Dolphin Plumbing Co. of Florida, Inc. v. Financial Corp. of North America
| Decision Date | 27 February 1975 |
| Docket Number | No. 74-3502,74-3502 |
| Citation | 508 F.2d 1326 |
| Parties | DOLPHIN PLUMBING CO. OF FLORIDA, INC., Plaintiff-Appellee, v. The FINANCIAL CORPORATION OF NORTH AMERICA, a Missouri Corp., authorized to do business in Florida, Defendant-Appellant. Summary Calendar.* *Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Vincent E. Damian, Jr., Gary S. Brooks, Miami, Fla., for defendant-appellant.
Henry J. Whelchel, Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before WISDOM, BELL and CLARK, Circuit Judges.
The Financial Corporation of North America, FINCO, asks us to reverse the district court's denial of its motion to set aside a default and judgment of default entered in favor of Dolphin Plumbing Company of Florida. We affirm.
On April 4, 1974, Dolphin, a subcontractor, filed its complaint against FINCO, the developer, alleging breach of contract. On May 8, pursuant to a stipulation filed on behalf of both parties, Dolphin filed an amended complaint. The stipulation allowed FINCO an additional ten days, until May 18, to file responsive pleadings or motion. On May 24, FINCO's attorney moved to withdraw. He explained that his law firm had rendered service to FINCO for almost a year but had never received any payment on account. His affidavit recited that FINCO owed his firm $20,000 which it had 'failed to pay or indicated a willingness to pay.'
The court granted the motion to withdraw on June 7, 1974 and gave the defendant fourteen days to procure substitute counsel and to have him appear. Both the motion to withdraw and the order granting the motion were served on the defendant and on its general counsel. The defendant did not comply with the court's order, and on June 25, 1974, on plaintiff's motion, the court entered a default against FINCO, pursuant to Rule 55(b), Fed.R.Civ.P. Dolphin filed a motion for a default judgment, and served FINCO's president and general counsel with copies of the motion. The court set July 5 as the date for the final hearing. At the hearing, FINCO's former counsel was present but refused to make a formal appearance because he still had not been paid. The court proceeded with the hearing, examined witnesses, and, on July 10, in written findings of fact and conclusions of law, entered a default judgment against FINCO.
During the entire course of these proceedings, FINCO filed no motions or responsive pleadings. No representative of FINCO ever made an appearance, although both the corporation and its general counsel had been served with notice of all proceedings from the motion of withdrawal by its counsel through the entry of the final judgment. Only on July 18, thirteen days after the final hearing and eight days after the entry of the final judgment, did FINCO's former counsel reenter the case by filing a motion for leave to enter an appearance, a motion for a rehearing, and a motion to set aside the default and judgment of default. The court granted the motion for leave to enter an appearance and denied the others.
The decision whether to set aside a default judgment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Rule 60(b), Fed.R.Civ.P.; McGrady v. D'Andrea Electric, Inc., 5 Cir. 1970, 434 F.2d 1000. Although we are mindful of the strong policy in favor of trial on the merits, we are equally aware of the district court's duty to protect the integrity of the judicial process. This Court will do nothing to sanction abuse of that process, particularly the unexplained failure to obey an order of court.
The defendant FINCO did not, we conclude, make a sufficient showing of good reason for its default. It made no factual showing of mistake, inadvertence, surprise, or excusable...
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...to make an adequate showing of reasons in support of the claim of excusable neglect, Dolphin Plumbing Company of Florida, Inc. v. The Financial Corporation of North America, 508 F.2d 1326 (5th Cir.1975). The Fifth Circuit also has refused to accept other excuses such as "abandonment by coun......
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