Interscope Records v. Benavides

241 F.R.D. 458, 2006 U.S. Dist. LEXIS 16230, 2006 WL 842999
CourtDistrict Court, W.D. Texas
DecidedFebruary 24, 2006
DocketNo. SA-05-CA-232-OG
StatusPublished
Cited by7 cases

This text of 241 F.R.D. 458 (Interscope Records v. Benavides) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Interscope Records v. Benavides, 241 F.R.D. 458, 2006 U.S. Dist. LEXIS 16230, 2006 WL 842999 (W.D. Tex. 2006).

Opinion

ORDER DENYING MOTION TO SET ASIDE

ORLANDO L. GARCIA, District Judge.

Before the Court is defendant’s motion to set aside entry of default and default judgment. Plaintiffs filed this complaint on March 24, 2005. They obtained service on July 16, 2005 by leaving copies of the summons and complaint with defendant’s father who confirmed to the process server that defendant was his daughter and that she resided at the address. (Docket no. 3.) Defendant admits reviewing the papers but indicates that she did not understand them and did not understand that a lawsuit had been filed against her. Defendant states that “soon after July 16, 2005” she “contacted several attorneys” although she does not name them or indicate when she saw them. Apparently, none of the attorneys would take the case and “[a] few” told her she was “judgment proof’, which she took to mean that she did not need to worry about the complaint. Some three and a half months had passed from the time of service when in late October defendant received a letter from plaintiffs’ attorney stating that plaintiffs were seeking a default judgment against her. Defendant states she contacted an unidentified lawyer in the Dallas/Ft. Worth area who advised her to write a letter to the Clerk denying the allegations.

The Clerk entered default on November 7, 2005. On November 14, the Clerk received and filed a letter signed by defendant in which she states, “I am denying all charges brought against me.” She did not serve a copy of the letter on plaintiffs. On Novem[460]*460ber 22, the Court entered a default judgment against defendant. After receiving notice of the default judgment, defendant states she contacted several law offices (again unidentified), but was unsuccessful in hiring an attorney. Finally, on January 10, 2006, she retained her present counsel who filed the motion to set aside on January 13.

Federal Rule of Civil Procedure 60(b)(1) permits relief from a default judgment for “mistake, inadvertence, surprise, or excusable neglect” on a motion made within one year of the judgment. Fed.R.Civ.P. 60(b)(1). Courts construe Rule 60(b)(1) liberally to ensure that they resolve doubtful cases on the merits. Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d 933, 938 (5th Cir.1999). The Fifth Circuit has directed district courts to focus in particular on the following three factors when determining whether sufficient grounds exist for setting aside a default judgment under Rule 60(b)(1) of the Federal Rules of Civil Procedure: “(1) the extent of prejudice to the plaintiff; (2) the merits of the defendant’s asserted defense; and (3) the culpability of [the] defendant’s conduct.” Id. at 938-39. However, “[t]hese factors are not ‘talismanic.’... A district court may consider other factors, and the decision of whether to grant relief under Rule 60(b)(1) falls within its sound discretion.” Id. at 939 (internal citations omitted). “[W]hile courts apply essentially the same standard to motions to set aside a default and a judgment by default, the former is more readily granted than a motion to set aside a default judgment.” Matter of Dierschke, 975 F.2d 181, 184 (5th Cir.1992) (footnote omitted).

Before addressing the three Rogers factors, the Court will consider first whether defendant’s November 14 letter constitutes an appearance. Fed. R. Civ. P. 55(b)(2) provides: “If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served "with written notice of the application [for default judgment] at least 3 days prior to the hearing on such application.” Id. (emphasis added). The Fifth Circuit has “taken an expansive view as to what constitutes an appearance under Rule 55(b)(2).” Rogers, 167 F.3d at 936. An “appearance” is not limited “to those instances in which the party has made a physical appearance in court or has filed a document in the record. Rather, we have required only that the party against whom the default judgment is sought indicate in some way an intent to pursue a defense.” United States v. McCoy, 954 F.2d 1000,1003 (5th Cir.1992).

Rather, to qualify as an appearance and trigger Rule 55(b)(2)’s notice requirements, the defendant’s actions merely must give the plaintiff a clear indication that the defendant intends to pursue a defense and must “be responsive to the plaintiffs formal Court action.” Baez v. S.S. Kresge Co., 518 F.2d 349, 350 (5th Cir.1975); see also Sun Bank [of Ocala v. Pelican Homestead & Sav. Ass’n,] 874 F.2d [274,] 276 [(5th Cir.1989) ] (noting that appearances “‘include a variety of informal acts on defendant’s part which are responsive to plaintiffs formal action in court, and which may be regarded as sufficient to give plaintiff a clear indication of defendant’s intention to contest the claim’ ”) (quoting 6 Moore’s Federal Practice § 55.05(3) (2d ed.)).

Rogers, 167 F.3d at 937. Thus, to constitute an appearance two requirements must be met: defendant’s action must provide notice to the plaintiff and be responsive to the plaintiffs action.

When defendant sent her post-default letter to the Court she was not represented by counsel. Thus, her statement that she “den[ied] all charges” may be viewed generously as a general denial filed in response to plaintiffs’ motion for default judgment. Even so, because defendant failed to serve a copy of her letter on plaintiffs, it cannot be said that the letter gave plaintiffs “a clear indication of defendant’s intention to contest the claim.” A communication to plaintiffs counsel in which the defendant’s lawyer indicated an intention to defend the suit may suffice as an appearance even when no formal papers are filed. Charlton L. Davis & Co. P.C. v. Fedder Data Center, 556 F.2d 308, 309 (5th Cir.1977). In the present case, however, defendant gave no indication [461]*461whatsoever to plaintiffs that she intended to contest the claim. Thus, the Court finds that her November 14 letter did not constitute an appearance under Rule 55(b)(2).

Defendant argues that her default was not willful, but constituted mistake, inadvertence or excusable neglect. She argues that she did not understand the severity or nature of the lawsuit and that several of the attorneys she consulted with told her she was “judgment proof.” She further argues that after she received notice of the default judgment, she promptly sought legal assistance.

The Court finds that defendant’s failure to timely answer was intentional and not excusable.

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241 F.R.D. 458, 2006 U.S. Dist. LEXIS 16230, 2006 WL 842999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interscope-records-v-benavides-txwd-2006.