Taylor v. Boston and Taunton Transp. Co., 83-1406

• Decision Date: 10 November 1983
• Docket Number: No. 83-1406,83-1406
• Parties: Henry C. TAYLOR, Plaintiff, Appellee, v. BOSTON AND TAUNTON TRANSPORTATION CO., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 731

720 F.2d 731

Henry C. TAYLOR, Plaintiff, Appellee, v. BOSTON AND TAUNTON TRANSPORTATION CO., Defendant, Appellant.

No. 83-1406.

United States Court of Appeals First Circuit.

Argued Oct. 3, 1983.

Decided Nov. 10, 1983.

Bernard P. Rome, Boston, Mass., with whom Thomas L. McLaughlin, and Wasserman, Salter & Rome, Boston, Mass., were on brief, for defendant, appellant.

James S. Robbins, Boston, Mass., with whom Horovitz, Gordon & Robbins, Boston, Mass., was on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, GIBSON ^* and TIMBERS ^**, Senior Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

This is an appeal from an order of the district court denying defendant Boston and Taunton Transportation Company's ("B & T") motion to vacate a default judgment under Fed.R.Civ.P. 60(b).

I. BACKGROUND

The relevant facts are not disputed. On August 7, 1979, Henry Taylor, the plaintiff-appellee, brought suit against B & T in federal district court for wrongful discharge from employment. Taylor served B & T's president, Albert Sagansky, on February 25, 1980. On May 28, 1980, Sagansky received a notice of default from the court for failure to plead or otherwise defend. Sagansky forwarded the notice of default to Robert Tully, the attorney that B & T had retained to represent it in this matter. Thereafter, B & T asked Tully, in a letter, for assurance that the default had been cured. In a later conversation, Tully assured Sagansky that an answer had been filed, and that he had moved to dismiss the complaint; in fact, no answer had been filed or motion made. On December 17, 1980, Tully advised Sagansky that a hearing scheduled for December 19 had been postponed and he opined that the case would be dismissed.

On October 26, 1981, B & T was served with a new summons and an amended complaint which brought Teamsters Local 25 into the action as a party defendant. Sagansky forwarded the summons and amended complaint to Tully and asked that he be informed when an answer had been filed. On December 1, 1981, Sagansky received a second notice of default, again for failure to plead or otherwise defend. He telephoned Tully and asked for an explanation. Tully expressed surprise at the notice of default and assured Sagansky that an answer had been filed, even though he had not actually filed one. Following the telephone conversation, Sagansky wrote Tully, requesting a copy of the answer. Tully failed to respond to Sagansky's letter; nevertheless, Sagansky took no further action and on March 26, 1983 he received a copy of the final judgment from Taylor's attorney.

II. APPELLANT'S ARGUMENTS

B & T advances three reasons why the district court should have granted its motion to vacate the default judgment. First, B & T argues that the facts show that the default judgment was entered solely because of its counsel's gross negligence. B & T urges that when entry of a default judgment is due to counsel misconduct and the client is without fault, then a court commits reversible error by failing to grant a motion to vacate the default judgment.

Second, B & T argues that it made an appearance in the action and thus should have been served a written notice of the application for judgment pursuant to Fed.R.Civ.P. 55(b)(2). It appears from the docket sheet that on December 17, 1980, Tully informed the court that B & T would file an answer and a motion to remove the default within two weeks. Though neither the motion nor the answer followed, B & T argues that Tully's act of informing the court of his intentions was sufficient to constitute an appearance for purposes of Rule 55.

Lastly, B & T argues that its motion should have been granted because it has substantial meritorious defenses that deserve to be heard.

We reject B & T's arguments and affirm the order of the district court.

It is well settled that motions to set aside default judgments are left to the sound discretion of the district court and that appellate courts will not reverse the district court's decision unless clearly wrong. American Metals Service Export Co. v. Ahrens Aircraft, Inc., 666 F.2d 718, 720 (1st Cir.1981); American & Foreign Insurance Association v. Commercial Insurance Co., 575 F.2d 980, 982 n. 3 (1st Cir.1978); Pagan v. American Airlines, Inc., 534 F.2d 990, 993 (1st Cir.1976).

Here there were substantial grounds for the court to reject B & T's characterization of itself as being without fault. As the court...