Port-Wide Container Co. v. Interstate Maintenance Corp., 19120-19122.
| Decision Date | 13 April 1971 |
| Docket Number | No. 19120-19122.,19120-19122. |
| Citation | 440 F.2d 1195 |
| Parties | PORT-WIDE CONTAINER COMPANY, Inc., Appellant in No. 19120, Mario Scaffidi and James (Vincent) Scaffidi, v. INTERSTATE MAINTENANCE CORPORATION and Santo Di Mare. Appeal of Mario SCAFFIDI, in No. 19121. Appeal of James (Vincent) SCAFFIDI, in No. 19122. |
| Court | U.S. Court of Appeals — Third Circuit |
John I. Magod, Mezey & Mezey, New Brunswick, N. J., for appellants.
James R. Zazzali, Zazzali & Zazzali, Newark, N. J., for appellee.
Before HASTIE, Chief Judge, and ADAMS and GIBBONS, Circuit Judges.
In this contractual action a default and a judgment by default were entered by the clerk of the district court under Rule 55(b) (1), Federal Rules of Civil Procedure. Subsequently, the defendant moved to vacate the default judgment. That motion was denied and this appeal followed.
It is argued that the entry of judgment by the clerk without notice, as provided in Rule 55(b) (1), rather than by the court after notice, as provided in Rule 55(b) (2), was improper. Subsection (b) (1) authorizes the procedure followed in this case only if the defendant "has been defaulted for failure to appear." We are urged to view this as a case in which the defendant had "appeared".
Normally, appearance in an action involves some presentation or submission to the court. Nothing of that kind was done here. Rather, over a period of many months after the filing of the complaint there were many oral and some written communications between counsel for the parties with a view to settlement. Although participation in such negotiation did not amount to an appearance in this action, such activity might have significance as implying that the plaintiff would not claim a default while negotations continued. However, in this case, after long continued futile efforts to achieve a settlement, plaintiff's attorney hand-delivered to a secretary in the office of defendant's attorney a letter, reading as follows:
Unfortunately, according...
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Yale v. National Indem. Co.
...a failure of notice under Rule 55(b)(2) renders a judgment irregular and voidable, but not void. See Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195 (3d Cir. 1971); Winfield Assoc., Inc. v. Stonecipher, 429 F.2d 1087 (10th Cir. 1970); Gomes v. Williams, 420 F.2d 1364 ......
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Ford Motor Co. v. Cross
...exchange of letters constituted an appearance for purposes of the rule on default judgments. In Port-Wide Container Company v. Interstate Maintenance Corporation, 440 F.2d 1195 (3rd Cir.1971), the court held that oral and written communications between counsel for the parties in an effort t......
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Cales v. Wills
...685, 690 (9th Cir.1988) (acknowledging that notice is not necessary under Rule 55(b)(1)); Port-Wide Container Co., Inc. v. Interstate Maint. Corp., 440 F.2d 1195, 1196 (3d Cir.1971) (per curiam) (recognizing, implicitly, that notice is not required by Rule 55(b)(1)); Menier v. United States......
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Cactus Pipe & Supply Co., Inc. v. M/V Montmartre
...Generally, an appearance in an action involves some presentation or submission to the court. Port-Wide Container Co. v. Interstate Maintenance Corp., 440 F.2d 1195, 1196 (3d Cir.1971) (no appearance found). An appearance may result from the filing of an answer without raising jurisdictional......