after a as a default because the district court judge is the only person who can protect the defaulting parties due process rights what do the process right a clerk misplaced the notice but do you do agree that you weren't deprived of notice of anything where you record it is not the issue of notice it is the what we were deprived of the due process rights that we were deprived of its own rule fifty five is that is my question rule fifty five certainly give you some procedural rights is a violation of rule fifty five a violation of due process i believe it is to tell you tell me what case says that several of the cases that say that  several cases say one must follow rule fifty five and had you had you filed a notice of appeal this case would have been a very easy case my question is what kay says that the constitution due process is violated by not following rule fifty that a failure to follow rule fifty five violates the due process clause of the constantia of the proposition that because rule fifty five requires a hearing if you do not if the damages are not subject to mathematical calculation you're entitled to a hearing which means we would have gotten to know we have i absolutely agree you were entitled under rule fifty five to hearing and had you only filed a notice of appeal something you decided consciously not to do in this case we would have we reversed thing in five minutes my question is why why what case stands for the roof of the five is a procedural rule and that ruling titles are to hearing but tell me what you proposition that you're entitled to a hearing before damages are set under the constitution which is what due process describes because i guess is backs up to whether we got the notice what the notice we did not get was a notice of a hearing well you you didn't get time for appeal expire it was only after all that you filed your rule sixty with the motions so you know i don't think you've got any equity here to say we were mistreated the question is whether or not the district court deprived you of have obligations or your client the lawyers representing them have obligations it's not just the court crying your case when you get notice that the judge said you didn't have enough information you got a redo why did you then step in i mean i can't figure out why the lawyers in this case didn't do anything to protect their client  understand your concern over that i have expressed the same scratching of the head but it would be when they got the for the default in the first place i mean this whole thing started as a perfect anon party can make these sorts of motions or become involved in appeal only if they were participating in the activities below but  clients made your client made these decisions but they never did file and that's part of the excusable neglect problem here was that he filed a signed answer he didn't call it a proposed answer he filed and assigned nothing well you did nothing he according to his affidavit which requires that to be accepted by the court for sixty b one purposes he decided to shorten the does not affect damages at all so he believes under rule fifty five because of the claim the damage is being claimed he's going to get a hearing is going to get a notice of a hearing and then he gets notice twice the guy could notice once he misplaces but forget that for a second notice twice that the other side has moved for a default judgment and back and he your client does nothing he may have an excuse but just let's be clear he does nothing he did not respond to the first one he didn't get the second one he got the second one what he says is i put it in the wrong file i'm not sure that's excusable in the quack but put that aside then he gets notice that the judge is actually entered a default judgment correct and and does nothing except until we file the rule sixty b motion right as far as the affidavit is states that by the time he determined he discovered the entry of the default judgment he filed the motion motion correct so put all that together if we buy your argument here aren't we saying to people you don't ever have to appeal in these cases you can bypass the direct appeal process and just wait a while and file sixty  of the default judgment but it doesn't state specifically when he got it we know notice was given on the day it was entered i understand that so in the absence of them saying there's no excuse of i'm the galectin responding to the default judgment because you're not making a claim we didn't know about it but the default but but an appeal whether they waived an appeal or not doesn't address the six well it's just because our cases say that sixty b is not a substitute for direct appeal and that's why i think due process means in sixty be something like i couldn't possibly have appealed that judgment because i was denied any nobody ever told me about it i was denied due process well there's a difference between sixty before which is if the judgment is void is void right brief and then sixty one can't be addressed in an appeal so because the judge it hasn't been raised again so that you can only raise six to be one and if you have to appeal under excusable neglect you still focusing on the judgment let's focus for a second on your failure to appeal the judgment your client's failure to appeal the judgment is there any argument that that was excusable that he failed to appeal other than then he was not aware that no he was we talked about that he got notice of the judgment and he doesn't say in his affidavit i didn't so what's a got notice of the judge make it didn't register up ok here what's the excuse for not appealing i'm sorry what's the excuse for not filing a notice of appeal when he was he did was negligent in not discovering he had to appeal and i'd like to reserve for default judgment hearing here no i don't what you asked for one well we filed we didn't ask for one all we defiles is your father request for here we filed a form of order setting the hearing so but these are not damages for us some certain are they i mean you're seeking pain and suffering correct that so this is the classic case where a judge in a default judgment circumstance should hold a hearing well under some circumstances the court has discretion under the on the merits of the of the underlying issue not the where you think that it be you think a judge has discretion when you say i've got my i'll make up the number five hundred thousand dollars and pain and suffering to say under r default judgment for that without a hearing provided and this is where the discretion comes in provided that the plaintiff in his moving papers submit evidence to support the damages and the requests it is moving papers i've suffered a lot you know there's all the things that have happened to me and i estimate the damages that are relevant to that amount as five hundred thousand will have their support judge and a judge can grant a default judgment hearing greg before judgment say my inclination would be to say go back judge and hold a default judgment here i was i because you sought intangible damages in addition to property damage and other stuff which can be specified as can i ask a question  so you first request the damages in the amount of thirty five thousand five hundred sixty one dollars and twenty six cents when you got the first default and then your demand to the carrier was fifty eight thousand six hundred ninety four dollars and thirteen cents and then the judge said you haven't even alleged the jurisdictional mount so i'm not going to enter default for those and then you come back and you get a judgment for a million five hundred ninety two thousand three hundred forty three dollars and twenty six cents don't you think if there had been a hearing there might have been some kind of question as to how do you get from thirty five thousand to a this in the earlier question the fact that judge mcnamee may have been wrong and i don't think he was in proceeding as he did based upon those events that was similar to but if he was wrong in that and if  that was an abuse of discretion not to hold a hearing that does not a due process violation make it simply an error and the reason that they're claiming due process violation and i agree with the judge as we the decision and to send it back to the district court to to do but over i think the case law says that you don't have to itemize the factors under pioneer as long as the the record in the ruling indicates that those of all of the reasons that this was not excused from the collective and i think i heard mr massaro acknowledge to the court's questions that there really is no excuse he just made a mental mistake  negligence i think he said not appealing and i agree that if this were an appeal from the from the default judgment that they did get notice of the issues would be different and the standard of review probably would be different holding a hearing and it's abuse of discretion at both levels no i don't think the court even has to reach that for the reasons that i talked about in my brief that the underlying judgment itself does not come up on appeal from the denial of a rule sixty motion it's not a substitute for appeal as a judge back to hit this really hard the reason for that is twofold really the policy is one the recognition of finality but more importantly i think is that it prevents the defendant from lying in the weeds you know taking your chances seen what happens and  not following any rules in this case not following a specific order from judge mcnamee to follow your answer and then if it doesn't turn out the way you want you don't appeal have been received notice of that whole judgment and then wanting a do over by getting essentially review the default judgment on appeal from the rule sixty motion few would be encouraging that kind of behavior which is just contrary to the purpose of  law well i'm interested in the affidavit in this case so my right in thinking that the only real excuse given was that the second application for d for judgment here it was misplaced they got right there's no other words there's no other excuse given other than that it's a correct and there's no excuse at all and i think this is and i don't i don't really mean forget what happened before but i think the real big elephant in the room is they didn't appeal and there's intervene maybe defense counsel would have violated arizona ethical rules but we would have would have a party in front of us so it's i totally agree with you and that's essentially what happened again on appeal because they're appealing contrary and because the insurance company gets notice right away and they file a motion to intervene which kind of what happened here the only real problem with mr fitch did here was his initial notice of appearance on behalf of sun what he should and away we go they did not do that they didn't they never did of intervene and then at that point nothing happened for nine months after repeatedly getting notice of everything  i've covered everything i wanted to cover here also i think you have discretion to do that if and the point that i made is someone has never showed up so and they didn't participate they didn't file the motion so they shouldn't be here at all and to whatever extent they are allowed as the nominal defendant they have waived all their arguments here because they didn't make them alone and they had the same lawyers and fitch even filed that original notice on behalf of the son before he essentially disappeared but i think in my position as far as zurich's arguments to this court are that they squandered their opportunity and we gave them and it's not fair to the plaintiff and certainly not fair to generally to have them essentially waste their chance and then come in on appeal and start second guessing everything that they could've raised legitimately by filing a notice of appeal from the default judgment and i think ultimately that's where where they're wrong their appeal in this case falls down because everything that they could see is that everything that they did raise here all of these issues the due process issue the excuse women collect issue the please reconsider i tell issues all three of those issues could have been raised and should have been raised i don't think they had any merit there as you and i maybe disagree on that but they should have been raised on a i only have a few seconds again and the ninth circuit has recognized a strong public policy to have decisions on the merits and all we're asking is as a hearing on the damages with admissible evidence which should have been done by the district court in this case and it was the opportunity for a hearing not the notice that's a critical issue here he should have had a hearing which would have sent out a separate notice hopefully they would have wreckage saw that and it participated which is exactly what they intended to do they tried to shorten the process not gain any tactical advantage here by not appealing or  contesting the liability portion of it and just contesting damages the the due process that was violated here was the court was required to have a hearing he didn't do it secondly he was required to rely on admissible evidence not an affidavit from counsel that clearly had no personal knowledge and a bunch of hearsay documents if you had done any either one of those we probably wouldn't be here today