Legion Insurance Co v. Mega Interests Inc

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 23, 2003
Charles R. Fulbruge III
Clerk
No. 03-20279
Summary Calendar
LEGION INSURANCE COMPANY,
Plaintiff-Appellee,
versus
MEGA INTERESTS INC., doing business as Jet Wrecker Service,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-3893
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Mega Interests Inc., doing business as Jet Wrecker Service,
appeals from an order denying its motion to vacate a default
judgment pursuant to FED. R. CIV. P. 60(b). Mega Interests, Inc.,
argues that the district court lacked jurisdiction and that the
district court abused its discretion when it denied the motion to
vacate.
Diversity jurisdiction pursuant to 28 U.S.C. § 1332 was
properly invoked since the parties were diverse and the complaint,
fairly read, states a claim exceeding $75,000. See Louque v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Allstate Ins. Co., 314 F.3d 776 (5th Cir. 2002); see also St. Paul
Reinsurance Co., Ltd. v. Greenburg, 134 F.3d 1250, 1253 (5th Cir.
1998).
Additionally, the district court did not abuse its discretion
when it denied the motion to vacate. To the extent that the motion
raised grounds pursuant to FED. R. CIV. P. 60(b)(4) and 60(b)(6), the
motion was to be filed within a reasonable time of the entry of the
default judgment. Mega Interests, Inc, has failed to argue and the
record does not indicate that the motion was filed within a
reasonable time. FED. R. CIV. P. 60(b); See Travelers Ins. Co. v.
Liljeberg Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)
(what constitutes a “reasonable time” is fact sensitive and takes
into account the interest in finality, the reason for delay, the
practical ability of the litigant to learn earlier of the grounds
relied upon, and prejudice to other parties). Furthermore, the
arguments advanced pursuant to FED. R. CIV. P. 60(b)(1) and (3) are
without merit because Mega Interests, Inc. has not shown that its
neglect was excusable nor has it shown that its default was due to
the misconduct of Legion Insurance Company. See Rogers v. Hartford
Life and Acc. Ins. Co., 167 F.3d 933, 939 (5th Cir. 1999).
AFFIRMED.
2