UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-2556
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONE 1988 DODGE PICKUP,
ROBERT QUINTANILLA-BUENDIA,
Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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Before GARWOOD, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
This litigation was commenced when the United States (the
Government), on February 12, 1991, filed a complaint for forfeiture
alleging that a Mexican-made Dodge pickup truck brought into the
United States was subject to forfeiture pursuant to 19 U.S.C. §§
1608, 1613. Pursuant to Rule C(3) of the Supplemental Rules for
Certain Admiralty and Maritime Claims, the clerk of the district
court issued a warrant of arrest for the defendant pickup truck.
Notice of the action and arrest was then published in a newspaper
of general circulation in the district on March 17, 24, and 31,
1991. Any interested claimant was required to file a claim by
April 10, 1991, and serve his answer within twenty days after the
filing of the claim. See Rule C(6) of the Supplemental Rules. As
no claim or answer challenging the forfeiture was made, the
Government filed a motion for entry of default decree of forfeiture
on April 16, 1991. The district court's default judgment
forfeiting the truck to the United States was entered the following
day, April 17. On April 22, 1991, appellant Robert Quintanilla-
Buendia (Buendia), alleging that he owned the vehicle, filed and
served a motion to set aside the default judgment, which the
district court denied on May 15, 1991. Buendia then filed and
served a motion for rehearing on May 22, 1991, and a notice of
appeal on May 28, 1991. The motion for rehearing was denied by the
district court on May 29, 1991. No subsequent notice of appeal was
filed.
We initially address whether the May 28 notice of appeal was
nullified under Fed. R. App. P. 4(a)(4) by the May 22 motion for
rehearing that was not disposed of until May 29. If, under Harcon
Barge Co. v. D&G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en
banc), cert. denied, 107 S.Ct. 398 (1986), the April 22 motion to
set aside the April 17 default judgment is treated, for purposes of
Rule 4(a)(4), as a motion under Fed. R. Civ. P. 59, then the notice
of appeal would not be nullified by the pendency of the May 22
motion for rehearing. This is because in that situation the May 22
motion for rehearing, complaining of the May 15 order overruling
the April 22 motion, would, under Harcon Barge, be regarded as a
Rule 59 motion directed to the overruling of a prior Rule 59 motion
2
(the April 22 motion); as such, the May 22 motion would not come
within Rule 4(a)(4) because Rule 4(a)(4) does not embrace a second
Rule 59 motion that merely challenges the denial of the original
Rule 59 motion. Ellis v. Richardson, 471 F.2d 720, 721 (5th Cir.
1973); Harrell v. Dixon Bay Transportation Co., 718 F.2d 123, 127
(5th Cir. 1983). On the other hand, if the April 22 motion,
despite being filed and served within ten days after the April 27
judgment it sought to set aside, is regarded as being under Fed. R.
Civ. P. Rule 60(b), rather than under Rule 59, and thus as not
within Rule 4(a)(4), see Browder v. Director, 98 S.Ct. 556, 560 n.7
(1978), then the May 22 motion for rehearing would nullify the
notice of appeal under Rule 4(a)(4). This is because an order (in
this case that of May 15) denying a motion that is treated as one
under Rule 60(b) is not only itself appealable, but is also
properly subject to a Rule 59 motion (here the May 22 motion), and
in such an instance a timely Rule 59 motion brings into play Rule
4(a)(4). Eleby v. American Medical Systems, 795 F.2d 411, 412-413
(5th Cir. 1986). Under that hypothesis, the May 22 motion, filed
within ten days of the May 15 order it sought to set aside, would
be regarded as a Rule 59 motion under Harcon Barge, and, as it was
not disposed of until May 29, would nullify the May 28 notice of
appeal.
We conclude that the April 22 motion is properly treated, for
purposes of Rule 4(a)(4), as one under Rule 59, and that
accordingly the May 28 notice of appeal was not nullified.
Although the April 22 motion recites that it is a "Motion to
Set Aside Default Judgment pursuant to Rule 55(c) and Rule 60(b) of
3
the Federal Rules of Civil Procedure," it is clear that the proper
characterization of the motion for these purposes is not determined
by the label that the motion bears. The rule of Harcon Barge
applies "regardless of how . . . [the motion] is styled", and
"'however it is styled.'" Id. at 668, 670; Bodin v. Gulf Oil
Corp., 877 F.2d 438, 440 (5th Cir. 1989).
A more persuasive argument against treating the April 22
motion as one under Rule 59 is the provision of Fed. R. Civ. P.
Rule 55(c) that "for good cause shown, the court . . . if a
judgment by default has been entered, may likewise set it aside in
accordance with Rule 60(b)." See also 10 Wright, Miller & Kane,
Federal Practice and Procedure: Civil 2d § 2692, p. 465 (1983)
("Rule 55(c) expressly makes the procedure and grounds set out in
Rule 60(b) for relief from final judgments applicable to default
judgments."). The First and Eleventh Circuits have relied on this
language in Rule 55(c) to hold that a motion to set aside default
judgment, filed within ten days after the judgment but not denied
until more than thirty days thereafter, was not a Rule 59 motion,
and hence did not come within Rule 4(a)(4) so as to postpone
running of the time to give notice of appeal. In each case, the
only notice of appeal was given within thirty days after the order
overruling the motion to set aside the default judgment, and the
court of appeals took jurisdiction of the appeal from that order
(as to which no motion for reconsideration had been filed in the
trial court) and ultimately reversed it, though applying a standard
of review stated to be more restrictive than if the default
judgment itself had been timely appealed. Echevarria-Gonzalez v.
4
Gonzalez-Chapel, 849 F.2d 24 (1st Cir. 1988); Gulf Coast Fans v.
Midwest Electronics Importers, 740 F.2d 1499 (11th Cir. 1984).
Gulf Coast was decided before Harcon Barge and Echevarria does not
cite it or any of its progeny, such as Charles v. Daley, 799 F.2d
343, 347 (7th Cir. 1986). On the other hand, the Seventh Circuit
in essentially the same situation has applied Harcon Barge and
Charles to hold that a motion to set aside default judgment, served
within ten days after entry of the judgment, invoked Rule 4(a)(4),
so that the time for giving notice of appeal did not start running
until the district court overruled the motion, and that hence a
notice of appeal given within thirty days thereafter was a timely
appeal of both the default judgment itself and the order denying
the motion to set it aside. Anilina Fabrique de Colorants v.
Aakash Chemicals, 856 F.2d 873, 876 (7th Cir. 1988). See also Sine
v. Local No. 992, 790 F.2d 1095 (4th Cir. 1986) (pendency of timely
motion under Rule 59 to set aside default judgment renders notice
of appeal filed before motion disposed of a nullity under Rule
4(a)(4)).
We elect to follow the approach taken by the Seventh Circuit
in Anilina. As we stated in Bodin: "'[a]ny motion that draws into
question the correctness of the judgment is functionally a motion
under Rule 59(e)'" (id. at 440, quoting Harcon Barge at 669). In
Willie v. Continental, 784 F.2d 706, 707 (5th Cir. 1986) (en banc),
we observed "In our en banc decision today in Harcon Barge, we hold
that any motion to amend a judgment served within ten days after
the entry of judgment, except for a proper Rule 60(a) motion to
correct purely clerical errors, is to be considered a Rule 59(e)
5
1
motion." No exception is made or suggested for default judgments.
To countenance such an exception would undermine the central
rationale of Harcon Barge, which was to create a uniform
"brightline rule." Id. at 670. See also Charles at 347. Nor do
we consider that Rule 55(c) mandates a different result. While
that rule does call Rule 60(b) into play, Harcon Barge clearly
contemplates that its holding will apply even though the relief
sought is available under Rule 60(b) and the motion specifically
invokes Rule 60(b) alone. Nor does anything in the wording of Rule
55(c) expressly purport to make Rule 60(b) the exclusive vehicle by
which a default judgment may be set aside. We noted in Harcon
Barge that "[w]hile Rule 60(a), providing for the correction of
clerical errors, limits the otherwise unrestricted scope of Rule
59(e), the same cannot be said of Rule 60(b)." Id. at 669
(emphasis added).2 Whatever the effect of Rule 55(c) on the
1
See also Charles describing the holding in Harcon Barge,
which it adopts, as being "that all substantive motions served
within 10 days of the entry of a judgment will be treated as
based on Rule 59, and therefore as tolling the time for appeal."
Charles at 347.
2
We recognize that the Eleventh Circuit, in Gulf Coast,
stated that Rule 55(c) made Rule 60(b) the "exclusive, method for
attacking a default judgment in the district court." Id. at
1507. However, Gulf Coast gives no reasons for this conclusion
and cites no authority for it; moreover, Gulf Coast is pre-Harcon
Barge. In Echevarria, the First Circuit expressly declined to
"decide whether a Rule 60(b) motion is the sole mechanism for
attacking a default judgment," and instead relied on the fact
that the motion there "specifically invoked Rules 55(c) and
60(b)" and not Rule 59, id. at 27, a ground of decision plainly
at odds with the rationale of Harcon Barge (which Echevarria does
not cite). In Sine, the Fourth Circuit held that a default
judgment could be attacked by a Rule 59(e) motion; and the
Seventh Circuit likewise implicitly so held in Anilina, at least
for purposes of Harcon Barge and Rule 4(a)(4).
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standard to be applied in ruling on a motion to set aside a default
judgment served within ten days of the judgment's entry, or in
reviewing such a ruling on appeal, a matter we do not decide,3 we
conclude that it does not govern the determination of whether the
motion is within Rule 4(a)(4), and that such determination is
properly made under the brightline rule of Harcon Barge. It seems
evident that Rule 55(c) is not directed at the timing and
effectiveness of notice of appeal or the effect thereon of Rule
4(a)(4), which is all that Harcon Barge relates to. Thus,
application of Harcon Barge to default judgments will not undercut
the purpose or function of Rule 55(c).4
Accordingly, we conclude that the April 22 motion, filed and
served within ten days after entry of the April 17 judgment, was,
pursuant to Harcon Barge, a Rule 59(e) motion for purposes of Rule
3
As reflected in the text, infra, under no conceivable
standard would we hold that the district court erred in entering
the default judgment or overruling the April 22 motion.
4
We also observe that treating all motions seeking to set
aside a default judgment as Rule 60(b) motions has the
disadvantage, in the case of motions served within ten days of
the entry of the judgment, of enhancing the likelihood of
unnecessary appeals: the defaulted party, in order to appeal the
judgment itself instead of merely the denial of Rule 60(b)
relief, will often have to do so before the district court rules
on the motion (if the ruling is not made within thirty days of
the judgment's entry), and if the district court is inclined to
grant the motion, the appellate court will have to remand the
case for this purpose, while if the district court denies the
motion, a second appeal (often combined with a stay of the
initial appeal) will likely ensue. The Seventh Circuit
recognized at least some of these problems in dicta in its pre-
Harcon Barge opinion in Textile Banking Co. v. Rentschler, 657
F.2d 844, 849-50 & n.2 (7th Cir. 1981) (there, however, no timely
Rule 59 motion was filed in any event), but apparently regarded
them as insignificant. We view these potential inefficiencies
with somewhat more concern.
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4(a)(4). Hence, under Ellis, the May 22 motion attacking the May
15 denial of the April 22 motion, was not a motion within Rule
4(a)(4). Therefore, the May 22 motion, though not disposed of
until May 29, did not nullify the May 28 notice of appeal.5
We now turn to, and reject, Buendia's challenges to the
default judgment and the May 15 order overruling his motion to set
it aside. The record reflects that the vehicle had been seized in
August 1990 by United States Customs in Laredo, Texas, when Buendia
drove it across the border from Mexico. In November 1990, Buendia,
aided by the attorney who represents him here and represented him
below, filed a bond and claim respecting the vehicle with Customs,
5
Under Rule 4(a)(4), the timeliness of the notice of appeal
is plainly to be measured from May 15, when the order overruling
the April 22 motion (which we have held was a timely one under
Rule 59(e)) was entered. However, that makes no difference here
as, the Government being a party to the case, the time allowed
for notice of appeal is sixty days, Fed. R. App. P. 4(a)(1), so
the notice would be timely even if measured from April 17, when
the default judgment was entered.
The Government complains that the notice of appeal
references only the April 17 default judgment itself, not the May
15 order. But, as the May 15 order is one overruling a timely
Rule 59(e) motion, the notice of appeal clearly suffices to bring
up the April 17 judgment. Cf. Federal Trade Commission v.
Hughes, 891 F.2d 589 (5th Cir. 1990) (notice of appeal filed
after denial of Rule 60(b) motion but referencing only the
underlying judgment, and untimely as to it, does not suffice to
bring up the denial of the Rule 60(b) motion, although timely in
that respect). Moreover, the notice of appeal also suffices to
bring up the May 15 order. See Lloyd v. Gill, 406 F.2d 585, 587
(5th Cir. 1969) ("The denial of appellants' motion for new trial
is clearly reviewable here, since the appeal is from a final
judgment."); Provancial v. United States, 463 F.2d 760, 762 (8th
Cir. 1972) ("Although the notice of appeal did not state that the
appeal was being taken from the denial of the motion [for new
trial or to amend findings and judgment], review here of both the
judgment and the denial of the motion is proper."). Cf. Foman v.
Davis, 83 S.Ct. 227 (1962) (notice of appeal from denial of
timely Rule 59(e) motion brings up underlying judgment also).
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and both were notified that the United States Attorney would
institute judicial forfeiture proceedings in federal court.
Buendia and his attorney both reside in Laredo. In February 1991,
these proceedings were instituted in the Laredo Division of the
United States District Court for the Southern District of Texas.
Notice of the proceedings was published three times, March 17, 24,
and 31, 1991, in a newspaper of general circulation in Laredo. The
Assistant United States Attorney called Buendia's attorney's office
at least twice prior to April 4, 1991, and, Buendia's attorney
being unavailable, left his name, number, and a message about the
vehicle. Buendia's attorney received the messages. On April 4,
the Assistant United States Attorney wrote Buendia's attorney
advising that on April 8 he intended to file a motion for default
judgment in the judicial forfeiture proceeding. Buendia admits
that he received this letter on April 9. On April 10 the Assistant
United States Attorney mailed his motion for entry of default
judgment, sending a copy to Buendia's attorney at the same time.
No response was made by Buendia's attorney to any of the foregoing
until approximately April 10, when Buendia's attorney called but
the Assistant United States Attorney was unavailable. Moreover,
Buendia never filed or tendered a claim or answer in the judicial
forfeiture proceedings and never asserted anything in the way of
any even purported defense to the forfeiture.
The district court found that Buendia had adequate and timely
notice of the judicial forfeiture proceedings, that he had failed
to demonstrate good cause or excusable neglect for not sooner
filing a claim or answer in those proceedings, and that he had made
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no assertion or showing of any meritorious defense to the
forfeiture. The record amply supports these findings. Under these
circumstances, no error is demonstrated in either the district
court's default judgment or in its refusal to set that judgment
aside. See, e.g., United States v. One 1978 Piper Navajo, 748 F.2d
316, 318 (5th Cir. 1984) ("those claiming ownership in the . . .
[forfeited item] needed to prove both that their failure to timely
answer or otherwise defend was due to justifiable neglect and that
they had a defense to the forfeiture which would probably have been
successful").6
Accordingly, the district court's judgment is
AFFIRMED.
6
Because Buendia's appeal is so clearly lacking in merit, we
assume, arguendo only, that he has demonstrated adequate
standing, despite never having filed or tendered an actual claim
in the judicial forfeiture proceedings. Though we pretermit
decision of that question, we note the following.
The Supplemental Rules for Certain Admiralty and Maritime
Claims govern judicial forfeiture proceedings. See One 1978
Piper Navajo, 748 F.2d at 317. Buendia asserts that he complied
with the Supplemental Rules by filing a claim and a cost bond
prior to the start of judicial proceedings. However, under
Supplemental Rule C(6), a claimant must file his verified claim
within ten days of execution of process and serve his answer
within twenty days after the filing of the claim. The rule
states that a claimant "shall file his claim . . . after process
has been executed." At least one court has held that a claimant
may not satisfy the rule with a claim filed prior to execution of
process. United States v. U.S. Currency in the Amount of
$2,857.00, 754 F.2d 208, 213-14 (7th Cir. 1985). Moreover, a
recognized authority states that "[t]he filing of a claim is a
prerequisite to the right to file an answer and defending on the
merits." 7A Moore's Federal Practice ¶ C.16, p. 700.14 (2d Ed.
1988). See also Bank of New Orleans v. Marine Credit Corp., 583
F.2d 1063, 1068 (8th Cir. 1978); One 1978 Piper Navajo, 748 F.2d
at 319.
10