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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 15-14799, 16-10919
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-20263-UU
SAFARI PROGRAMS, INC.,
d.b.a. Safari Ltd.,
Plaintiff - Appellee,
versus
COLLECTA INTERNATIONAL LIMITED,
A Hong Kong Company,
Defendant - Appellant,
QUERICA, INC.,
a Florida Corporation,
d.b.a. IQON,
Defendant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(April 25, 2017)
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Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff Safari Programs, Inc., (“Safari”) brought this lawsuit against
CollectA International Limited (“CollectA”) for false advertising under the
Lanham Act, 15 U.S.C. § 1125(a), and unfair competition under the Florida
common law. CollectA appeals the final default judgment entered against it and
the district court’s refusal to set aside the judgment under Rule 60(b), Fed. R. Civ.
P. In support of its appeal, CollectA presents two main arguments: (1) the district
court should have set aside the default judgment under Rule 60(b) because
CollectA established that its failure to timely respond to Safari’s complaint was the
result of “excusable neglect”; and (2) CollectA was entitled to an opportunity to be
heard on the issue of damages and injunctive relief before the district court entered
the final default judgment.
We vacate both the denial of CollectA’s Rule 60(b) motion and the final
default judgment. On the issue of excusable neglect, we conclude that the district
court abused its discretion by failing to apply the proper legal standard. On the
issue of damages, we conclude that the district court abused its discretion by
entering a final default judgment without holding an evidentiary hearing to
determine damages and injunctive relief. We remand for further proceedings
consistent with this opinion.
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I. Background
A. Underlying Case
Safari initiated this lawsuit in January 2015 in the Southern District of
Florida. According to Safari’s complaint, both CollectA, a foreign company
located in Hong Kong, and Safari manufacture and sell specialty toy figurines.1
They are direct competitors. Quercia, Inc., d/b/a IQON (“IQON”), a Florida
corporation, was the exclusive distributor of CollectA’s products in the United
States. IQON was formed by David Quercia (“Quercia”), a former “high-ranking
employee with Safari.”
Safari claimed that “CollectA/IQON” made the following false or
misleading advertisements to the public: (1) that CollectA had been manufacturing
toy animal figurines for over 30 years, despite not existing prior to 2010; (2) that it
was a European brand, despite manufacturing its specialty toys in Hong Kong or
China; and (3) that it was the “#1 requested brand worldwide.” For remedies,
Safari sought an accounting of profits from the time the allegedly false
advertisements were first disseminated, disgorgement of profits, and injunctive
relief.
1
On appeal, Safari elaborates that both Safari and CollectA manufacture and sell high-
quality miniature replicas of dinosaurs, wildlife, and other figures, for resale in museums, zoo
gift shops, educational stores, and science sections of toy stores.
3
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On June 2, 2015, the district court dismissed IQON from the action for
Safari’s failure to effect timely service. But the court allowed Safari additional
time to serve CollectA, the foreign defendant. On August 7, 2015, Safari filed
documents reflecting that service had been effected on CollectA on June 24, 2015.
On August 14, 2015, the district court sua sponte issued an order requiring
Safari to show cause why it had not moved for a clerk’s entry of default against
CollectA, given that CollectA has not responded to Safari’s complaint by July 15,
2015, the deadline for a responsive filing based on the date of service. Safari
moved for a clerk’s entry of default against CollectA on August 20, 2015. The
clerk entered default against CollectA on August 25, 2015. That same day, the
court sua sponte ordered Plaintiff to file a motion for final default judgment against
CollectA no later than September 4, 2015.
On September 3, 2015, Safari moved for entry of final default judgment
against CollectA. Safari claimed that default judgment should be entered as to
CollectA’s liability on the merits and that Safari’s damages could be established by
affidavit. In support of its damages request, Safari submitted an affidavit from
Alexandre Pariente, the CEO of Safari, which purported to calculate Safari’s lost
profits due to CollectA’s false advertising. Comparing Safari’s sales figures at an
annual specialty toy show—which “may foreshadow the sales growth or loss of a
company during the remainder of the year”—from before and after the allegedly
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false advertising began, Pariente extrapolated that Safari had lost $5,875,026.36 in
profits because of the false advertising.2
On September 9, 2015, the district court received a letter from Ken Leung on
behalf of CollectA sent overnight from Hong Kong. In the letter, Leung stated that
CollectA had received the notice of clerk’s default on September 8, 2015. Leung
wrote that CollectA was “astonished” by the notice because Safari had filed an
identical case against CollectA in June 2015 in the same district. In CollectA’s
view, the second case had superseded the first case and the clerk’s default in the
first case “should be invalid” as a result. Leung directed the court’s attention to the
civil cover sheet for the second case, which designated the origin of the case as
“Reinstated or Reopened.” Leung asked the court to “kindly let us know if our
understanding were [sic] incorrect.”
On September 17, 2015, the district court granted Safari’s motion for final
default judgment and, without notice, struck Leung’s letter because a corporation
must be represented by counsel and cannot appear pro se. See Palazzo v. Gulf Oil
2
According to Pariente’s affidavit, Safari had nearly doubled its sales at the annual
American Specialty Toy Retailing Association (“ASTRA”) show every year from 2011 to 2013,
rising from $22.158.65 in 2011, to $42,102.55 in 2012, and to $83,394.94 in 2013. In 2014,
however, the year CollectA began its allegedly false advertising, Safari’s ASTRA sales dropped
to $65,208.48, a decrease of 22% from the prior year, and 2015 “was on that same downward
trajectory.” Pariente explained that “[a]pplying the 22% representative loss” to Safari’s net
profits in 2014 ($2,694,719.00) “would amount to a $592,828.18 loss of potential profits.” And
had Safari realized the same nearly double annual rate of growth in 2014 as reflected in the years
2011–2013, Pariente stated, “Safari would have earned an additional $2,641,094.09 in net
profits.” “Applying the same formula to 2015,” Pariente claimed that the “same figure of
$2,641,094.09, should be applied to the year 2015 as well,” since the “sales trajectory for 2015
[was] essentially the same as 2014.”
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Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (corporations cannot appear pro se
and must be represented by counsel). The next day, and without holding a hearing
on damages, the court entered a final default judgment against CollectA in the
amount of $5,909,686.36, an amount composed of $5,875,026.36 in compensatory
damages, $1,300 in court costs, and $33,360 in attorney’s fees. The court also
entered a permanent injunction prohibiting CollectA from making the three false
advertisements alleged in the complaint.
On October 21, 2015, CollectA, represented by local counsel, filed a timely
notice of appeal from the final default judgment. That appeal was docketed in this
Court as No. 15-14799.
B. Safari’s Second Lawsuit against CollectA and IQON
As Leung’s September 9 letter to the district court noted, Safari filed a
second, identical complaint in the Southern District of Florida against both
CollectA and IQON (the “second case”) in June 2015, two days after the district
court dismissed IQON from the instant proceeding before Judge Ursula Ungaro
(the “first case”).3 Safari Programs, Inc. v. CollectA Int’l Ltd., U.S. Dist. Ct. for
S.D. Fla., Case no. 1:15-cv-22132-MGC, Doc. 1 (S.D. Fla. 2015). The civil cover
sheet for the second case listed the case origin as “Reinstated or Reopened,”
though it also listed the case before Judge Ungaro as a “Related Case.”
3
The complaint in the second case appears to be a verbatim copy of the complaint in the
first case. Indeed, the second complaint bears the same January 2015 date as the first complaint.
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On June 18, 2015, Judge Marcia Cooke, the district judge in the second case,
entered an order expediting service. In response, Safari again took steps to serve
both defendants. But once Judge Ungaro entered default judgment against
CollectA in the first case, Safari filed a notice voluntarily dismissing CollectA as a
defendant in the second case. In August 2016, Judge Cooke dismissed Safari’s
second case for failure to perfect service on IQON. It appears that soon after
dismissal of the second case, Safari filed a third lawsuit against IQON on August
22, 2016, which is now pending before a third judge, Judge Cecilia Altonaga, in
the Southern District of Florida under Case No. 1:16-cv-23611-CMA.
C. CollectA’s Motion for Relief from the Final Default Judgment
On October 23, 2015, two days after noticing its appeal from the final
default judgment, CollectA moved for relief from the judgment under Rule 60(b),
Fed. R. Civ. P. CollectA argued that relief was appropriate based on, among other
grounds, “mistake, inadvertence, surprise, or excusable neglect,” see Rule 60(b)(1),
and “any other reason that justifies relief,” see Rule 60(b)(6). 4
CollectA contended that the judgment should be reopened under either
(b)(1) or (b)(6) because Safari’s filing of a duplicative lawsuit against CollectA in
June 2015 was confusing and led CollectA to believe that Safari had abandoned the
first case and intended to proceed with the second. “[A]s a foreign defendant
4
CollectA also sought relief under Rule 60(b)(4) (authorizing relief where “the judgment
is void”), but it has abandoned reliance on this ground on appeal.
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unfamiliar with litigation in United States courts,” CollectA maintained that its
confusion was reasonable, as was its mistaken attempt to inform the court of its
position through Leung’s letter.
In support of its Rule 60(b) motion, CollectA submitted a declaration from
Leung, the General Manager of CollectA. Leung wrote that CollectA first learned
of the original lawsuit on February 25, 2015, when it received correspondence
from an attorney in the United States seeking to represent CollectA. Then, on June
15, 2015, CollectA was contacted by another attorney in the United States about
the second case. After viewing “online sources,” CollectA found that the second
case had been filed on June 4, 2015, after IQON had been dismissed as a defendant
in the first case. Noticing that the complaint filed in the second case was identical
to the complaint in the first case, CollectA believed that the service papers it later
received on June 24, 2015, “were for a lawsuit that had been dismissed or
withdrawn,” so CollectA waited for service of the second case. Leung stated that
CollectA had sought advice from a Hong Kong-based attorney who was admitted
to practice in the United States. Based on that consultation, it was CollectA’s
understanding that no further action was needed regarding the first case.
CollectA also maintained that it had meritorious defenses to Safari’s
complaint and that Safari would not be prejudiced by reopening the case, since
Safari was then litigating the same case against IQON before Judge Cooke.
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CollectA attached a proposed answer and affirmative defenses as well as affidavits
addressing its defenses. Finally, CollectA asserted that it was entitled to an
opportunity to defend itself on the issue of damages even if the court properly
entered default judgment as to liability.
Safari responded that CollectA’s reasons for not responding to the complaint
were insufficient to constitute excusable neglect because they either amounted to
attorney negligence or showed that CollectA did not have adequate internal
safeguards to timely respond to a lawsuit.
In reply, CollectA disputed Safari’s characterization of its grounds for relief
and reiterated that Safari’s actions reflected an intent to abandon the first case and
proceed with the second. In CollectA’s view, Safari was attempting to maintain
both lawsuits against CollectA “in order to double its odds at success, without
regard for the confusion caused by this behavior.”
D. District Court’s Denial of CollectA’s Rule 60(b) Motion
On February 2, 2016, the district court denied CollectA’s motion for relief
from the default judgment. On the question of “mistake, inadvertence, or
excusable neglect” under Rule 60(b)(1), the court explained that CollectA must
show three things: (1) it has a meritorious defense to the action; (2) granting the
motion would not prejudice the non-defaulting party; and (3) there was a good
reason for failing to respond to the complaint.
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Acknowledging that Safari’s “actions were confusing,” the district court
nevertheless found that they were not confusing enough to provide a good reason
for CollectA’s failure to respond. Under the plain language of Rule 12(a), Fed. R.
Civ. P., the court explained, CollectA was required to file a response within 21
days after being served with the summons and complaint, but it did not file
anything with the court until October 21, 2015, almost four months after it was
served. The court stated that there was no reason for CollectA to think a response
was not required because the complaint had not been dismissed and the case had
not been closed. The court concluded, “CollectA’s misunderstanding of what Rule
12 required, its attorney’s misunderstanding of the rules, and its complete failure to
file anything in this action until almost four months after being served do not
constitute a good reason for failing to respond.” Accordingly, the court denied
CollectA’s request for relief under Rule 60(b)(1) and, for largely the same reasons,
found that relief was not warranted under Rule 60(b)(6).
CollectA timely appealed that order, which was docketed in this Court as
No. 16-10919. The two appeals—Nos. 15-14799 & 16-10919—have now been
consolidated.
II. Standards of Review
We review for abuse of discretion a district court’s denial of a motion to set
aside a default judgment. Feltman v. Valdez (In re Worldwide Web Sys., Inc.), 328
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F.3d 1291, 1295 (11th Cir. 2003). Likewise, we review for abuse of discretion the
district court’s decision whether to hold a hearing on damages in cases of defaults.
Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir. 2015).
The abuse-of-discretion standard is deferential and affords a range of choice
to the district court. Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d
1330, 1337 (11th Cir. 2006). Nevertheless, an abuse of discretion occurs if the
court does not apply the proper legal standard, does not follow proper procedures
in making the determination, or relies on clearly erroneous factual findings. Id.
III. Discussion
A. Motion for Relief from the Final Default Judgment
District courts “may set aside a final default judgment under Rule 60(b).”
Fed. R. Civ. P. 55(c). The aim of Rule 60(b), Fed. R. Civ. P., is “to strike a
delicate balance between two countervailing impulses: the desire to preserve the
finality of judgments and the incessant command of the court’s conscience that
justice be done in light of all the facts.” Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 401 (5th Cir. Jan. 1981) (internal quotation marks omitted). 5
Thus, in some circumstances, the interests of finality must give way “to the
equities of the particular case in order that the judgment might reflect the true
5
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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merits of the cause.” Id. And because of our “strong policy of determining cases
on their merits,” “defaults are seen with disfavor.” Fla. Physician’s Ins. Co., Inc.
v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993). As a result, Rule 60(b), which
ordinarily “should be liberally construed in order to do substantial justice,” Seven
Elves, 635 F.2d at 401, “is applied most liberally to judgments in default,” id. at
403. See Solaroll Shade & Shutter Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d
1130, 1132 (11th Cir. 1986). Although our review is for an abuse of discretion,
“where denial of relief precludes examination of the full merits of the cause, even a
slight abuse may justify reversal.” Seven Elves, 635 F.2d at 402.
Rule 60(b) lists a number of grounds for relief from a final judgment,
including, as relevant here, “mistake, inadvertence, surprise, or excusable neglect,”
Fed. R. Civ. P. 60(b)(1), and “any other reason that justifies relief,” Fed. R. Civ. P.
60(b)(6). We address each ground separately.
1. Excusable Neglect under Rule 60(b)(1)
CollectA first argues that the district court should have set aside the final
default judgment on grounds of excusable neglect under Rule 60(b)(1). We have
stated that to establish grounds for relief under Rule 60(b)(1) “a defaulting party
must show that: (1) it had a meritorious defense that might have affected the
outcome; (2) granting the motion would not result in prejudice to the non-
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defaulting party; and (3) a good reason existed for failing to reply to the
complaint.” In re Worldwide Web Sys., Inc., 328 F.3d at 1295.
At bottom, though, the determination of what constitutes excusable neglect
is an equitable one, taking into account the totality of the circumstances
surrounding the party’s omission. Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934
(11th Cir. 2007); see In re Worldwide Web Sys., Inc., 328 F.3d at 1297 (stating that
“a determination of excusable neglect is an equitable one that necessarily involves
consideration of all three elements—a meritorious defense, prejudice, and a good
reason for not responding to the complaint”). In Pioneer Investment Services Co.
v. Brunswick Associates Ltd. Partnership, the Supreme Court identified four
factors pertinent to evaluating the totality of the circumstances: “the danger of
prejudice to the [opposing party], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.”
507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993). The Court held that excusable
neglect encompasses situations of negligence within the defaulting party’s control
and placed primary importance on the absence of prejudice and the interests of
efficient judicial administration. Id. at 388, 394, 397–99, 113 S. Ct. at 1495, 1497,
1499–500; see In re Worldwide Web Sys., Inc., 328 F.3d at 1297.
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Here, we conclude that the district court abused its discretion by failing to
consider all relevant factors and by failing to properly evaluate the factors that it
did consider. See Heffner, 443 F.3d at 1337. Under Pioneer, the determination of
excusable neglect is an equitable one that should take into account the totality of
the circumstances surrounding the party’s omission. In this case, however, the
court relied on CollectA’s reasons for the delay and the length of the delay to the
exclusion of all other factors. Specifically, the court concluded that CollectA’s
negligence was not excusable because it had failed to comply with Rule 12, Fed. R.
Civ. P., and had waited over four months after service to respond.
Finding no “good reason” to excuse the four-month delay, the district court
did not address other factors that both this Circuit and the Supreme Court have
found relevant to the analysis, including the prejudice to Safari, whether CollectA
acted in good faith, the effects on the interests of efficient judicial administration
apart from the length of the delay, whether CollectA had meritorious defenses to
the complaint, the amount of money involved, see Seven Elves, Inc., 635 F.2d at
403, and the possibility of inconsistent and unfair results in the event that IQON
prevails on the same claims against it in the separate litigation, cf. Gulf Coast Fans,
Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499, 1512 (11th Cir. 1984) (“[W]hen
defendants are similarly situated, but not jointly liable, judgment should not be
entered against a defaulting defendant if the other defendant prevails on the
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merits.”). Accordingly, the court’s order does not reflect consideration of the
totality of the circumstances in evaluating whether CollectA established excusable
neglect. See Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d
1337, 1356 (11th Cir. 2009) (holding that the district court “abused its discretion
because it did not even consider the Pioneer factors” when it simply “concluded
that Plaintiffs’ counsel’s error was not excusable because counsel failed to comply
with a series of orders”).
Although the lack of a good reason combined with the length of delay may
in some cases preclude relief under Rule 60(b)(1), the district court’s order does
not reflect a proper evaluation of these two factors in this case. For starters, we
believe that the court may have mistaken CollectA’s error as one of law rather than
of fact. This Circuit recognizes that an attorney’s failure to understand or review
clear law categorically cannot constitute excusable neglect. United States v.
Davenport, 668 F.3d 1316, 1324 (11th Cir. 2012). However, a materially different
situation is present when the mistake is one of fact. Id. Thus, “under some
circumstances the failure to meet a filing deadline because of an attorney’s mistake
of fact can constitute excusable neglect.” Id. The court characterized CollectA’s
error as a misunderstanding of what Rule 12 required, but CollectA’s grounds for
relief were not dependent on any particular rule of civil procedure.
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Instead, CollectA’s error was about whether the first case would go forward,
and thus whether a response was required, in light of Safari’s filing of a second,
duplicative lawsuit against both CollectA and IQON. Leung’s declaration explains
that CollectA was aware of the first lawsuit in February 2015 and was served with
the complaint on June 24, 2015. When service was effected, however, CollectaA
also knew that Safari had filed an identical complaint against CollectA earlier that
month, that Safari had indicated that the second case was “[r]einstated or
[r]eopened,” and that Judge Cooke in the second case had entered an order
expediting service. Thus, Safari’s actions created a confusing situation where
CollectA was named as a defendant in two identical cases, with the second case
being more comprehensive (in that it included IQON) than the first. Only after
Safari filed its motion for final default judgment in the first case did it notify Judge
Cooke that it longer intended to proceed against CollectA in the second case.
Of course, as the district court pointed out, the complaint in the first case had
not been dismissed and the case had not been closed, so CollectA’s failure to
timely respond to the first complaint plainly was negligent. Nevertheless, it was
not negligence based upon a misunderstanding of a procedural rule, and even
negligence within the party’s control may in some circumstances be excusable.
See Pioneer, 507 U.S. at 388, 394, 113 S. Ct. at 1495, 1497. Given that the district
court recognized that Safari’s actions were confusing—an assessment with which
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we certainly agree, we cannot say that CollectA is categorically barred from
establishing excusable neglect on these facts without an examination of the other
relevant factors.
As for the length of the delay, we have recognized that “[t]he longer a
defendant—even a foreign defendant—delays in responding to a complaint, the
more compelling the reason it must provide for its inaction when it seeks to set
aside a default judgment.” Sloss Indus. Corp., 488 F.3d at 935. Thus, the court
properly considered the length of delay in evaluating CollectA’s Rule 60(b)(1)
motion, and we have found delays of similar length to be inexcusable without a
good reason. See, e.g., id. (three-and-a-half-month delay after service of process
inexcusable where defaulting party failed to offer adequate reasons for delay).
However, the problem with the district court’s reliance on the length of
delay in this case is that court’s statement that CollectA did not file anything with
the court until October 21, 2015, is not correct. While it is true that October 21
was the date of the first counseled filing, CollectA first notified the court of its
confusion through Leung’s letter on September 9, one day after the clerk entered
default and more than one week before the court entered the default judgment. So,
in fact, CollectA’s first filing was about a month and a half earlier than the court
recognized.
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We understand that the district court struck Leung’s letter as an unauthorized
pro se filing on behalf of a corporation. But the court did so without notice to
CollectA and an opportunity to obtain counsel, which generally is required before a
court takes a dispositive action with respect to a corporate party, such as striking a
filing, dismissing a case, or, as here, entering default judgment. See Palazzo, 764
F.2d at 1386 (affirming dismissal of corporate claims brought by a pro se plaintiff
where the plaintiff was “fully advised of the need for proper representation of the
corporate claims”); K.M.A., Inc. v. Gen. Motors Acceptance Corp., 652 F.2d 398,
399 (5th Cir. July 1981) (granting a corporation additional time to obtain counsel
before dismissing an appeal completely); see also Memon v. Allied Domecq QSR,
385 F.3d 871, 873–74 (5th Cir. 2004) (“In virtually every case in which a district
court dismissed the claims (or struck the pleadings) of a corporation that appeared
without counsel, the court expressly warned the corporation that it must retain
counsel or formally ordered it to do so before dismissing the case.”). We also find
it significant that the court entered default judgment without first notifying
CollectA that its stated understanding of the duplicative cases was incorrect.
For the reasons stated, we conclude that the district court failed to consider
all factors relevant to the excusable neglect analysis and did not properly evaluate
the factors on which it explicitly relied. Because the determination of excusable
neglect under Rule 60(b) is an equitable one within the district court’s discretion,
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we vacate the denial of CollectA’s Rule 60(b) motion and remand to the district
court for further proceedings in light of this opinion. See Advanced Estimating
Sys. Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996) (remanding for the court to
decide the issue of excusable neglect under the correct standard).
2. Exceptional Circumstances under Rule 60(b)(6)
In the alternative, CollectA claims that relief should have been granted under
Rule 60(b)(6), but “[t]his Court consistently has held that 60(b)(1) and (b)(6) are
mutually exclusive. Therefore, a court cannot grant relief under (b)(6) for any
reason which the court could consider under (b)(1).” Solaroll Shade, 803 F.2d at
1133. Here, CollectA’s reasons for relief fall under Rule 60(b)(1), which its Rule
60(b) motion makes clear: “All roads in this case lead back to Safari’s filing of the
Second Case, which incited the confusion that resulted in CollectA’s mistake,
inadvertence and excusable neglect in failing to appear and defend against the
First Case.” Accordingly, relief is not available under Rule 60(b)(6). See id.
B. Damages and Injunctive Relief
Finally, CollectA argues that the district court abused its discretion when,
without holding a hearing or allowing CollectA the opportunity to defend itself, the
court determined damages and granted injunctive relief. We agree.
Damages in cases of default are governed by Rule 55. Rule 55(b)(1) permits
entry of judgment by the clerk without a hearing in cases where “the plaintiff’s
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claim is for a sum certain or a sum that can be made certain by computation.” Fed.
R. Civ. P. 55(b)(1). “Rule 55(b)(2), which covers ‘all other cases,’ requires the
district court to hold an evidentiary hearing ‘to determine the amount’ of losses
involved.” S.E.C. v. Smyth, 420 F.3d 1225, 1231–32 (11th Cir. 2005); see United
Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979) (“The case law is clear
that a judgment by default may not be entered without a hearing unless the amount
claimed is a liquidated sum or one capable of mathematical calculation.”).
Although an evidentiary hearing is not a “per se requirement,” given the
permissive language in Rule 55(b)(2) (“The court may conduct hearings . . . .”), we
have stated that evidentiary hearings “are required in all but limited
circumstances,” such as when hearing “any additional evidence would be truly
unnecessary to a fully informed determination of damages.” Smyth, 420 F.3d at
1232 n.13.
Here, an evidentiary hearing on damages was necessary. Damages for false
advertising under the Lanham Act are neither liquidated nor capable of objectively
ascertainable mathematical calculation. See 15 U.S.C. § 1117(a) (granting district
courts significant discretion to award damages for a violation of § 1125(a)).
Moreover, the evidence before the court—a single affidavit from Safari’s CEO
relying on a dubious extrapolation from limited sales data—was not sufficient to
make a “fully informed determination of damages.” See Smyth, 420 F.3d at 1232
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n.13. Because an evidentiary hearing was required, the district court abused its
discretion by entering the final default judgment before holding a hearing to
determine damages and injunctive relief. See id. at 1231–32 (“[I]f an evidentiary
hearing or other proceedings are necessary in order to determine what the
judgment should provide, such as the amount of damages that the defaulting
defendant must pay, those proceedings must be conducted before the judgment is
entered.”).
Accordingly, we vacate the district court’s entry of default judgment and we
remand for further proceedings.6
IV. Conclusion
For the reasons stated, we conclude that the district court abused its
discretion in analyzing the issue of excusable neglect under Rule 60(b)(1) and in
failing to hold an evidentiary hearing on damages and injunctive relief before
entering final default judgment. Accordingly, we vacate the final default judgment
and the denial of CollectA’s Rule 60(b)(1) motion, and we remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
6
Because we must vacate the default judgment since the damages could not have
properly been determined on this record without an evidentiary hearing, on remand, CollectA’s
Rule 60(b) motion must be evaluated on remand as a motion to set aside the default under Rule
55(c), Fed. R. Civ. P. Consequently, the “good cause” standard applies to the district court’s
consideration of CollectA’s motion on remand.
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