Simpson v. Moran

Case: 21-11231 Document: 00516384339 Page: 1 Date Filed: 07/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 6, 2022
No. 21-11231
Lyle W. Cayce
Clerk
In the Matter of: Life Partners Holdings,
Incorporated
Debtor,
H. Thomas Moran, II, as Trustee for Life Partners
Holdings, Inc.; Life Partners, Incorporated; Life
Partners Financial Services, Incorporated; Alan M.
Jacobs, As Trustee for Life Partners Creditors' Trust;
Life Partners Creditors' Trust,
Appellees,
versus
Richard Bryan Simpson,
Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-cv-300
Before Richman, Chief Judge, and Ho and Engelhardt, Circuit
Judges.
Case: 21-11231 Document: 00516384339 Page: 2 Date Filed: 07/06/2022
No. 21-11231
Per Curiam:*
Richard Simpson had actual notice of a court-ordered settlement
conference but did not participate in the conference. The district judge
ordered a default judgment against Simpson. Simpson claims to not have
received notice of the default judgment until several months later. The
district court denied Simpson’s motion to set aside the judgment. Because
Simpson has not offered a meritorious defense, we affirm.
I
Simpson is one of many defendants in an adversarial bankruptcy
proceeding. In the interest of brevity, we limit our discussion of the facts of
this case to those directly relevant to the instant appeal. A more detailed
statement of the facts underlying this case may be found in our prior opinions
regarding this dispute.1 This proceeding has gone on for several years, and
Simpson had retained counsel for the vast majority of it. In June 2020,
pursuant to local rules, the district court ordered the parties to engage in
settlement conferences before September 30, 2020 or face default judgment
“without further notice.” Simpson does not dispute that he received notice
of this order.
Sometime before September 2, 2020, Simpson informed his attorney,
Thomas Brandon, that he would not be renewing Brandon’s retainer.
Brandon replied that he would move to withdraw. In his withdrawal motion
to the court, Brandon cited as his reasons for withdrawal not only Simpson’s
refusal to pay, but also the fact that Simpson was not cooperating with
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
1
See, e.g., Life Partners Creditors’ Tr. v. Cowley, 926 F.3d 103 (5th Cir. 2019); SEC
v. Life Partners Holdings, Inc., 854 F.3d 765 (5th Cir. 2017).
2
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No. 21-11231
preparation for the required settlement conference. Brandon also sent an
email saying as much to Simpson.
Before withdrawing, Brandon informed Simpson—again—of the
requirement of a settlement conference prior to September 30, 2020, and the
possibility of default if he did not engage in the conference. Brandon
suggested that Simpson reach out to opposing counsel (McGee) to see how
they wanted to proceed. Simpson does not dispute that he received this
notice. On September 4, 2020, McGee sent Simpson a letter by certified mail
requesting Simpson’s participation in a settlement conference on either
September 16th or 17th and again reiterating the necessity of conferring prior
to the end of the month. Simpson replied via email on September 16th that
he would send McGee some financial documents necessary to the
conference. Simpson claims to have sent the documents, although it is
undisputed that he never attended a settlement conference.
The district court instructed McGee to move to strike Simpson’s
answer and for default judgment. McGee did so and the court granted the
default judgment. Simpson claims to not have received notice of this
judgment until a debt collector came calling in May 2021. The reason,
according to Simpson, is that Brandon provided the court with an incorrect
email address for Simpson, so the court’s electronic notifications did not
reach him.
In October 2021, nearly a full year after judgment, Simpson moved to
set aside the default judgment under Federal Rule of Civil Procedure 60(b).2
He argued that the judgment should be set aside due to his mistaken email
address and because he did not receive notice of the default judgment. The
court denied the motion, stating that Simpson had not pressed a meritorious
2
See Fed. R. Civ. P. 60(b).
3
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No. 21-11231
defense and had not adequately kept himself apprised of the litigation. After
an unsuccessful motion for reconsideration, Simpson appealed to this court.
II
Under Federal Rule of Civil Procedure 60(b), a court “may set aside
a final default judgment.”3 It “may relieve a party” from a judgment due to,
inter alia, “excusable neglect,” “mistake,” or “void[ness].”4 This court
reviews a denial of a motion to set aside a default judgment for abuse of
discretion.5 We consider “whether the default was willful, whether setting it
aside would prejudice the adversary, and whether a meritorious defense is
presented.”6
A
Simpson argues that his judgment should be set aside due to
Brandon’s mistake regarding the email address. 7 Although the mistake is
uncontested,8 the district court rested its order on the fact that Simpson had
declined to present a meritorious defense to the underlying claim. Simpson’s
only argument was that his email was recorded incorrectly such that he did
3
Fed. R. Civ. P. 55(c).
4
Fed. R. Civ. P. 60(b)(1), (4).
5
Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 500 (5th Cir. 2015).
6
Id. (citation omitted); see also Jenkens & Gilchrist v. Groia & Co., 542 F.3d 114,
119-20 (5th Cir. 2008) (quoting Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000) (“A
district court has the discretion to refuse to set aside a default judgment . . . if the defendant
‘fails to present a meritorious defense sufficient to support a finding on the merits for the
defaulting party.’”)).
7
Life Partners has declined to file an appellee’s brief, so we consider only
Simpson’s arguments.
8
The Northern District of Texas’s clerk’s office eventually changed the email on
file for Simpson, but it informed him that he could have updated the email on file at any
time.
4
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not receive notice of the judgment against him. He did not offer a defense to
the judgment itself. Nor does Simpson press a defense on appeal—let alone
a meritorious one. We cannot say that the district court abused its discretion
in denying Simpson’s Rule 60(b)(1) motion based on the email mistake.9
B
Simpson also contends that he was deprived of due process because
he was not given notice of the default judgment.10 While we liberally construe
pro se briefs, there must be an argument for us to construe.11 There is a single
mention of this argument in Simpson’s brief. But even assuming Simpson
has sufficiently presented this argument on appeal, he did not raise it at the
district court. “A party forfeits an argument by failing to raise it in the first
instance in the district court . . . .”12 This argument is forfeited, and we do
not consider it.
* * *
Because Simpson has not pressed a meritorious defense, we
AFFIRM.
9
See Wooten, 788 F.3d at 500.
10
See Fed. R. Civ. P. 60(b)(4) (providing for relief from “void” judgments);
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (holding that rule
60(b)(4) applies “in the rare instance where a judgment is premised . . . on a violation of
due process that deprives a party of notice or the opportunity to be heard”).
11
Rutila v. Dep’t of Transp., 12 F.4th 509, 511 (5th Cir. 2021) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (“‘A document filed pro se is to be liberally construed.’”));
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
12
Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).
5