United States Court of Appeals
For the First Circuit
No. 03-1748
UNITED STATES,
Appellee,
v.
$23,000 IN UNITED STATES CURRENCY,
Defendant,
RENÉ RODRÍGUEZ-BARRIENTOS,
Claimant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Oberdorfer,* Senior District Judge.
Anne W. Marsh, with whom John F. Cicilline was on brief, for
appellant.
Isabel Muñoz-Acosta, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Miguel A. Fernández,
Assistant United States Attorney, were on brief, for appellees.
January 23, 2004
_____________________
*Of the United States District Court for the District of
Columbia, sitting by designation.
LIPEZ, Circuit Judge. Claimant René Rodríguez-Barrientos
("Rodríguez") asserts ownership of $23,000 seized by the United
States. The district court entered a default judgment in favor of
the United States, ruling that Rodríguez's claim was procedurally
deficient, and denied Rodríguez's subsequent motion to vacate and
motion to reconsider. Rodríguez now appeals the denial of the
motion to reconsider. After carefully considering the procedural
missteps in this case, some by Rodríguez and some by the court, we
affirm.
I.
On July 10, 2001, Rodríguez was scheduled to fly on a
commercial airline from the John F. Kennedy International Airport
("JFK") in Queens, New York to Luis Munoz Marin International
Airport ("LMMIA") in Carolina, Puerto Rico. Suspecting that
Rodríguez was carrying money to pay for a shipment of cocaine that
had arrived at JFK from LMMIA on June 24, 2001, agents of the U.S.
Drug Enforcement Agency detained Rodríguez at JFK while his flight
proceeded on to Puerto Rico carrying his checked luggage. The
agents questioned Rodríguez and obtained his consent to search his
luggage once it arrived at LMMIA. Upon searching his luggage, DEA
agents in Puerto Rico seized $23,000 in U.S. currency pursuant to
21 U.S.C. § 881(a)(6).
Subsequently, Rodríguez attempted to retrieve the seized
currency. The first step towards retrieving seized property is to
-2-
file a sworn claim of ownership with the agency that made the
seizure--here the DEA. 18 U.S.C. § 983(a)(2)(A) (2003). This
"verified administrative claim" notifies the agency of the party's
alleged interest in the property. Rodríguez properly filed a
verified administrative claim with the DEA on January 18, 2002,
asserting that he was the owner of the $23,000 seized at LMMIA.
Once a party has filed an administrative claim, the
government has 90 days either to file a complaint for forfeiture in
the district court or to release the property. 18 U.S.C.
§ 983(a)(3)(A)-(B) (2003). In this case, the government filed a
timely complaint for forfeiture on April 17, 2002, in the Puerto
Rico district court and served a copy of the complaint on
Rodríguez's counsel.1 The government also published notice of the
forfeiture in the May 8, 2002, edition of "El Nuevo Dia," a
newspaper of general circulation in Puerto Rico authorized for
notice purposes by Local Admiralty Rule G(3) of the Puerto Rico
District Court.2
1
Appellant claims that his counsel did not receive the
complaint until May 24, 2002. Because the district court granted
Rodríguez an extension of time to file his pleadings, and Rodríguez
met this extended schedule, the date on which his counsel received
the complaint is not relevant to determining Rodríguez's compliance
with the filing requirements.
2
Rule C(4) of the Supplemental Rules for Certain Admiralty and
Maritime Claims requires that, in a civil forfeiture proceeding,
the government "must promptly--or within the time that the court
allows--give public notice of the action and arrest in a newspaper
designated by court order and having general circulation in the
-3-
Rule C(6) of the Supplemental Rules for Certain Admiralty
and Maritime Claims governs pleading in a civil forfeiture
proceeding. See, e.g., United States v. One Dairy Farm, 918 F.2d
310, 311 (1st Cir. 1990). That rule, as it existed during the
lower court proceedings in this case, requires that any person with
a claim to the property must file a "verified statement identifying
that interest or right" ("verified statement") within 20 days of
actual notice or completed publication of notice, or within the
time the court allows.3 The claimant must then serve an answer to
the complaint within 20 days of filing the verified statement.4
district.... The notice must specify the time under Rule C(6) to
file a statement of interest in or right against the seized
property and to answer."
3
In previous cases, such as United States v. One Urban Lot,
885 F.2d 994, 999 (1st Cir. 1989), we have referred to the
"verified statement" as a "verified claim." The year 2000
Amendments to Rule C(6) changed the terminology from "claim" to
"statement." The Advisory Committee notes explain that the change
"permits parallel drafting, and facilitates cross references in
other rules. The substantive nature of the statement remains the
same as the former claim." Thus, despite the different
terminology, the "verified statement" we refer to now is
functionally identical to the "verified claim" we have referred to
in the past when discussing the requirements of Rule C(6).
4
When this case was first before the district court, prior to
the amendments effective December 1, 2002, Rule C(6) stated that:
(i) a person who asserts an interest in or
right against the property that is the subject
of the action must file a verified statement
identifying the interest or right:
(A) within 20 days after the earlier of
(1) the actual notice of execution of process
or (2) completed publication of notice under
-4-
Rodríguez requested an extension of time. On May 28, 2002, the
district court granted him a 30-day extension to file his
pleadings.
Rodríguez filed an answer on June 27, 2002, but he
neglected to file the verified statement required by Rule C(6). On
July 3, 2002, the government filed two motions: one to strike the
answer because Rodríguez had never filed a verified statement, and
one to enter a "Default Decree of Forfeiture." Copies of these
motions were served on Rodríguez's counsel. Nevertheless,
Rodríguez did not reply to either motion. On July 16, 2002, the
district court granted the government's motion for a "Default
Decree of Forfeiture," forfeiting the $23,000 to the government.
On July 22, 2002, appellant filed a motion to vacate the
judgment by default. He attached a copy of his verified
administrative claim and argued that, although it was originally
Rule C(4), or
(B) within the time that the court
allows.
...
(iii) a person who files a statement of
interest in or right against the property must
serve an answer within 20 days after filing
the statement.
The 2002 amendments, none of which affect the judgment in this
case, allow 30 days to file a verified statement, change the first
alternative event for measuring the 30 days to the government's
service of the complaint, and allow 20 days to both serve and file
an answer after the filing of the verified statement.
-5-
filed with the DEA and had not previously been before the court,5
it was a sufficient substitute for the verified statement required
by Rule C(6). He did not offer any explanation for the failure to
file the verified statement required by the rules before filing his
answer, and he did not ground his motion to vacate in any
particular rule.
In a written order entered on January 28, 2003, the court
rejected appellant's argument that filing a verified administrative
claim fulfilled the pleading requirements of Rule C(6). The court
cited precedent that filing a verified statement is required to
establish standing in a civil forfeiture case. It also
distinguished this case, in which the claimant filed an unverified
answer, from the exception we adopted in United States v. One Urban
Lot, where we held that a verified answer "can serve as both a
[verified statement] and answer." 885 F.2d 994, 1000 (1st Cir.
1989). The court did not, however, specify the rule or standard of
relief that it applied to the motion to vacate the default
judgment.
5
At oral argument, appellant claimed that the U.S. Attorney's
office had forwarded the administrative claim to the district
court. Appellee denied this, and we can find no evidence in the
record that the U.S. Attorney forwarded the administrative claim to
the district court. Rather, it appears that the court had the
administrative claim before it for the first time when claimant
filed a motion to vacate.
-6-
On February 3, appellant submitted a motion to reconsider
the denial of the January 28 motion. Again he attached a copy of
the verified administrative claim and again he argued that it
fulfilled the verification requirement of Rule C(6). He did not
invoke a particular rule when filing his motion. On February 5,
the government filed an opposition to the motion.
On April 23, the court denied the motion to reconsider,
which it characterized as a request for relief under Rule 60(b).
After quoting Rule 60(b) in its entirety, but without citing any
one of the six possible grounds for vacating a judgment under Rule
60(b), the court reiterated that the filing of a verified
administrative claim and an unverified answer does not meet the
requirements of Rule C(6) and is not sufficiently similar to the
filing of a verified answer to invoke the exception we adopted in
One Urban Lot. Rodríguez now appeals the district court's denial
of the motion to reconsider.
II.
A. Default
The filing of a verified statement, as required by Rule
C(6), is no mere procedural technicality. It forces claimants to
assert their alleged ownership under oath, creating a deterrent
against filing false claims. See, e.g., United States v. Commodity
Account No. 549 54930, 219 F.3d 595, 597 (7th Cir.
2000)("Verification forces the claimant to place himself at risk
-7-
for perjury of false claims, and the requirement of oath or
affirmation is not a mere technical requirement that we easily
excuse."). For this reason, filing a verified statement is
normally "a prerequisite to the right to file an answer and defend
on the merits." One Dairy Farm, 918 F.2d at 311 (quoting United
States v. Fourteen (14) Handguns, 524 F.Supp. 395, 397 (S.D. Tex.
1981)); see also One Urban Lot, 885 F.2d at 999 ("[S]ympathy alone
does not suffice to require the district judge to disregard
[claimants'] complete failure to abide by the command of Supp. Rule
C(6) to file a verified claim or answer."). When a claimant files
only an answer without a verified statement, the district court may
strike the answer. See, e.g., United States v. Beechcraft Queen
Airplane, 789 F.2d 627, 630 (8th Cir. 1986)(holding that "the
District Court did not abuse its discretion by requiring strict
compliance with Rule C(6) and striking [claimant's] answer because
he did not precede it with a verified [statement].").
The failure to file a verified statement implicates
Federal Rule of Civil Procedure 55, which governs the entry of a
default judgment. See, e.g., One Urban Lot, 885 F.2d at 997
(applying Rule 55 to a civil forfeiture default). The rule
distinguishes between the "entry of default" under Rule 55(a) and
"judgment by default" under Rule 55(b). Entry of default is an
interlocutory order--entered in anticipation of a final judgment--
formally recognizing that a party "has failed to plead or otherwise
-8-
defend as provided by [the Federal Rules of Civil Procedure]."
Fed. R. Civ. P. 55(a). Because Rodríguez did not file a verified
statement in accordance with Rule C(6), the court was entitled to
enter a default under Rule 55(a) for failing to "otherwise defend"
as required by the rules.
In contrast to the entry of default under Rule 55(a), a
Rule 55(b) judgment by default is a "final disposition of the case
and an appealable order" that has the same effect as a judgment
rendered after a trial on the merits. 10A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure:
Civil 3d, § 2684 (1998). Rule 55(b)(2) provides that the court may
enter a judgment by default provided that "[i]f the party against
whom judgment by default is sought has appeared in the action, the
party ... shall be served with written notice of the application
for judgment at least 3 days prior to the hearing on such
application."
In this case, Rodríguez's filing of an answer constituted
an appearance before the court. See 10A Wright, Miller & Kane, §
2686 (noting that an appearance merely "involves some presentation
or submission to the court."). Thus, he was entitled to notice,
under Rule 55(b)(2), of the application for a default judgment.
The government provided notice of the motion for a default judgment
by sending a copy to claimant's counsel via certified mail.
Receiving no opposition to the motion to enter a default judgment,
-9-
the court proceeded, on July 16, 2002, to issue a "Default Decree
of Forfeiture," which acted as a final judgment by default pursuant
to Rule 55(b)(2).
B. Motion to Vacate and Motion to Reconsider
Rule 55(c) applies different standards for setting aside
an entry of default under Rule 55(a) and a judgment by default
under Rule 55(b). A court may set aside an entry of default "for
good cause." This standard is "a liberal one," Coon v. Grenier,
867 F.2d 73, 76 (1st Cir. 1989); the relevant factors are "whether
(1) the default was willful, (2) a set-aside would prejudice
plaintiff, and (3) the alleged defense was meritorious." Keegel v.
Key West & Caribbean Trading Co., 627 F.2d 372, 373 (D.C. Cir.
1980). By contrast, the court can set aside a final judgment by
default only "in accordance with Rule 60(b)." Rule 60(b)(1), the
provision relevant here, requires a showing of "excusable neglect"
to win relief from a final judgment.6 This is a demanding
6
Rule 60(b) states in relevant part:
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 for the following
reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered
evidence which by due diligence could not
have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the
-10-
standard. See Coon, 867 F.2d at 76. It allows the court, "where
appropriate, to accept late filings caused by inadvertence,
mistake, or carelessness, as well as by intervening circumstances
beyond the party's control." Pioneer Inv. Servs. Co. v. Brunswick
Assoc. Ltd. P'ship, 507 U.S. 380, 388 (1993).7 However, "ignorance
of the rules, or mistakes construing the rules do not usually
constitute 'excusable' neglect...." Id. at 392. We have said
that, while other factors play an important role in the "excusable
neglect" analysis, "the reason-for-delay factor will always be
critical to the inquiry...." Hospital Del Maestro v. Nat'l Labor
Relations Bd., 263 F.3d 173, 175 (1st Cir. 2001)(quoting Lowry v.
McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000)). We
have also recognized that
judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (6) any
other reason justifying relief from the
operation of the judgment.
Fed. R. Civ. P. 60(b).
7
Although the "excusable neglect" standard at issue in Pioneer
arose under the bankruptcy code, the court's analysis applies to
the "excusable neglect" standard as used throughout the Federal
Rules of Civil Procedure, including Rule 60(b). See, e.g., Graphic
Communications Int'l Union Local 12-N v. Quebecor Printing
Providence, Inc., 270 F.3d 1, 5 (1st Cir. 2001); Davila-Alvarez v.
Escuela de Medicina Universidad Central de Caribe, 257 F.3d 58, 64
n.9 (1st Cir. 2001).
-11-
a trial judge has wide discretion in dealing
with a litigant whose predicament results from
blatant ignorance of clear or easily
ascertainable rules, and, if the trial judge
decides that such neglect is not excusable in
the particular case, we will not meddle unless
we are persuaded that some exceptional
justification exists.
Quebecor Printing, 270 F.3d at 6-7.8
In this case, Rodríguez filed two motions after the
judgment by default: the motion to vacate and the motion to
reconsider. Although the motion to vacate did not invoke Rule
60(b), and the district court did not explicitly rely on Rule 60(b)
in its decision, the motion was nonetheless a Rule 60(b) motion
because it sought to vacate a final judgment by default that, by
the explicit terms of Rule 55(c), may be "set... aside in
accordance with Rule 60(b)." Rodríguez’s second motion--the motion
to reconsider--essentially restated his claims from the motion to
vacate, but this time the court explicitly analyzed the motion
under Rule 60(b). In essence, the court allowed Rodríguez a second
chance to argue his prior motion to vacate. For the purposes of
this appeal, we accept the district court’s analytical framework
8
For cases finding excusable neglect, see 10A Wright, Miller
& Kane, § 2695 (citing examples of "excusable neglect" including
cases where the default was caused by lack of notice, illness,
death, withdrawal of counsel, misunderstandings between multiple
defendants, problems due to an out-of-state defendant and, in
limited circumstances, honest mistake).
-12-
and will treat the motion to reconsider as a Rule 60(b) motion.9
We review the district court’s denial of a Rule 60(b) motion for
abuse of discretion. See Cotto v. United States, 993 F.2d 274, 277
(1st Cir. 1993)("District courts enjoy considerable discretion in
deciding motions brought under Civil Rule 60(b). We review such
rulings only for abuse of that wide discretion.").
III.
A. Excusable Neglect
As stated above, the reason for delay is a critical
factor in the "excusable neglect" analysis. At no stage in this
process, either in the trial court or here, has appellant explained
why, after being granted a 30-day extension by the district court
to respond to the government's forfeiture complaint, he did not
comply with Rule C(6), did not oppose the government's motion to
9
We note that a motion "ask[ing] the court to modify its
earlier disposition of the case because of an allegedly erroneous
legal result is brought under Fed. R. Civ. P. 59(e)." Appeal of
Sun Pipe Line Co.,831 F.2d 22, 24 (1st Cir. 1987); see also 11
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civil 3d § 2810.1 (1998) ("Rule 59(e)...
include[s] motions for reconsideration."). Thus, Rodríguez’s
motion to reconsider was, in essence, a Rule 59(e) motion which was
filed within the required 10 days. However, Rule 59(e) "does not
provide a vehicle for a party to undo its own procedural
failures...." Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir.
1997). Moreover, the motion to reconsider filed by Rodríguez
merely restated the facts set out in the motion to vacate. The
repetition of previous arguments is not sufficient to prevail on a
Rule 59(e) motion. See FDIC v. World Univ. Inc., 978 F.2d 10, 16
(1st Cir. 1992) ("Motions under Rule 59(e) must either clearly
establish a manifest error of law or must present newly discovered
evidence.").
-13-
strike his answer, and did not ask the court for leave to file a
verified statement and new answer after the court entered its
judgment by default. At each stage, appellant has instead argued
that his filing of a verified administrative claim somehow negates
the requirement to file a verified statement in the judicial
forfeiture proceeding pursuant to Rule C(6), despite the absence of
any precedent supporting that proposition.
We acknowledge that both the administrative claim and
verified statement contain essentially the same information: they
identify the property, the claim to the property, and bear a sworn
statement by the claimant asserting his or her claim. 18 U.S.C. §
983(a)(2)(A) (2003); Fed. R. Civ. P., Supp. R. C(6). Nevertheless,
the two documents serve distinct purposes: the administrative claim
notifies the agency of the claim while the verified statement
notifies the court. This distinction is important, inter alia,
because the party that files an administrative claim may not be the
only party with a claim against the property. More than one
claimant may emerge to file a verified statement after public
notice of the complaint for forfeiture. Filing a verified
statement with the court notifies all other parties of each claim
to the property so that all interests may properly be resolved.
For this reason, the facial similarity between the two documents
does not negate the obligation to file a verified statement. See,
e.g., United States v. $2,857.00, 754 F.2d 208, 212 (7th Cir.
-14-
1985)("An administrative claim does not give the claimant any
rights in the judicial condemnation proceeding; it only ensures
that a judicial proceeding will take place before the property is
forfeited.").
Appellant also makes a passing reference in his brief to
the difficulty caused by his incarceration in Puerto Rico and the
apparent language barrier between Rodríguez and his counsel.
Nevertheless, appellant did not present this argument in his motion
to vacate and does not explain why these difficulties, which did
not prevent him from filing a timely verified administrative claim,
prevented him from filing a verified statement. Under the
circumstances, we can find no abuse of discretion in the district
court's refusal to vacate the default judgment pursuant to Rule
60(b) on the basis of excusable neglect.
B. Good Cause
Finally, Rodríguez attempts to avoid the "excusable
neglect" analysis by arguing that his submission of a verified
administrative claim to the court in conjunction with his motion to
vacate invoked the Rule 55(c) "good cause" standard of review. He
argues that the district court erred as a matter of law in applying
the Rule 60(b) standard because appellant's procedural deficiency
(failure to file a verified statement) only justified an entry of
default rather than a judgment by default. If the court could only
-15-
enter a default under Rule 55(a), the more lenient Rule 55(c) "good
cause" standard should have applied to the request for relief.
Appellant analogizes his case to that of the claimant in
One Urban Lot, whose pleadings were sufficient to present a valid
claim to the property even absent the filing of a verified
statement. In One Urban Lot, we found no abuse of discretion where
the district court entered a default judgment against three
claimants who did not file a verified statement. However, in the
case of one claimant who filed a verified answer, we held that such
an answer submitted prior to judgment by default, if it includes
all of the material normally contained in a verified statement,
"can serve as both a [verified statement] and answer." 885 F.2d at
1000. Hence the district court should not have stricken that
answer. Furthermore, with the verified answer still in place, the
district court in One Urban Lot should not have elevated the entry
of default to a judgment by default under Rule 55(b), susceptible
to relief only under Rule 60(b). Instead, the district court
should have applied the more lenient Rule 55(c) "good cause"
standard and set aside the entry of default on that basis.10
10
The court in One Urban Lot also wrote that "since we have
determined that the substance of a valid claim was before the court
in the form of a verified answer, there was no default. There
being no default, a default judgment could not be entered. Thus we
need not analyze the elements of 'good cause'...." 885 F.2d at
1001. Arguably, this statement is inconsistent with the court's
earlier assertion that it was applying the "good cause" standard of
Rule 55(c). However, we read the court to be saying that it did
-16-
Appellant now invites us to extend the exception of One
Urban Lot and apply the Rule 55(c) "good cause" standard to parties
who provide only an unverified answer prior to default, and a sworn
claim of interest only after the court has entered a judgment by
default. We decline the invitation.
Even assuming that the administrative claim would be a
valid substitute for a verified statement,11 we cannot fault the
district court, in the exercise of its discretion, for refusing to
vacate a default judgment upon presentation of a verified document
that should have been filed prior to default. The timely filing of
a verified statement "force[s] claimants to come forward as soon as
possible after forfeiture proceedings have begun...." One Urban
Lot, 885 F.2d at 1001. Allowing claimants to rely on a verified
administrative claim filed after the court has entered a default
judgment would undermine this important goal of timeliness and an
important related value--the finality of judgments. See, e.g.,
Custis v. United States, 511 U.S. 485, 497 (1994) ("'[I]nroads on
the concept of finality tend to undermine confidence in the
integrity of our procedures' and inevitably delay and impair the
not have to analyze discretely the elements of good cause
(willfulness, prejudice, a meritorious defense) because the filing
of a verified answer so clearly constituted "good cause" to set
aside the entry of default.
11
We express no opinion on whether a verified administrative
claim, filed prior to default, would be an adequate replacement for
a verified statement in accordance with Rule C(6).
-17-
orderly administration of justice."). Moreover, we take judicial
notice of the fact that the Puerto Rico District Court is an
exceptionally busy court, where the pressures for timely
proceedings are relentless.12 The requirement that a verified
statement be filed before the filing of an answer was clearly set
forth in Rule C(6), and there was nothing difficult about the
compliance with this requirement. The district court was entitled
to insist upon procedural regularity.
In reaching this conclusion, we have considered several
procedural irregularities in this case that, in some circumstances,
might justify applying the Rule 55(c) “good cause” standard rather
than the Rule 60(b) "excusable neglect" standard. First, while the
local rules of the Puerto Rico district court require a party to
respond to motions within ten days, the district court waited only
eight computable days after the government filed its motions before
entering its default decree.13 Second, instead of ruling separately
12
In the five year period from 1998 until 2002, the Puerto Rico
district courts saw 2121 cases filed per judgeship. This number is
the highest in the First Circuit and 34% greater than that of the
District of Massachusetts, the second-busiest district in cases per
judgeship. United States Courts for the First Circuit 2002 Annual
Report, August 2003, at 89-122, available at
http://www.ca1.uscourts.gov/circuitexec/2002annualrpt.pdf.
13
Puerto Rico District Court Local Rule 7(b) (formerly Rule
311.5) provides that a party must respond to a motion within ten
days of its service or be deemed to have waived objection.
Pursuant to Fed. R. Civ. P. 6(a), the day of filing is not included
in calculating time, and "[w]hen the period of time prescribed or
allowed is less than 11 days, intermediate Saturdays, Sundays and
-18-
on the motion to strike the answer, the court treated the answer as
stricken in its default decree.14 Finally, the district court did
not explicitly enter a default pursuant to Rule 55(a) prior to
entering a default judgment under Rule 55(b).15
On the facts of this case, however, these procedural
irregularities do not warrant 55(c) “good cause” review. Appellant
legal holidays shall be excluded in the computation." The
government filed its motion on Wednesday, July 3, 2002. Excluding
intermediate weekends and the July 4 holiday, only eight days of
the ten day period had expired when the district court entered the
default judgment on July 16, 2002.
14
The record indicates no disposition of the motion to strike.
However, in denying Rodríguez's motion to vacate, the district
court wrote that, when it had issued its default judgment, "no
claims had been filed to the verified complaint.... [A]lthough an
answer was filed, it was insufficient to be considered a claim."
Thus, the district court treated the record before it as if it had
stricken the answer.
15
"Prior to obtaining a default judgment under [Rule 55(b)],
there must be an entry of default as provided by Rule 55(a)." 10A
Wright, Miller & Kane, § 2682. Thus, if the court had strictly
adhered to the rules in this case, the court should have allowed
ten days, pursuant to Local Rule 7(b), before ruling on the motion
to strike the answer. After striking the answer, the court was
entitled to enter a default pursuant to Rule 55(a) because, since
Rodríguez's answer had been stricken, he had no pleading before the
court. However, as previously stated, Rodríguez's deficient
pleading was enough to constitute an appearance. Therefore, the
court should have given him at least three days notice pursuant to
Rule 55(b)(2) prior to entry of a default judgment. Fed. R. Civ.
P. 55 ("If the party against whom judgment by default is sought has
appeared in the action, the party ... shall be served with written
notice of the application for judgment at least 3 days prior to the
hearing on such application."); see also 10A Wright, Miller &
Kane, § 2687 ("Under Rule 55(b)(2), a party ... who has appeared
in an action but has failed to defend must be given written notice
of an application to the court for entry of a judgment by
default.").
-19-
has not argued, before either the district court or on appeal, that
any of these missteps require application of the “good cause”
standard or that they prejudiced his case. Thus, these arguments
are waived. See, e.g., Smilow v. Southwestern Bell Mobile Sys.,
323 F.3d 32, 43 (1st Cir. 2003)("Issues raised on appeal in a
perfunctory manner (or not at all) are waived."). Further, we have
no reason to believe that these missteps by the court denied
Rodríguez a fair review of his claim. Each occurred after the time
for filing a verified statement had expired, including a 30-day
extension granted by the court. We see no evidence that Rodríguez
would have remedied his procedural deficiency if the court had
waited the full ten days before entering a default judgment instead
of eight, or if the court had first entered a default before
entering a default judgment. Nothing in the history of the case
barred the court from striking the answer explicitly and separately
if it had chosen to do so. Finally, the court gave careful
consideration on two occasions to Rodríguez's request for 60(b)
relief.
IV.
Rodríguez filed deficient pleadings, failed to remedy
those pleadings, and failed to explain his procedural missteps.
While we "recognize the desirability of deciding disputes on their
merits," Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local
59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992), we
-20-
cannot say that the district court abused its discretion by
embracing the countervailing goals of timeliness and the finality
of judgments. Our ruling is in accord with other Courts of Appeals
that have similarly found no abuse of discretion when a district
court requires claimants to comply strictly with the verified
statement requirement of Rule C(6). See, e.g., Beechcraft Queen
Airplane, 789 F.2d at 630; United States v. $2,857, 754 F.2d 208
(7th Cir. 1985); United States v. One 1978 Piper Navajo PA-31
Aircraft, 748 F.2d 316 (5th Cir. 1984).
AFFIRMED.
-21-