IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50001
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
$6,130.00 IN U.S. CURRENCY,
Defendant,
and RICHARD R. OCHOA,
Claimant-Appellant.
_______________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 93-CV-695
_____________________________________
August 14, 1995
Before GARWOOD, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Richard R. Ochoa has moved for leave to appeal in forma
pauperis (IFP) in his appeal from the district court's denial of
his motion to set aside a default judgment. To proceed IFP on
appeal, Ochoa must show that he is a pauper and that he will
present a nonfrivolous issue on appeal. Carson v. Polley, 689
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-50001
-2-
F.2d 562, 586 (5th Cir. 1982). Ochoa has established his pauper status.
The dispositive issue on appeal is whether the district
court abused its discretion in denying IFP and refusing to set
aside the default judgment because Ochoa had not shown excusable
neglect for failing to respond to the Government's complaint
against the $6,130.
FED. R. CIV. P 55(c) provides that for good cause shown a
judgment of default may be set aside in accordance with Rule
60(b). Under Rule 60(b), a court may relieve a party from a
final judgment, order, or proceeding for "(1) mistake,
inadvertence, surprise, or excusable neglect; . . . or (6) any
other reason justifying relief from the operation of the
judgment." FED. R. CIV. P. 60(b). This court reviews a district
court's decision denying such relief for abuse of discretion.
Matter of Dierschke, 975 F.2d 181, 183 (5th Cir. 1992).
The judgment on appeal is the district court's denial of
Ochoa's Rule 60(b)/55(c) motion. "[T]he denial of a Rule 60(b)
motion does not bring up the underlying judgment for review."
Matter of Ta Chi Navigation (Panama) Corp., S.A., 728 F.2d 699,
703 (5th Cir. 1984); see Aucoin v. K-Mart Apparel Fashion Corp.,
943 F.2d 6, 8 (5th Cir. 1991) (appeal from ruling on Rule 60(b)
motion not treated as an appeal from the underlying order
itself).
A district court's ruling on a Rule 55(c) motion is reviewed
for abuse of discretion, but "the standard for setting aside a
default decree is less rigorous than [that for] setting aside a
judgment for excusable neglect." See United States v. One Parcel
No. 95-50001
-3-
of Real Property, 763 F.2d 181, 183 (5th Cir. 1985) (citation
omitted). Factors relevant to a determination under Rule 55(c)
is "whether the default was willful, whether setting it aside
would prejudice the adversary, and whether a meritorious defense
is presented." Id. (citation omitted). Under either standard as
applied to Ochoa's appeal, there was no abuse of discretion.
Rule 60(b) affords no relief if a party fails to receive
notice of the entry of a court's order. Latham v. Wells Fargo
Bank, N.A., 987 F.2d 1199, 1204-05 (5th Cir. 1993). Denial of a
Rule 60(b) motion under the "excusable neglect" clause is not an
abuse of discretion when the proffered justification for relief
is the inadvertent mistake of counsel. Edward H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 356-57 (5th Cir. 1993). A party has a
duty of diligence to inquire about the status of a case. Id. at
357. Gross carelessness, ignorance of the rules, or ignorance of
the law are insufficient bases for Rule 60(b) relief. Id.
To gain relief under Rule 60(b)(6), a party must show the
initial judgment to have been manifestly unjust. Id. However, a
party remains under a duty to take legal steps to protect his own
interests. Id. Clause (6) of Rule 60(b) is a narrow means of
accomplishing justice under exceptional circumstances. Id.
Ochoa's argument for relief under Rule 60(b) admits his own
negligence in monitoring the litigation and his own ignorance of
the law and rules of procedure. The record shows proper notice
of the trial date was published, was received by Ochoa in prison,
and was sent to Ochoa's attorney.
No. 95-50001
-4-
The district court did not abuse its discretion in denying
the Rule 60(b) motion for relief from judgment. Because no
nonfrivolous issue has been presented, the appeal is frivolous is
DISMISSED. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983);
5TH CIR. R. 42.2.