honors if it please the court this appeal involves a somewhat arcane but and not often used procedural mechanism default judgments the district court's decision below should be reversed on four distinct legal bas any one of which is fatal to the full judgement two of which render the default judgment excuse me three which render the default judgment void have an issue i'd like to st begin your honors with an issue that is to may jumps out out to me the four bases that i think require reversal st the rule forty one a one dismissal that happens before the cross claim is filed nd the lack of a hearing under rule fifty five dollars day three the lack of notice of that hearing under rule fifty five dollars b after an appearance and for the analysis of the rule fifty five c motion good cause to set aside the default judgment on a return of the st point which was the notice of dismissal which was filed on january th two thousand and sixteen record document forty eight it does not exist in the record because it was subsequently struck a notice of intent to dismiss against my client that is important for honors because once that notice of dismissal is thought hope i believe the district court lacked any jurisdiction over the safe water entities  or a motion for summary judgment is self effectuating now there is an issue as to what happens in there when there are multiple parties is it still self effectuated this court along with the majority of other circuit courts in the united states has held that a plaintiff has absolute right to dismiss any of the defendants to the suit so long as the conditions not having followed an answer are not having followed the motion for summary judgment applied to not defend it there are two decisions by this i thought i thought and your client was certainly duly served in the original case and b i thought there was really no disagreement that your client was well aware of the pendency of the counter claim for this entire period your honor i've got i don't know if the record reflects when the notice of the counterclaim was actually perfected there was an improper service attempt at one point on which the court the district court subsequently recognised after the entry of the default judgment that we're here or which i think is a sort of procedural mouse and more importantly though my into the tanks and subsequently leapt and so the idea that your client was going to be totally off the hook was naive i would say under the circumstances they were not  dismissal the district court later found in a summary judgment that samara was also the ship that is sam writes independent liability under law when the content in it that they found him to be the constantly under the bill of lading creating decision the wind when record document forty eight is filed into the record it is self effectuating the district court has no more jurors diction everything that happens after that with respect to the party that is  after the rule forty one and one notice which is self effectuating a right of the plaintiffs to unconditional dismissal with notice the district court had no authority to strike that from the record it had no authority to require a motion which is a fundamental right it is purely legal there are no facts that the district court needs to develop to address that issue judge it is purely on the record this is a rather complicated record and convoluted record of believe there was an eighty six dollars page opinion dish report record and trial counsel was focused on the good cause which i think also exists and provides an alternative basis and i think judge another important point the district court was never going to remed defect the district court struck that document for the record so there was no ability of my client at the district court level to have that remedy and argue that point  yes judge no in the district court one motion of the defendant filed after the rule forty one dollars a one notice struck the document retroactive so it is in the record it is in the docket record but is not in the  even under rule forty one whether there had to be a court order whether yes your honor but rule forty one a one day and where you know without it without a court order judge i take i believe that was the basis of the district court came back and didn't realize the cross claim happens after that selfishly in order to judge i think on those four bases i do think this court has discretion another point is i think the strength of the next two arguments will show that the judgment the default judgment is  that this court doesn't have to hear this case again because if it did if it does go back somehow they can out rd party complying they could have bought a rd party candidate start any they could they could have done that they did not do that juggling but they couldn't and that's what would have been required under the rules at that time and the federal rules are so perceived now judge judges that the nd issue is the district court failed to hold a hearing on the motion for a default judgment as this court has held in i believe the new york life insurance versus there's a two step process to default judgments there's an injury of the fault which is a perfunctory mechanism the clerk performs but following that the party most mood for entry of default judgment rule fifty five is very particular in details as to how that happens if you have a sum certain or a certain sum that can be made certain by computation you submit an affidavit to the clerk and the clerk issues of the fault judge rule fifty five very clearly stated in all other cases the party must apply to the court for a default judgment your honour's that process can only happen after a hearing which was not conducted in this case such a hearing would include among other things having the having the party seeking the default judgment at least establish a prime aphasia case friends in shojo and i could sue you for an auto accident that you were not involved in yet i mean i think it i think it is if you have to have a hearing and at that hearing samara would have been just required to assess the legal basis of its claim which it cannot do because there is no legal basis for its claim and the district court frankly it is found that later in its ruling on on these motions the district court concluded that samrat does not have a tort contribution or tort indemnity right the failure to hold the hearing renders a default judgment void and under those circumstances the district court has no discretion as to the rule fifty five dollars c or rule sixty b motion i post it makes much of this there is no discretion granted to the district court so on that basis your honor i believe this court should enter an order void in the default judgment you didn't you didn't argue the seven day notice in the trial court until the motion to reconsider which the court was not obliged to take and your honor i was not a trial counsel and i will admit that this is a tortured record there were a lot of there were a lot of moving parts to this no there were a lot absolutely entitles him and safe water to due process at that point this court has recognized that that's a relatively low threshold in the new york life insurance versus brown case i believe that even found that speaking with opposing counsel was an appearance i think that if he thought of the two is very clear that both there has to be a hearing and if the court is aware of a party making an appearance that that hearing can only happen seven days after the notice of appearance and i think that's clear from the text of the statute your honor and i don't want to belabor that point joe johns already talked about the lack of legal what i'm sort of judge it in written record document eighty six i may get to that or a way three hundred and eighty nine is when the district court did ultimately grant the dismissal of maersk claims against my client even though it should have been done before at that point for good cause exist here the willful intent needs to be understood in the context of the whole case my client thought that they were dismissed there is a meritorious defense and there is no prejudice the only prejudice to samara is that they would actually have to prove  may please the court my name is shown o'neill and i represent the apple e and cross claimant below samrat container lines and before the court are two issues the answer to both questions before the court or properly deny the appellant's motion for reconsideration i would address a point raised by judge jones at the outset just a minute ago regarding samaranch cross claim that was brought up whether there was anything that involves same rights cost claim for kid at their once yes your honor samrat was pleading that ok there's nothing in the record on that basis because we never got to that point the judge found the district court found that two separate district court judges in this case both using their discretion found that the fault judgment should be upheld admittedly the case does have something of a long and varied and winding procedural history some of the important parts that go to the what i believe is a waived argument regarding the rule forty one a one dismissal is that samrat or excuse me mayors the original plaintiffs and the carrier in this case appear ever in response to that the plaintiff then amended their complaint a couple of times after that namely to add another say four and to after that was done then there were a rule sixteen conference and initial conference was arranged plaintiff sought additional time to be able to conduct discovery because the parties had not been involved as a result of that in the joint discovery case management plan and the  say that a cross claim was not brought because after the nd amended complaint was filed by maersk immediately ordered a summons and began hague's service on the safe order entities at that time samara could have perhaps brought across claim but samrat would also have to go through paid service against the same entity the plaintiff was already attempting to bring that entity into the case the plaintiff in samrat had both expressed a desire to bring safe water into the case and so  samrat was essentially waiting until safe order made an appearance in response to the plans complaint and then it could bring its cross clean immediately against the council serving on the council who appeared and would save proceedings it would save judicial resources it would see going through hague service in any the district court entered a new scheduling order with trial in february two hundred and seventeen at record to fifty five that same day the court granted the planet's request for the nd amended complaint in the plaint after this service of safe water they would appear to contest the plainest point once they appeared samrat would file its cross going but sam safe water and the plaintiff colluded to prevent samrat from being able to do that and prevent safe water from appearing in fact maersk counsel the plaintiffs counsel filed the notice that was stricken from the record by the district judge after that point say for never appear the plaintiff mayors did all the fighting for over two years on safe waters behalf fighting samrat continuously trying to keep safe water out of the  losses how could they do that they were they were they contested every single action by safe water before the district judge they were the only party before the court and they were opposing and filing oppositions to everything that sam a was filing trying to pursue the cross claiming and say for well how can they do that they were a part of the proceeding in a plot or did everything i mean your client did everything to to pursue the cross claim and us mail in march and i should say admittedly in probably the court found that those efforts were improper to qualify as hate service as a result of that even though that had already been filed and sam n december a certificate of service supporting hague's service that's in the record at page nine hundred and twenty three dollars the important part of that is it shows that hague service was effected on four months later there was a four month period after samrat served safe water in india waiting for them to answer and they did not appear ultimately because the scheduling was getting close samrat filed a motion for entry of default that motion was filed on december th for a request for a default there was an order essentially granting the entry of default  default it was not issued by the clerk it was issued by judge harman herself the district judge two days later on december th samrat filed its motion for default judgment three days later on monday december th was when safe waters new jersey counsel filed his motion to appear pro hockey change at that time samrat had already filed its motion for a default judgment there was no obligation on samrat to serve any pleadings on safe waters counsel at that time who had not even from the southern district saying here is sam rats chorus please mr wants you new jersey's council for safe water was aware of samaranch cross claim as of the for short lease after the filing in february of and sixteen his client was aware in march by fax email fed ex and international mail of a cross claim and then they were serbia hake service an one of the points raised by my friend is that under fifty five b to default judgment by the court is that there has to be a here rule fifty five  have conditional if the party against whom to default judgment is sought has appeared personally or by a representative of that party words representative must be served with written notice of the application or make referrals preserving in federal statutory right to a jury trial when to enter or effects to a judgment it needs to a conduct an accounting be determined in the amount of damages see it was found liable to maersk at a later date and any damages at the time of the filing of the default there were no damages mare's could just file that summary judgment so there was no requirement safe samaranch position for there to be any here in fact there are in the case turner southie of error i believe that cas its motion for summary judgment against samrat judge again in awarded a final judgment for over one hundred and thirty three thousand dollars against samrat only as the only party left in awarded approximately fifty thousand dollars in attorney's fees there is currently after which the plaintiff filed a motion for entry of judge and the district court issued an order granting a motion for de paul judgment limited to the issue of why ability on july st and then scheduled  was no need for a hear many assets in the us that i am not aware of your honor you're pursuing a two hundred and fifty thousand dollars judgment against another foreign entity that's registered to do business here there is ancillary litigation going on in the southern district of new york related to this matter the judge owen mentioned earlier the possibility of bringing a rd party complaint that samak could have done that there was a separate action brought maersk in the southern district of texas that case was transferred to the southern district of new york it involves some of the same claims that are in this lawsuit that were severed out of that in the new in the southern district of new york there is currently a collection action excuse not a collection action litigation between safe water and samrat in the southern district of new york with respect to other contra bills of lading and contracts and exposure may not this protect not this particular case no ma'am no care about that  i did want to point out that  the main issue here from samrat perspective is the four months and to and in this court's ability not to disturb the great discretion given to the trial judge both pro judges here is that there was four in trying not to join this litigation as judge jones pointed out safe water was served back in two thousand and fourteen with this lawsuit and has been aware of this lawsuit and has never appeared even after the grant of default judgment as happened in a number of cases that are before this court and as g c farmland stewart was on the panel four parties have filed untimely answers so that the district court is aware at a minimum of what they would be arguing as meritorious defenses that did not happen in this case at no time has safe  filed an untimely answer in the district court to say here are my meritorious defenses judge please consider these with respect to my fifty five a motion or my sixty before or sixty six was it was designated as the constantly on the bill of late that's how i would answer your question what does that mean that means that mayors and the ship are safe water on issuance of the bill of lading in india  designated samaranch as the consummate yeah but i mean so there that we're going to send somebody else right there they needed to send the original bill of lading to the constant need to samara i do not know when the record is not clear whether sam or it ever received those original bills of lading there is an argument that was raised by samaranch other council that there was no authority for this particular non hazardous cargo shipment that salmon being named as con but i do not know that there's any record evidence all and that was in the answer as a general denial ok this is a mess but i'm just saying it's a practical matter normally the constant is a person who takes delivery normally your honor you're correct and in this case in fact that is the basis for which the district judge found samrat liable to mayors on contract not on torts so there's no arguing and clyde here toward contribution because the district judge in granting summary judgment found that it was a result of the bill of lading contract samrat being constantly in the definition of merchant on the reverse terms i see that my time is just not up if there are no further questions thank you argue that that is not your honor with all due respect i do not believe so because as the moving part samrat bears the burden to establish its legal right to that remedy to the satisfaction of the death of the district court that is why  fifty five be exists and we would not be here today if the district court had required samrat to explain the legal basis i mean the problem that you have that i believe i believe judge that we did because it intertwines with the meritorious defense argument the lack of the lack of a legal basis for the rule fifty five dollars b hearing that development body of law and default judgments there's just not a lot of publications on it there's not a wide body but i think if you look at the text of fifty thought big reason you're right because most of these never see the light of day judge b if you read the text of fifty five days if the court knows that a party appears and has to give notice before hearing that absolutely presumes that hearing is required because otherwise in fact she felt she would i've i've actually had one i did take  another important point the right that sam brett seeks to impose isn't income it right it doesn't exist it never existed at the time the default judgment was entered it can only claim that was the only basis for the cross claim that was the only basis presented in the application in that ruling judge jones the court also granted a probe tonto reduction appeared that entitles him to notice judge stewart you asked that question subsequent proceedings your subsequent pursuit notice going all the way back to the peers not entitled to notice going all the way back and he does at that point have a due diligence requirement to look at the pacer record but he is also entitled to rely on the text of the fifty five dollars big which says that there is going to be a hearing and such hearing is not going to happen at least seven days into the future at seven days in the future judge has had his language over with little activity it cetera et cetera was a judge conscious freedoms to do something when the parties may have strategically made a asked and i think that i think that because the rules exist when when that notice of appearance gets fought the district court is aware that tonsil has now been involved fourteen the memorandum supporting the default judgment the application for the default happens on december th or eight thousand nine hundred and forty nine which happens to be a friday afternoon talking about trying to take advantage of the rules