USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 21-11472, 21-13569
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WESLEY ADAM KROLL,
Individually and
d.b.a. United Tax Service,
d.b.a. American Tax Service,
d.b.a. Tax Stop,
d.b.a. Tax South,
Defendant-Appellant.
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 2 of 10
2 Opinion of the Court 21-11472, 21-13569
____________________
Appeals from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:20-cv-00028-CDL
____________________
Before JORDAN, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
Former federal tax return preparer Wesley Kroll appeals the
district court’s denial of his motion for relief from partial default
judgment under Federal Rule of Civil Procedure 60(b). We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 12, 2020, the Government sued Kroll and his
tax return preparation businesses for permanent injunctive relief
and disgorgement under
26 U.S.C. sections 7402, 7407, and 7408.
The Government alleged that Kroll acquired “ill-gotten gains”
from the “preparation and filing of customer tax returns that
claimed improper tax refunds, understated customers’ federal tax
liabilities, or otherwise included false or fraudulent claims.” And
the Government supported its allegations with details about eight
unnamed customers whose federal income tax returns Kroll pre-
pared for multiple tax years at a store in Georgia. The Government
also alleged that “Kroll reside[d] in Midland, Georgia.”
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 3 of 10
21-11472 Opinion of the Court 3
Until the “end of March” or “beginning of April” 2020, Kroll
worked as the manager and sole employee of one of his Georgia
tax return preparation businesses. On March 4, 2020, he was served
at work with the summons and complaint in this action. The same
day, he contacted an attorney, who declined to represent him but
advised that the complaint was “very serious” and “could have se-
rious implications, both civil and criminal,” and that it was “very
important” for Kroll to “hire an attorney” and “answer the com-
plaint timely.”
On March 25, 2020, Kroll’s deadline for responding to the
complaint expired. See Fed. R. Civ. P. 12(a)(1)(A)(i). At that point,
Kroll had not appeared in the case. Five days later, at the Govern-
ment’s application, the clerk entered default against him.
On April 20, 2020, the Government moved for a partial de-
fault judgment for permanent injunctive relief. The same day,
Kroll appeared pro se and filed a three-sentence motion for exten-
sion of time. The COVID-19 pandemic and a related “stay in place
order,” he said, had caused him to “hav[e] a very difficult time ob-
taining legal [counsel],” despite his “hav[ing] contacted many law
firms.” The motion didn’t specify how long of an extension Kroll
wanted and it gave an Alabama address for Kroll.
Three days later, the district court granted Kroll’s motion
and afforded him over a month—until June 1, 2020—to respond to
the Government’s motion and to move to set aside the clerk’s de-
fault. The district court warned that Kroll’s “[f]ailure to file a
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 4 of 10
4 Opinion of the Court 21-11472, 21-13569
response by that date w[ould] result in partial default judgment be-
ing entered against [him].”
On May 24, 2020, a month after he received the extension
and a week before the June 1 deadline, Kroll began experiencing
COVID-19 symptoms. He was bedridden for ten days. “[W]ithin
a day or so” after Kroll got sick, his teenage stepson also contracted
COVID-19, experiencing symptoms less severe than Kroll’s. The
June 1 deadline passed while Kroll was sick.
On June 10, 2020, the Government renewed its motion for
partial default judgment. Under the local rules, Kroll had until July
1, 2020, to respond to the renewed motion. See M.D. Ga. Loc. R.
7.2 (“A party desiring to submit a response, brief, or affidavits shall
serve the same within twenty-one (21) days after service of mo-
vant’s motion and brief.”). Kroll didn’t meet this deadline. In fact,
Kroll’s next filing didn’t occur until September 18, 2020, when legal
counsel appeared on his behalf.
On August 20, 2020, the district court granted the Govern-
ment’s motion and entered a permanent injunction broadly pro-
hibiting Kroll from operating a tax return preparation business.
Over a month later, on October 1, Kroll moved for relief from judg-
ment under rule 60(b) and for leave to file an answer. Kroll sought
relief based on “excusable neglect” under rule 60(b)(1) and the
“other reason” provision in rule 60(b)(6), and he argued that he
failed to answer the complaint because of the COVID-19 pandemic
generally and its effects on his health and his family specifically.
Along with the rule 60(b) motion, Kroll submitted a proposed
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 5 of 10
21-11472 Opinion of the Court 5
answer and a short affidavit. The proposed answer briefly raised
two affirmative defenses (failure to state a claim and estoppel) and
largely denied (or neither admitted nor denied) the complaint’s al-
legations. It also alleged that “Kroll [wa]s a resident of Alabama”
who owned only one tax return preparation business. In the affi-
davit, Kroll “declare[d] under the penalty of perjury” that the pan-
demic made him “unable to locate” “an attorney who was compe-
tent to handle tax preparer litigation” in March 2020 and that he
couldn’t “find an attorney to handle the case” after he and his child
got COVID-19 in May 2020.
After additional briefing, the district court denied Kroll’s
motion. The district court construed the motion as arising under
rule 60(b)(1), not rule 60(b)(6), and explained that, in any event,
Kroll hadn’t met the rule 60(b)(6) requirement of “showing that an
extreme or unexpected hardship w[ould] result” unless the partial
default judgment against him were set aside. Kroll also hadn’t
shown excusable neglect under rule 60(b)(1), said the district court,
because he didn’t give “a good reason for his failure to respond to
the Government’s complaint or otherwise comply with the [dis-
trict c]ourt’s deadlines.” The district court explained that “[c]on-
tracting an illness in May d[id] not explain why [Kroll] failed to re-
spond to the . . . complaint in March, let alone constitute a good
reason for that failure,” and that his “inability to obtain counsel in
[the] civil action” wasn’t a good reason for missing deadlines.
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 6 of 10
6 Opinion of the Court 21-11472, 21-13569
STANDARD OF REVIEW
We review a district court’s denial of a rule 60(b) motion
“only for abuse of discretion.” Am. Bankers Ins. Co. v. Nw. Nat’l
Ins. Co.,
198 F.3d 1332, 1338 (11th Cir. 1999). “Under this standard,
we affirm unless . . . the district court applied an incorrect legal
standard, failed to follow proper procedures,” made “clearly erro-
neous” factual findings, Lugo v. Sec’y, Fla. Dep’t of Corr.,
750 F.3d
1198, 1207 (11th Cir. 2014), or “made a clear error of judgment,”
Ameritas Variable Life Ins. Co. v. Roach,
411 F.3d 1328, 1330 (11th
Cir. 2005); accord Lambrix v. Sec’y, Fla. Dep’t of Corr.,
851 F.3d
1158, 1170 n.7 (11th Cir. 2017). The rule 60(b) appeal “is narrow in
scope, addressing only the propriety of the denial.” Am. Bankers,
198 F.3d at 1338. The appeal “does not raise issues in the underly-
ing judgment for review.” Id.
DISCUSSION
Kroll appeals the denial of his motion for relief from the par-
tial default judgment. He argues that because (1) his proposed an-
swer raised a meritorious defense, (2) setting aside the judgment
wouldn’t prejudice the Government, and (3) the COVID-19 pan-
demic created extraordinary circumstances that prevented him
from filing a timely answer, the district court abused its discretion
in denying his rule 60(b) motion. We disagree.
“On motion and just terms, the court may relieve a party . . .
from a final judgment, order, or proceeding for the following rea-
sons: (1) mistake, inadvertence, surprise, or excusable neglect” or
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 7 of 10
21-11472 Opinion of the Court 7
“(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b).
Rule 60(b)(1) and rule 60(b)(6) are “mutually exclusive.” Pioneer
Inv. Servs. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 393
(1993).
“Under [r]ule 60(b)(6), a party remains under a duty to take
legal steps to protect his own interests.” Aldana v. Del Monte Fresh
Produce N.A., Inc.,
741 F.3d 1349, 1357–58 (11th Cir. 2014) (altera-
tion adopted and quotation omitted). “To justify relief under [rule
60(b)(6)], a party must show extraordinary circumstances suggest-
ing that the party is faultless in the delay.” Pioneer Inv. Servs.,
507
U.S. at 393 (quotation omitted). “If a party is partly to blame for
the delay, relief must be sought within one year under [rule
60(b)(1)] and the party’s neglect must be excusable.”
Id.
It took seven months after Kroll was served with the com-
plaint for him to propose an answer to it. As much as Kroll wants
to blame the pandemic for this delay, he wasn’t “faultless.” Pioneer
Inv. Servs.,
507 U.S. at 393. He knew how to represent himself in
the action: he did so when he filed the motion for extension of
time, which the district court granted. Kroll explains why he
wanted a lawyer: lawyers seem “magical,” being sued is “terrify-
ing,” legal terms like “disgorgement” may as well be “Greek,” and
he was “caught in the crosshairs of a complaint he did not under-
stand with the most powerful opponent in the history of the
world”—the United States Government. But Kroll doesn’t ade-
quately explain why he couldn’t have acted pro se to respond to
the default judgment motion, move to set aside the default, ask for
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 8 of 10
8 Opinion of the Court 21-11472, 21-13569
another extension, or file an answer. Instead, he did none of those
things; he waited until after the district court granted the Govern-
ment’s motion to argue his case and “take legal steps to protect his
own interests.” Aldana,
741 F.3d at 1357–58.
Even if Kroll couldn’t have represented himself when he was
bedridden from COVID-19, he didn’t get sick until May 24, 2020.
A whole month earlier, on April 23, the district court had afforded
him an extension. That the district court gave him until June 1 at
the latest to oppose the default judgment motion didn’t mean that
he should have waited until June 1 to do so—for the very reason
that something could happen. Because Kroll was “partly to blame
for the delay,” he had to move for relief under rule 60(b)(1), not
rule 60(b)(6). Pioneer Inv. Servs.,
507 U.S. at 393. Thus, the district
court correctly construed his motion as arising under rule 60(b)(1).
“To establish mistake, inadvertence, or excusable neglect
under [r]ule 60(b)(1), a defaulting party must show that: (1) it had
a meritorious defense that might have affected the outcome; (2)
granting the motion would not result in prejudice to the non-de-
faulting party; and (3) a good reason existed for failing to reply to
the complaint.” Valdez v. Feltman,
328 F.3d 1291, 1295 (11th Cir.
2003) (quotation omitted). Even when “the prejudice in [a] case is
not particularly pronounced,” we will affirm when the moving
party “fail[s] to make even the barest showing of a meritorious de-
fense or to present a good reason for failing to respond to the com-
plaint.”
Id. at 1297. “[A] moving party cannot satisfy the burden
of showing a meritorious defense simply by asserting a general
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 9 of 10
21-11472 Opinion of the Court 9
denial,”
id. at 1296 (quotation omitted), but “must make an affirm-
ative showing of a defense that is likely to be successful,”
id. (quo-
tation omitted). The moving party must offer specific explana-
tions, not just denials at the “highest order of abstraction.”
Id.
Kroll failed to establish a good reason or a meritorious de-
fense. First, even considering the pandemic, Kroll had ample time
to either represent himself or obtain legal counsel and meet the
district court’s deadlines. Kroll and his stepson didn’t get COVID-
19 until two months after the initial deadline for responding to the
complaint had expired.
Second, Kroll failed to show a meritorious defense. Kroll
argues that his proposed answer “la[id] out a considerable number
of inaccuracies posed within the complaint” and thus showed that
“[t]he Government did not thoroughly research its claims before
bringing this action.” As examples of inaccuracies, Kroll points to
the complaint’s allegations that he lived in Georgia and owned
multiple businesses, when in fact (he says), he was “a citizen of Al-
abama at all times relevant” and didn’t “own any of the entities
listed in this action.” He also criticizes the anonymity of the cus-
tomers listed in the complaint, which made it “impossible to pro-
vide greater specifics as to his defense,” and describes the case as
“based largely around [one] disgruntled customer.” But Kroll’s ar-
guments rest on general denials that fail to make a specific showing
of a meritorious defense.
Id. at 1296–97. Thus, he didn’t satisfy his
burden.
Id.
USCA11 Case: 21-11472 Document: 52-1 Date Filed: 01/17/2023 Page: 10 of 10
10 Opinion of the Court 21-11472, 21-13569
About the lack of prejudice, Kroll contends that the Govern-
ment “can afford to handle one more litigation without going
bankrupt” and “enjoys the possible remedy of preliminary, contin-
uing, injunction to bar [him] from preparing tax returns.” But even
if “the prejudice in this case is not particularly pronounced,” Kroll
didn’t “make even the barest showing of a meritorious defense or
. . . present a good reason for failing to respond to the complaint.”
Id. at 1297. Thus, the district court didn’t abuse its discretion in
denying his rule 60(b) motion, and we affirm.
AFFIRMED.
