U.S. v. Atkinson

• Decision Date: 16 November 1984
• Docket Number: 84-852,Nos. 84-808,s. 84-808
• Citation: 748 F.2d 659
• Parties: , 3 Fed. Cir. (T) 15 UNITED STATES of America, Appellee, v. Keith W. ATKINSON, an individual, and St. Paul Fire and Marine Ins. Co., Appellants.
• Court: U.S. Court of Appeals — Federal Circuit

Page 659

748 F.2d 659

6 ITRD 1535, 3 Fed. Cir. (T) 15

UNITED STATES of America, Appellee, v. Keith W. ATKINSON, an individual, and St. Paul Fire and Marine Ins. Co., Appellants.

Nos. 84-808, 84-852.

United States Court of Appeals Federal Circuit.

Nov. 16, 1984.

Robert Glenn White, Glad, White & Ferguson, Los Angeles, Cal., submitted for appellant.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., Joseph I. Liebman, Atty. in Charge International Trade Field, New York City, and Michael P. Maxwell, New York City, submitted for appellee.

Before MARKEY, Chief Judge, and BENNETT and MILLER, Circuit Judges.

MARKEY, Chief Judge.

Appeal from decisions of the United States Court of International Trade (CIT) denying St. Paul Fire and Marine Insurance Company's (St. Paul's) motions for relief from judgment and to amend answer (App. No. 84-808), and for extension of time in which to file an appeal (App. No. 84-852). We affirm.

Background

St. Paul was the surety on an Immediate Delivery and Consumption Entry Bond executed in 1975 by Keith W. Atkinson. When Atkinson failed to comply with an order for redelivery, the government made various unsuccessful efforts to collect $13,700 in liquidated damages from Atkinson, the last on November 24, 1978. The government then demanded payment on the bond from St. Paul in July, 1979 and again in December, 1981. St. Paul did not honor the bond.

The government sued St. Paul, which filed an answer admitting the operative facts and raising only two defenses: (1) statute of limitations; and (2) failure to state a claim.

In August, 1983, the government moved for summary judgment. St. Paul responded with a cross-motion for judgment on the pleadings, asserting that the government's claim was time barred and that its pleadings were deficient for failure to plead governmental compliance with certain specified Customs Regulations. The government responded with an affidavit establishing its compliance with each of those Regulations.

In November, 1983, the CIT granted the government's motion for summary judgment. St. Paul has never appealed from that judgment. The CIT also denied St. Paul's cross-motion for judgment on the pleadings.

There ensued a procedural paper chase, beginning with St. Paul's motion for relief of judgment under CIT Rule 60(b) in December, 1983. ¹ With that motion St. Paul tendered an amended answer.

On January 3, 1984, the government responded to the 60(b) motion. That motion and leave to amend answer were denied by the CIT the next day.

On January 26, 1984, St. Paul filed an appeal from the denial of its 60(b) motion and leave to amend answer.

On the next day, St. Paul moved for extension of time to appeal from the grant of summary judgment. On February 9, 1984, the government opposed the extension and on February 13, the CIT denied the motion.

St. Paul's appeals from the denials of its motions were consolidated by this court on March 8, 1984.

OPINION

St. Paul says both appeals involve the denial of its CIT Rule 60(b) motion for relief of judgment and its request to amend its answer, apparently on the notion that its 60(b) motion tolled the time for appeal of the summary judgment. Only if that is not so, says St. Paul, must its motion for extension under Rule 4(a)(5), FRAP, be considered. St. Paul asserts that its filing of appeal from the denial of the Rule 4(a)(5) motion within 60 days of the denial of its 60(b) motion is "timely as to" the CIT grant of summary judgment.

This is not an extraordinary case sufficient to justify a vacating of the decisions denying St. Paul's motions. St. Paul never advanced a meritorious defense in any of the proceedings before the CIT, nor did it support its purported defenses by affidavit or other documentary evidence.

The grant or denial of a motion for relief from judgment is discretionary, CTS Corp. v. Piher Int'l Corp., 727 F.2d 1550, 221 USPQ 11 (Fed.Cir.1984), and the standard of review is therefore whether the trial court abused its discretion.

No abuse of discretion occurred here. St. Paul's defense of non-compliance with regulations was not raised in its answer, but only in arguments submitted in opposition to the government's motion for summary judgment. The government submitted an affidavit showing compliance, briefed the matter in its reply to St. Paul's opposition arguments, established compliance with all regulations by the Customs Service, and pointed out that the specified regulations were not drawn to benefit sureties.

Because St. Paul's notion that the government was required to plead compliance with regulations was spurious, the government need not have established that compliance. Though given ample opportunity, St. Paul chose to rely solely on counsel's arguments and to put no facts on the record which could establish its purported defense. Because it submitted no affidavits or in any other manner established a material fact issue, St. Paul ran the risk of not responding to the government's motion for summary judgment and that motion was therefore properly granted.

Though it speaks to us of justice, nothing in its briefs or in the record indicates that St. Paul suffered any injustice whatever as a result of the CIT's denial of the 60(b) motion and leave to amend. Its allegations of the government's failure to plead compliance with regulations and failure of the government to act promptly are the sole basis for its claim to relief from judgment and for leave to amend by adding those allegations to its answer. But those were spurious defenses, the insertion of which would have been meaningless. They were not conditions precedent to be pled by the government and their assertion in motion papers could not create a material fact issue precluding summary judgment.

Having had adequate opportunity to properly amend its answer or offer proof before filing its reply to the government's response to its motion for judgment on the pleadings, and having chosen not to do so, St. Paul has no basis for alleging that it was "surprised" by any decision of the CIT or that it suffered any form of manifest injustice.

The authorities on which St. Paul relies, Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), and Howey v. United States, 481 F.2d 1187 (9th Cir.1973), are inapt. In Foman, plaintiff was denied all opportunity to pursue one of her claims. In Howey, plaintiff did not, as defendant St. Paul did here, unduly delay in moving to amend, or refuse to offer proof on a defense until after judgment had been entered. Similarly, St. Paul's citation of "seizure" cases, which this case is not, in support of its "government must be prompt" argument is totally inapt, as is its citation of United States v. Eight Thousand Eight Hundred Fifty Dollars, 645 F.2d 836 (9th Cir.1981), which the Supreme Court reversed, United States v. Eight Thousand Eight Hundred Fifty Dollars, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983).

The CIT did not abuse its discretion in denying the Rule 4(a)(5) motion for an extension of time to appeal. The rule requires a showing of excusable neglect or good cause, and where, as here, the motion is filed after the time for filing a notice of appeal has expired, that showing must be clear. There is none here. There...