Xerox Corporation v. Rimm Holdings, Inc.

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 4, 2023
• Docket: 22-1500
• Status: Unpublished

Opinion

USCA4 Appeal: 22-1500 Doc: 15 Filed: 01/04/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1500

XEROX CORPORATION,

Plaintiff - Appellee,

v.

RIMM HOLDINGS, INC.; GOLD COAST, LLC, d/b/a Gold Coast Tax, LLC; JOSEPH ADJEI,

Defendants - Appellants.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:20-cv-03435-GLR)

Submitted: December 19, 2022 Decided: January 4, 2023

Before NIEMEYER and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: William A. Blagogee, LAW FIRM OF WILLIAM A. BLAGOGEE PC, Alexandria, Virginia, for Appellants. Donald J. Walsh, Morgan T. Dilks, RKW, LLC, Owings Mills, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1500 Doc: 15 Filed: 01/04/2023 Pg: 2 of 4

PER CURIAM:

Rimm Holdings, Inc., Gold Coast, LLC, and Joseph Adjei (collectively, Appellants)

appeal the district court’s order denying their motion to vacate the entry of default, denying

their motion to reconsider, and entering default judgment in favor of Xerox Corp. Finding

no reversible error, we affirm.

We review a district court’s order declining to set aside a default for abuse of

discretion. Payne ex rel. Est. of Calzada v. Brake, 439 F.3d 198, 204 (4th Cir. 2006).

“Rule 55 of the Federal Rules of Civil Procedure provides that a court may, for good cause

shown, set aside an entry of default.” Id. (cleaned up). We have identified six factors for

district courts to consider in deciding whether to set aside a default: “whether the moving

party has a meritorious defense, whether it acts with reasonable promptness, the personal

responsibility of the defaulting party, the prejudice to the party, whether there is a history

of dilatory action, and the availability of sanctions less drastic.” Id. at 204-05.

We conclude that the district court did not abuse its discretion in denying

Appellants’ motion to vacate the default. The only one of these six factors that Appellants

addressed in their motion was whether they had a meritorious defense. But their arguments

merely regurgitated those raised in their motion to dismiss and rejected by the district court.

At no stage of this case have Appellants alleged that they did not breach the contracts—at

best, they dispute the amounts owed Xerox. The district court rightfully rejected these

conclusory arguments as insufficient to justify setting aside the default. See August

Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988);

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Consol. Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249, 252 (4th

Cir. 1967).

Appellants addressed more of the factors in their motion to file an answer out of

time. * But Appellants filed this motion more than one month after the Clerk entered default

and after the deadline the Clerk had set for Appellants to file a motion to vacate the default.

See Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 418 (4th

Cir. 2010) (finding defendant acted promptly when moving to set aside the default within

nine days); Tazco, Inc. v. Dir., Off. of Workers’ Comp. Program, 895 F.2d 949, 950 (4th

Cir. 1990) (finding company acted promptly in answering a claim eight days after receiving

“notification of the default award”). And while counsel accepted the blame for having

difficulties with accessing the electronic docket and receiving notice, we have held a party

to his counsel’s failure to regularly stay apprised of the status of his case. See Robinson v.

Wix Filtration Corp., 599 F.3d 403, 413 (4th Cir. 2010). Therefore, we affirm the district

court’s order declining to set aside the default. And we also find no abuse of discretion in

the district court’s order denying Appellants’ motion to reconsider this order. See Carlson

v. Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017) (setting forth standard of review).

* While Appellants briefly argue that the district court erred in denying its motion to file an answer out of time, highlighting the good cause standard under Fed. R. Civ. P. 6(b), the district court conducted the proper inquiry—first addressing whether there was cause to excuse the default and, after concluding that there was not, declining to extend the time to file the answer. See Fed. R. Civ. P. 55(a) (“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” (emphasis added)).

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Finally, Appellants challenge only one aspect of the default judgment, contending

that the award of attorney’s fees to Xerox did not comply with Fed. R. Civ. P. 54(d). But

Appellants did not make this argument below, and we “do not consider issues raised for

the first time on appeal absent exceptional circumstances.” Hicks v. Ferreyra, 965 F.3d

302, 310 (4th Cir. 2020) (cleaned up).

Accordingly, we affirm the district court’s orders. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED