Legion Insurance Co vs. Mega Interests Inc, (5th Cir. 2003)
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* Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED October 23, 2003 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 03-20279 Summary Calendar LEGION INSURANCE COMPANY, Plaintiff-Appellee, versus MEGA INTERESTS INC., doing business as Jet Wrecker Service, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CV-3893 Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM: * Mega Interests Inc., doing business as Jet Wrecker S ervice, appeals from an order denying its motion to vacate a default judgment pur suant to F E D . R. C IV . P. 60(b). Mega Interests, Inc., argues that the district court lacked jurisdiction and that the district court abused its discretion when it denied the motion to vacate.
Diversi ty jurisdiction pursuant to 28 U.S.C. § 1332 was properly invoked since the parties were diverse and the complaint, fairly read, states a claim exceeding $75,000. S ee Louque v. Allstate Ins. Co. , 314 F.3d 776 (5th Cir. 2002); see also St. Paul Reinsurance Co., Ltd. v. Greenburg , 134 F.3d 1250, 1253 (5th Cir. 1998).
Additionally, the district court did not abuse its discretion when it denied the motion to vacate. To the extent that the motion raised grounds pursuant to F ED . R. C IV . P. 60(b)(4) and 60(b)(6), the motion was to be filed within a reasonable time of the entry of the default judgment. Mega Interests, Inc, has failed to argue and the record does not indicate that the motion was filed within a reasonabl e time. F E D . R. C IV . P. 60(b); See Travelers Ins. Co. v. Liljeberg Enterprises, Inc. , 38 F.3d 1404, 1410 (5th Cir. 1994) (what constitutes a “reasonable time” is fact sensitive and takes into account the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to other parties) . Furthermore, the arguments advanced pursuant to F ED . R. C IV . P. 60(b)(1) and (3) are without merit because Mega Interests, Inc. has not shown that its neglect was excusable nor has it shown that its default was due to the misconduct of Legion Insurance Company. S ee Rogers v. Hartford Life and Acc. Ins.
Co. , 167 F.3d 933, 939 (5th Cir. 1999).
AFFIRMED.
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Glynn W. Rogers, Plaintiff-Appellee-Cross-Appellant, v. Hartford Life and Accident Insurance Company; Entergy Corporation Companies Benefits Plus Long Term Disability Plan, Defendants-Appellants-Cross-Appellees., 167 F.3d 933 (5th Cir. 1999)
- U.S. Court of Appeals for the Fifth Circuit - St. Paul Reinsurance Company, Ltd., Plaintiff-Appellant, v. Larry Greenberg, Defendant-Appellee., 134 F.3d 1250 (5th Cir. 1998)
- U.S. Court of Appeals for the Fifth Circuit - Robin Passaro Louque, Individually and on Behalf of all Others Similarly Situated, Plaintiff-Appellant, v. Allstate Insurance Company, Defendant-Appellee., 314 F.3d 776 (5th Cir. 2003)
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1332 - Sec. 1332. Diversity of citizenship; amount in controversy; costs
- U.S. Court of Appeals for the Fifth Circuit - Travelers Insurance Company, Plaintiff-Appellee, v. Liljeberg Enterprises, Inc., Defendant-Appellant. Travelers Insurance Company, Plaintiff-Appellee, v. St. Jude Hospital of Kenner, Louisiana, Inc., Et Al., Defendants-Appellants. Travelers Insurance Company, Plaintiff-Appellee, v. St. Jude Hospital of Kenner, Louisiana, Inc., Defendant-Appellant.
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