1004 (‚*I+n
determining whether a party has exercised due diligence
sufficient to justify excusing it from the full consequences of its
neglect under rule 60(b), the trial court must consider whether
the actions of the party seeking relief were sufficiently diligent
and responsible, in light of the attendant circumstances.‛
(citation and internal quotation marks omitted)).

¶22 Although Murphy contends that he acted as a reasonable
person would have when he took affirmative steps to address
the complaint by sending his letter requesting ‚an extension so
that he could have sufficient time to access his funds and retain a
lawyer,‛ that was the only action Murphy took in the six months
after he was served. In all fairness to Murphy, the district court
could have informed him of the status of his request. Murphy
has not, however, explained why it was reasonable for him to
construe the district court’s silence as granting him an extension
of time.

¶23 Moreover, when Murphy did not hear from the district
court, it was unreasonable for him to assume that his request
had been granted and to do nothing for six months thereafter.
This is especially true given that Murphy was released from
prison no later than January 22, 2014, yet took no action relating
to the lawsuit between that date and the default-judgment
date—March 10, 2014—and no action for three months after the
default-judgment date. And, as the district court correctly
observed, Murphy has presented no evidence that he was
somehow ‚prevented from appearing by circumstances over
which he had no control‛ once he got out of prison. See Black’s
Title, 1999 UT App 330, ¶ 10 (citation and internal quotation
marks omitted). Because Murphy has not shown that there is a

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basis for granting relief under rule 60(b)(1), we need not address
whether he has alleged a meritorious defense. See Asset
Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13. We conclude that
the district court did not abuse its discretion in rejecting
Murphy’s rule 60(b)(1) motion. See Jones v. Layton/Okland, 2009
UT 39, ¶ 10, 214 P.3d 859 (‚We review a district court’s denial of
a rule 60(b) motion for relief from judgment for an abuse of
discretion.‛).

CONCLUSION

¶24 We affirm the district court’s denial of Murphy’s motion
for relief pursuant to rule 60(b)(1) of the Utah Rules of Civil
Procedure. However, we vacate the district court’s denial of
Murphy’s motion to set aside the default judgment pursuant to
rule 60(b)(4) and remand this case to the district court so that the
court may determine whether any of the individual Motion
Exhibits constitute admissible evidence and thereby determine
whether the court’s exercise of personal jurisdiction over
Murphy is proper.

20140822-CA 16 2016 UT App 185