Green v. City of Boston ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 97-1829



                              RANDOLPH E. GREEN, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                               CITY OF BOSTON, ET AL.,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                  [Hon. George A. O'Toole, Jr., U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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            Randolph E. Green on brief pro se.
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            Merita  A.  Hopkins,  Corporation  Counsel,  and  Gerald  Fabiano,
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        Assistant Corporation Counsel, City of Boston Law Department, on brief

        for appellees.





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                                  December 19, 1997

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                 Per Curiam.   Plaintiffs  appeal from  a district  court
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            judgment dismissing their civil rights  complaint for failure



            to state  a claim.   Their principal contention on  appeal is



            that the  district court erred  in setting aside a  notice of



            default, which  had been  entered when  defendants failed  to



            file a timely response to the amended complaint.  The setting



            aside  of an  entry of default  is subject to  a "good cause"



            standard, Fed. R. Civ. P. 55(c), is reviewable on appeal only



            for abuse of  discretion, and is not to  be disturbed "unless



            the  district court's decision is clearly wrong," McKinnon v.
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            Kwong Wah Restaurant, 83 F.3d 498, 502  (1st Cir. 1996).  The
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            court's action here cannot possibly be so characterized.



                 The "good  cause" standard is  a "mutable" one,  Coon v.
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            Grenier, 867 F.2d  73, 76 (1st Cir. 1989),  involving a case-
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            specific  determination  not  amenable   to  any  "mechanical



            formula,"  General  Contracting &  Trading Co.  v. Interpole,
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            Inc., 899 F.2d 109, 112 (1st Cir. 1990).  We have nonetheless
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            identified  some   general  guidelines  to   assist  in   its



            application.  See, e.g., McKinnon, 83 F.3d at 503; Interpole,
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            899  F.2d  at 112;  Coon,  867 F.2d  at  76.   These criteria
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            overwhelmingly  predominate  in   defendants'  favor.     For



            example,  there  has  been  no  suggestion  but  that  simple



            inadvertence was  involved here.   Plaintiffs  have not  been



            prejudiced  in  any relevant  sense.    See,  e.g.,  FDIC  v.
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            Francisco Inv. Corp., 873 F.2d 474, 479 (1st Cir. 1989).  The
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            defenses mounted  by defendants  have proven to  be not  only



            potentially but actually  meritorious.  And defendants  acted



            promptly  upon  learning  of their  oversight.    Given these



            circumstances,  the  district  court  acted  well  within its



            discretion in setting aside the entry of default.



                 Plaintiffs'  remaining  contention  is  that  the  court



            discriminated against them in failing to address two of their



            offerings:  their motion  to "vacate"  defendants' motion  to



            dismiss, and  their motion for  "order of judgment."   To the



            contrary,  the court necessarily  if implicitly  denied those



            requests in the course of granting the motion to dismiss.



                 As plaintiffs have advanced no specific challenge to the



            holding that their amended complaint failed to state a claim,



            it  suffices  to  note  that  we  find  the district  court's



            reasoning in this regard unexceptionable.



                 Affirmed.
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