National Railroad Passenger Corp. v. Patco Transport, Inc. , 128 F. App'x 93 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-13817 ELEVENTH CIRCUIT
Non-Argument Calendar April 19, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00898-CV-ORL-19-KRS
NATIONAL RAILROAD PASSENGER CORPORATION,
Plaintiff-Appellee,
versus
PATCO TRANSPORT, INC.,
Defendant-
Third-Party Plaintiff-
Appellee,
MANUEL IRIZARRY,
Defendant-Appellee,
versus
DOLLY TRANS FREIGHT,
Third-Party Defendant-
Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 19, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellee, National Railroad Passenger Corporation (“Appellee”), brought
suit against Appellants, Patco Transport, Inc (“Patco”) and Manuel Irizarry
(“Irizarry”), under Florida’s dangerous instrumentality doctrine and the theory of
respondeat superior for damages resulting from a collision on July 13, 2001,
between one of Appellee’s passenger trains and a 1994 Mack truck beneficially
owned by Appellant Patco.
On June 20, 2003, Patco filed a Third-Party Complaint against Dolly
seeking indemnification that was served on Dolly on September 24, 2003. The
Clerk of Court entered a default judgment on October 31, 2003 due to Dolly’s
failure to appear or to serve any paper in the action. The district court granted
Patco’s Motion for Default Judgment and Final Judgment was entered against
Dolly in the amount of $232,318.20. The district court denied Dolly’s Motion to
Set Aside Default Judgment. Dolly brings this appeal arguing that its Motion to
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Set Aside Default Judgment should be entered because its failure to reply to the
Third-Party Complaint was due to excusable neglect.
We review the district court’s denial of a motion to set aside a default
judgment for an abuse of discretion. See Gibbs v. Air Canada, 810 F.2d 1529,
1537 (11th Cir. 1987). To prevail on its Motion to Set Aside Default Judgment
under Fed. R. Civ. P. 60(b), Dolly must show (1) a meritorious defense, (2) lack of
prejudice to the non-defaulting party, and (3) a good reason for failing to reply to
the complaint. In re Worldwide Web Sys., Inc. v. Feltman, 328 F.3d 1291, 1295
(11th Cir. 2003). “On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final judgment, order, or
proceeding . . . mistake, inadvertence, surprise, or excusable neglect . . . .” Fed. R.
Civ. P. 60(b)(1).
In support of its motion, Dolly argues that it had established adequate
procedural safeguards to ensure that any service of process would be appropriately
handled by its insurance company. Dolly further contends that the employee who
was usually in charge of this process had recently been deployed to Iraq and the
new secretary mistakenly or inadvertently violated Dolly’s procedures by creating
a litigation file and including the Complaint in that file rather than forwarding it
on to Dolly’s insurance company and that this constitutes excusable neglect. This
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procedure proved to be inadequate as Dolly did not respond to the complaint or
anything else that was filed in this case for over six months. The district court
determined, and we agree, that Dolly did not have an adequate procedure for
following up with its insurance company to inquire as to whether a complaint had
been received and was being pursued.
Our Circuit precedent indicates that “[d]efault that is caused by the
movant’s failure to establish minimum procedural safeguards for determining that
action in response to a [complaint] is being taken does not constitute default
through excusable neglect.” Id. (citing Davis v. Safeway Stores, Inc., 532 F.2d
489, 490 (5th Cir. 1976)).1
Under our precedent, Dolly’s failure to respond to the Third-Party
Complaint because of a lack of minimum procedural safeguards for responding to
complaints in a legal action does not constitute excusable neglect. Finding that the
district court did not abuse its discretion in denying Dolly’s Motion to Set Aside
Default Judgment, we affirm the district court’s order.
AFFIRMED.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
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