U.S. v. One 1978 Piper Navajo PA-31 Aircraft

• Decision Date: 13 December 1984
• Docket Number: PA-31,No. 84-3181,AIRCRAFT,84-3181
• Citation: 748 F.2d 316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1978 PIPER NAVAJO, etc., Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 316

748 F.2d 316

40 Fed.R.Serv.2d 1084

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1978 PIPER NAVAJO PA-31, AIRCRAFT, etc., Defendant-Appellant.

No. 84-3181

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 13, 1984.

Lewis O. Unglesby, Baton Rouge, La., for defendant-appellant.

Stanford O. Bardwell, Jr., U.S. Atty., Shelly Zwick, Merrick J. Norman, Jr., Asst. U.S. Attys., Baton Rouge, La., Hattie M. Broussard, U.S. Customs, Asst. Reg. Counsel, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court For the Middle District of Louisiana.

Before GEE, JOHNSON and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

This is an appeal from the denial of a Fed.R.Civ.P. 60(b) motion to set aside a default judgment in an action for forfeiture in rem. Finding no abuse of the district court's discretion in denying the motion, we affirm.

On March 7, 1983, defendant One 1978 Piper Navajo PA-31 Aircraft was seized by officers of the United States Customs Service. In its complaint for forfeiture, the Government alleged that the aircraft was used in connection with the transportation, importation, sale, possession, and concealment of contraband ¹ and was therefore subject to forfeiture to the United States under 21 U.S.C. Sec. 881(a)(4), 19 U.S.C. Sec. 1595a(a), and 49 U.S.C. Sec. 782. Further, because the aircraft departed the United States, reentered, and landed at Ryan Field Airport, Baton Rouge, Louisiana, without requesting permission to land or giving advance notice of its entry, in violation of federal aviation regulations, ² the aircraft was subject to forfeiture under 49 U.S.C. Secs. 1474, 1509 and 19 C.F.R. Sec. 6.11.

Pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims, ³ the clerk of the district court issued a warrant of arrest for service on the defendant aircraft ordering the United States marshal to direct the defendant to appear, in accordance with Rule C(6), within ten days of service of the notice to interpose a claim. The defendant was also directed to file a responsive pleading either within twenty days of filing the claim or within thirty days of service, whichever was less. See Supplemental Rules for Certain Admiralty and Maritime Claims, Rule B(3).

The warrant and complaint were served on the property. The Government attempted to serve personally C.M. Medina, the last registered owner of the aircraft, and Robert L. Watkins, the pilot of the aircraft on March 7, 1983, but was unsuccessful. Notification of the arrest was published pursuant to Rule C(4) on December 16, 1983, with a return date for filing verified claims and answers of January 16, 1983. (The notice should have read that the return date was in 1984; however, claimant has not asserted that this error constituted a defect in the service.) Two other parties, John Comish and H. Lee Bauman, attorney for I.C.E., Inc., were served by mail on December 13 and 14, 1983. No responsive pleadings being filed, on January 18, 1984, default was entered against the aircraft, and on motion of the Government, default judgment was ordered. See Fed.R.Civ.P. 55(a) and (b).

On January 18, 1984, I.C.E., "a Florida corporation to be formed," attempted to file an answer and unverified notice of claim. The answer and notice of claim were stamped as received on that date, but were refused by the clerk of the district court because the original counsel, H. Lee Bauman, was not admitted to practice before the Middle District of Louisiana. Attorney Lewis O. Unglesby, local counsel, filed an answer and notice of claim on January 30, 1984, as well as a motion to reconsider the default judgment. Finding no excusable neglect for the delay in filing responsive pleadings, the district court denied the motion.

Standard of Review

Fed.R.Civ.P. 60(b) permits relief for, among other reasons, mistake, inadvertence, surprise, or excusable neglect. The district court may in the exercise of a sound discretion, ... refuse to grant relief from the default judgment where no meritorious defense is shown; where the defendant wilfully or carelessly disregards the court's process ...; where neglect of counsel ... is not excusable; and where good faith is lacking or in some other respect justice would not be furthered.

6 J. Moore, W. Taggart, J. Wicker, Moore's Federal Practice p 55.10 at 55-244 (1983).

To merit relief in the instant case, those claiming ownership in the aircraft needed to prove both that their failure to timely answer or otherwise defend was due to justifiable neglect and that they had a defense to the forfeiture which would probably have been successful. United States v. $22,640.00 in United States Currency, 615 F.2d 356, 360 (5th Cir.1980). "It is not enough that the granting of relief might have been permissible, or even warranted--denial must have been so unwarranted, as to constitute an abuse of discretion." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981) (emphasis in original). While Rule 60 is to be liberally construed in the context of a judgment of default in view of the absence of a trial on the merits, id. at 403, our inquiry is limited to whether the district court abused its discretion in denying the motion. Verret v. Elliot Equipment Corp., 734 F.2d 235, 237 (5th Cir.1984).

Excusable Neglect

In its motion to set aside the default judgment, claimant I.C.E. asserted that the delay in filing responsive pleadings was justifiable because: it acted quickly to correct its error by filing its pleadings once it retained local counsel; it was occupied with advancing its claim administratively with the United States Customs Service from May 1983, and had no notice that the matter had been referred to the United States Attorney; the United States did not serve the complaint on I.C.E.'s counsel until December 1983; counsel's "pressing business considerations and his secretary's absence for maternity leave;" and reliance upon a telephone communication with the United States Attorneys' Office in which counsel was allegedly told that a default judgment would not be sought and that counsel should file his papers immediately.

On appeal, I.C.E. contends that the district court should not have granted the Government's motion for default judgment on January 18, because on that day I.C.E. attempted to file pleadings but was turned away for failure to comply with a local court rule. ⁴ This argument is without merit. The order directing notice by publication and the publication notice specifically required all interested persons to file verified claims and answers within thirty days of the date of publication, i.e., by January 16, 1984. Hence, even if the January 18 submission of the unverified claim and answer had been accepted and filed by the district court's clerk, it still would not have been filed within the time allotted by the court. ⁵

I.C.E. further contends that the Government misled its attorney into believing that a default judgment would not be pursued and that counsel had time to file its pleadings. We do not view this as a justifiable reason for the delay. Apparently, I.C.E. did not request an extension of time from the court. Further, the Government's attorneys have attested that no one in the United States Attorneys' Office advised I.C.E.'s attorney anything to this effect.

In sum, I.C.E. has failed to advance a justifiable reason for its failure to timely interpose a claim. Counsel's assertions of office workload and of concentration on the administrative proceedings to the detriment of filing an answer and claim are insufficient to set aside the default judgment. While neglect of counsel should not necessarily cause a party to lose valuable property without a hearing, see Blois v. Friday, 612 F.2d 938, 940 (5th Cir.1980), I.C.E. had proper notice of the forfeiture proceedings, failed to appear to defend, did not request an extension of time from the court, and has not shown sufficiently why it did not comply with the notice. Thus, the district court did not abuse its discretion in finding no excusable neglect.

Meritorious Defense

The Government asserts that even assuming I.C.E. had a justifiable reason for its failure to file a timely claim, the claimant could not succeed on the...