IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11035

EDDIE WOOTEN, 

 Plaintiff–Appellee,

v.

MCDONALD TRANSIT ASSOCIATES, INCORPORATED, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before SMITH, WIENER, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Treating the petition for rehearing en banc as a petition for panel 

rehearing, see Internal Operating Procedure accompanying 5th CIR. R. 35, the 

petition for panel rehearing is GRANTED.

We previously issued an opinion assessing whether evidence adduced 

at a default-judgment “prove-up” hearing can cure a facially deficient 

complaint, a question this Court left open forty years ago in Nishimatsu 

Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th Cir. 1975).1 

See Wooten v. McDonald Transit Assocs., Inc., 775 F.3d 689 (5th Cir. 2015).

Upon reconsideration, we withdraw the prior opinion in its entirety and 

replace it with the following.

 

1 See id. at 1206 n.5 (“We do not consider here the possibility that otherwise fatal 

defects in the pleadings might be corrected by proof taken by the court at a hearing.”).

United States Court of Appeals

Fifth Circuit

FILED

June 10, 2015

Lyle W. Cayce

Clerk

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Plaintiff–Appellee Eddie Wooten filed suit against his former employer,

Defendant–Appellant McDonald Transit Associates, Inc., under the Age 

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634, alleging 

discrimination and retaliation. McDonald Transit never answered or 

defended the suit. The clerk entered default against McDonald Transit, and, 

after holding a damages hearing in which Wooten provided live testimony,

the district court entered default judgment for Wooten. McDonald Transit 

filed a motion to set aside the default judgment, which the district court 

denied. Although Wooten’s complaint contained very few factual allegations, 

we conclude that it met the low threshold of content demanded by Federal 

Rule of Civil Procedure 8 because it provided McDonald Transit with fair 

notice of Wooten’s claims. The complaint was therefore sufficient, both on its 

own and in combination with the evidence presented at the prove-up hearing, 

to support the default judgment. Additionally, we see no clear error in the 

district court’s finding that McDonald Transit’s default was willful, justifying 

the denial of relief under Rules 55(c) and 60(b). As there was no abuse of 

discretion in either the district court’s entry of default judgment or its refusal 

to set aside that judgment, we affirm.

I. BACKGROUND

On June 22, 2012, Wooten sued McDonald Transit in federal court, 

alleging discrimination on the basis of his age and retaliation after he made a 

claim of age discrimination. In his complaint, Wooten alleged that he was a 

former employee of McDonald Transit, where he had worked from 1999 until 

May 1, 2011. At the time he was fired, he worked as a Class B Mechanic. He 

further alleged:

In October 2010, [Wooten] made a claim to the Equal 

Employment Opportunity Commission for age discrimination. 

After the claim was made and continuing until [his] employment 

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ended, [McDonald Transit], in violation of the ADEA, 

discriminated and retaliated against [Wooten], and created a 

hostile work environment, until such time that Plaintiff was 

constructively discharged on or about May 1, 2011.

The district clerk issued a summons the same day that Wooten filed his 

complaint. On July 18, 2012, Wooten returned the summons with an 

affidavit of service indicating that service had been executed on July 5 on 

McDonald Transit’s president and registered agent, Robert T. Babbitt, by 

certified mail, return receipt requested. But the return receipt indicated that 

process had in fact been served on Brenda Roden, another McDonald Transit 

officer. After McDonald Transit failed to appear, plead, or otherwise defend 

Wooten’s suit, the district clerk entered default against McDonald Transit on 

October 30, 2012, and Wooten moved for a default judgment. 

The district court held a hearing on the motion in December 2012, but 

took issue with the fact that Roden, not Babbitt, had been served. The court 

adjourned the hearing so that Wooten could attempt proper service on 

Babbitt again. The district clerk issued new summons, and Wooten returned 

with a new affidavit of service indicating service had been executed by 

personal delivery on Babbitt on January 17, 2013. Again McDonald Transit 

failed to appear, answer, or defend; again the district clerk entered default;

and again Wooten moved for a default judgment. 

The district court held a hearing on whether to enter default judgment 

on June 7. At that hearing, which the court expressly designated “a hearing 

to prove up damages for a default judgment,” Wooten provided testimony that

elaborated on his factual allegations. He testified that he was born in 

January 1956, making him fifty-four years old at the time he made his claim 

to the EEOC. He explained that during his tenure at McDonald Transit, he 

had been promoted from the position of Class B Mechanic to the position of 

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Shop Foreman, and he had “never” been “wr[itten] up” or “reprimanded.” He 

also described his retaliation claim in greater detail: he was demoted from 

Shop Foreman, lowering his pay by $2 an hour; he was given menial work; 

his hours were changed; and he was denied opportunities for additional jobrelated certification. This treatment, he said, persisted for “about six 

months.” The district court entered a default judgment that same day.

McDonald Transit filed a motion to set aside the default judgment on 

June 18. In an affidavit accompanying the motion, Babbitt averred that he 

was never served with process, that he had not learned of the suit naming 

McDonald Transit as a defendant until June 11, and that he retained counsel 

to challenge the default judgment soon afterward. 

McDonald Transit challenged the judgment on numerous grounds 

under Federal Rules of Civil Procedure 55(c) and 60(b). In particular, 

McDonald Transit invoked Rule 60(b)(1) (mistake, inadvertence, surprise, or 

excusable neglect); (b)(3) (fraud, misrepresentation, or misconduct by an 

opposing party); (b)(4) (the judgment is void); and (b)(6) (any other reason 

that justifies relief). In asking the court to set aside the default judgment 

under Rule 60(b)(1), McDonald Transit claimed that it was not Wooten’s 

employer; that Wooten had failed to obtain a right-to-sue letter before suing 

McDonald Transit; and that Wooten had failed to file suit within the required 

time from the issuance of a right-to-sue letter. McDonald Transit also 

asserted that it was not properly served and therefore had not willfully 

disregarded its duty to respond. In response, Wooten argued that McDonald 

Transit had failed to offer any explanation for its default, failed to produce 

sufficient evidence of a meritorious defense, and relied on Babbitt’s 

uncorroborated and self-serving statements.

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The district court denied McDonald Transit’s motion to set aside the 

default judgment. Based on evidence of service of process to Babbitt and 

Roden (who the court had learned was a vice president of McDonald Transit), 

the court inferred that McDonald Transit had knowingly and intentionally 

failed to answer or otherwise defend against the complaint. The court further 

rejected McDonald Transit’s claim to raise meritorious defenses on the 

grounds that the “record is far from conclusive” and these defenses were 

effectively waived by failing to answer the complaint.

McDonald Transit timely appealed both the default judgment and the 

order denying its motion to set aside the default judgment.

II. JURISDICTION AND STANDARD OF REVIEW

Wooten sued McDonald Transit for violations of federal law under the 

ADEA; accordingly, the district court had subject-matter jurisdiction under 

28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. 

We review the entry of a default judgment for abuse of discretion. U.S. 

for the Use of M–CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1013 

(5th Cir. 1987). Rule 55(c) provides that a district court “may set aside an 

entry of default for good cause” and “may set aside a default judgment under 

Rule 60(b).” Correspondingly, we also review the district court’s refusal to set 

aside a default judgment for abuse of discretion. Lacy v. Sitel Corp., 227 F.3d 

290, 291–92 (5th Cir. 2000); Shipco, 814 F.2d at 1013. “Any factual 

determinations underlying that decision,” including a finding of willful 

default, “are reviewed for clear error.” Lacy, 227 F.3d at 292; see Dierschke v. 

O’Cheskey (In re Dierschke), 975 F.2d 181, 184 (5th Cir. 1992). 

Yet, we undertake this review with a grain of salt. “Because of the 

seriousness of a default judgment, and although the standard of review is 

abuse of discretion, even a slight abuse of discretion may justify reversal.” In 

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re Chinese-Manufactured Drywall Prods. Liab. Litig., 742 F.3d 576, 594 (5th 

Cir. 2014) (quoting Lacy, 227 F.3d at 292). Review of a default judgment puts 

competing policy interests at play. On one hand, “[w]e have adopted a policy 

in favor of resolving cases on their merits and against the use of default 

judgments.” Id. On the other, this policy is “counterbalanced by 

considerations of social goals, justice and expediency, a weighing process that

lies largely within the domain of the trial judge’s discretion.” Id. (quoting 

Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999))

(alterations and internal quotation marks omitted).

III. DISCUSSION

On appeal, McDonald Transit raises two principal issues: (1) whether 

the district court erred in entering a default judgment and (2) whether the 

district court erred in denying McDonald Transit’s motion to set aside the 

judgment.

A. The Entry of the Default Judgment

“A default judgment is unassailable on the merits but only so far as it is 

supported by well-pleaded allegations, assumed to be true.” Nishimatsu, 515 

F.2d at 1206 (citing Thomson v. Wooster, 114 U.S. 104, 113 (1885)). Put 

another way, “[t]he defendant is not held to admit facts that are not wellpleaded or to admit conclusions of law.” Id. “On appeal, the defendant, 

although he may not challenge the sufficiency of the evidence, is entitled to 

contest the sufficiency of the complaint and its allegations to support the 

judgment.” Id. In addition, a court “may conduct hearings . . . when, to enter 

or effectuate judgment,” it needs to, inter alia, “establish the truth of any 

allegation by evidence . . . or . . . investigate any other matter.” Fed. R. Civ. P. 

55(b)(2)(C); see also 10A Charles A. Wright et al., Federal Practice & Procedure

§ 2688 (3d ed. 1998) (“[W]hen it seems advantageous, a court may conduct a 

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hearing to determine whether to enter a judgment by default. . . . [T]he court, 

in its discretion, may require some proof of the facts that must be established 

in order to determine liability.”).

Neither party disputes that entry of default was appropriate. The 

parties disagree about (1) the ADEA standard that governs Wooten’s claim;

(2) the sufficiency of Wooten’s allegations; and (3) whether the district court 

can consider evidence presented at the hearing in addition to the allegations 

in supporting default judgment.

1. The ADEA Framework

McDonald Transit contends that Wooten’s complaint insufficiently 

alleged the essential elements of his prima facie retaliation claim under the 

ADEA—in particular, membership in a protected class and qualification. 

The ADEA makes it unlawful “for an employer to discriminate against 

any of his employees . . . because such individual . . . has opposed any practice 

made unlawful by this section, or because such individual . . . has made a 

charge, testified, assisted, or participated in any manner in an investigation, 

proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). To establish

a prima facie retaliation claim under the ADEA, a plaintiff “must show (1) that 

he engaged in a protected activity, (2) that there was an adverse employment 

action, and (3) that a causal link existed between the protected activity and the 

adverse employment action.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 

254, 259 (5th Cir. 2001). Holtzclaw unequivocally added a fourth element to

the claim—a plaintiff who sought re-employment under the ADEA must prove 

as a part of his prima facie case that he was qualified for his position. Id.2

 

2 The Holtzclaw court reasoned that because qualification for the job is a requirement 

to make a prima facie discrimination claim under the ADEA, and because “[r]etaliation

claims are nothing more than a protection against discrimination,” “it would be illogical not 

to require one here.” 255 F.3d at 259. Burlington Northern & Santa Fe Railway Co. v. White, 

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Contrary to McDonald Transit’s position, neither § 623(d) nor Holtzclaw 

requires that Wooten prove he was a member of a class protected by the ADEA 

discrimination provisions. Compare 29 U.S.C. § 631 (defining class of 

individuals covered by age-discrimination provisions), with id. § 623(d) 

(permitting retaliation provision to apply to “any” employee). Therefore, the 

only elements that Wooten must sufficiently allege are (1) protected activity, 

(2) adverse employment action, (3) causal link, and (4) qualification.

 

548 U.S. 53 (2006), casts doubt on this reasoning. In that Title VII retaliation case, the Court 

examined the relationship between that statute’s discrimination and retaliation provisions. 

See id. at 61–67. The Burlington Court found that the provisions featured different language 

and responded to different purposes—namely, “[t]he substantive [discrimination] provision 

seeks to prevent injury to individuals based on who they are, i.e., their status[, whereas t]he 

antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e.,

their conduct.” Id. at 63. It therefore concluded that the discrimination and retaliation 

provisions were not “coterminous” and “reject[ed] the standards applied in the Courts of 

Appeals that have treated the antiretaliation provision as forbidding the same conduct 

prohibited by the antidiscrimination provision.” Id. at 67. Nevertheless, because Burlington 

addressed Title VII rather than the ADEA, it did not “unequivocally overrule” Holtzclaw, and 

we remain bound to apply that case. See Tech. Automation Servs. Corp. v. Liberty Surplus 

Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) (internal quotation marks omitted); cf. United 

States v. Short, 181 F.3d 620, 624 (5th Cir. 1999) (“[T]his panel is bound by the precedent of 

previous panels absent an intervening Supreme Court case explicitly or implicitly overruling 

that prior precedent . . . .” (emphasis added)).

We observe that our Court has not consistently required plaintiffs to prove 

qualification under Holtzclaw after Burlington. See, e.g., Munoz v. Seton Healthcare, Inc., 

557 F. App’x 314, 321 (5th Cir. 2014) (per curiam) (citing Holtzclaw for the elements of a 

prima facie case of retaliation under the ADEA but omitting the qualification element); Pree 

v. Farmers Ins. Exch., 552 F. App’x 385, 388 (5th Cir. 2014) (per curiam) (same); Miller v. 

Metro Ford Auto. Sales, Inc., 519 F. App’x 850, 851–52 (5th Cir. 2013) (per curiam) (same). 

Moreover, even before Burlington, a panel of our Court “decline[d] to extend the Holtzclaw 

requirements” to a case involving wrongful discharge, though that case was before us on 

appeal from judgment as a matter of law and there “ha[d] been no determination that [the 

plaintiff] . . . was not qualified.” EEOC v. Dunbar Diagnostic Servs. Inc., 92 F. App’x 83, 

84–85 (5th Cir. 2004) (per curiam). We need not decide whether Holtzclaw remains viable, 

however, because—as explained below—we hold that Wooten’s complaint satisfies the 

minimal pleading requirements of Rule 8 regardless of whether “qualification” is a 

necessary element of his prima facie case.

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2. The Sufficiency of the Pleadings to Support the Judgment

We begin by determining whether Wooten’s complaint, either standing 

alone or considered together with his testimony at the hearing, supplied an 

adequate foundation for the default judgment. We conclude that Wooten’s 

complaint, although admittedly light on factual details, advanced a colorable

claim for relief and provided McDonald Transit with the requisite notice to 

satisfy Rules 8 and 55. Given that the complaint itself met the minimum 

standards of Rule 8, we decide that the testimony at the prove-up hearing 

served the limited purpose of “establish[ing] the truth of [the] allegation[s] by 

evidence,” Fed. R. Civ. P. 55(b)(2)(C), and therefore may be considered in 

assessing the entry of default judgment without implicating the Nishimatsu

quandary, see 515 F.2d at 1206 n.5. 

Despite announcing that a default judgment must be “supported by wellpleaded allegations” and must have “a sufficient basis in the pleadings,” the 

Nishimatsu court did not elaborate on these requirements. See id. at 1206. 

Nothing in the record or the parties’ briefs discusses how to determine what is 

“well-pleaded” or “sufficient,” and we have found no guidance in our own cases. 

Nevertheless, we draw meaning from the case law on Rule 8, which sets forth 

the standards governing the sufficiency of a complaint.

Rule 8(a)(2) requires a pleading to contain “a short and plain statement 

of the claim showing that the pleader is entitled to relief.” The purpose of this 

requirement is “to ‘give the defendant fair notice of what the . . . claim is and 

the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The factual 

allegations in the complaint need only “be enough to raise a right to relief 

above the speculative level, on the assumption that all the allegations in the 

complaint are true (even if doubtful in fact).” Id. (footnote and citations 

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omitted). “[D]etailed factual allegations” are not required, but the pleading 

must present “more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).3

Wooten’s complaint contains the following factual allegations: 

(1) Wooten is a former employee of McDonald Transit; (2) Wooten was 

employed by McDonald Transit from 1999 until May 1, 2011; (3) at the time 

he was fired, Wooten was a Class B mechanic earning $19.50 per hour, plus 

benefits; (4) in October 2010, Wooten filed an age-discrimination claim with 

the EEOC, after which McDonald Transit “discriminated and retaliated 

against [Wooten], and created a hostile work environment, until such time 

that [Wooten] was constructively discharged on or about May 1, 2011”; and

(5) McDonald Transit’s unlawful conduct caused Wooten harm, including 

damages in the form of lost wages and benefits, mental anguish, and noneconomic damages. 

We hold that these allegations, while perhaps less detailed than 

McDonald Transit would prefer, are nevertheless sufficient to satisfy the low 

threshold of Rule 8. Wooten’s complaint provides McDonald Transit with 

“fair notice” of his claim that McDonald Transit engaged in conduct

prohibited by the ADEA—discrimination and retaliation—in response to the 

age-discrimination charge he filed with the EEOC. See Twombly, 550 U.S. at 

555. The allegations are a far cry from the sort of “unadorned, the-defendantunlawfully-harmed-me accusation” decried in Iqbal. See 556 U.S. at 678.

 

3 Although most cases addressing Rule 8 arise in the context of a Rule 12(b)(6) motion 

to dismiss, we recognize that a defendant ordinarily must invoke Rule 12 in order to avail 

itself of that rule’s protections. See Fed. R. Civ. P. 12(b) (“[A] party may assert the following 

defenses by motion . . . .”). Accordingly, as a default is the product of a defendant’s inaction, 

we decline to import Rule 12 standards into the default-judgment context. Cf. Iqbal, 556 U.S. 

at 678 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” (emphasis added) 

(quoting Twombly, 550 U.S. at 570)).

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They indicate that Wooten worked for McDonald Transit for twelve years; he 

filed an EEOC charge accusing McDonald Transit of age discrimination 

during his eleventh year of employment; McDonald Transit took adverse 

actions against Wooten in retaliation for that charge; and within seven

months Wooten found his work conditions so intolerable that he was 

constructively discharged. 

Admittedly, Wooten’s complaint could have specified the nature of the 

discrimination and the retaliation he experienced; but his allegations are not 

so vague that McDonald Transit lacked notice of the contours of Wooten’s 

claim. Indeed, as Wooten points out, the illustrative civil rules forms 

published with the Federal Rules of Civil Procedure provide even less factual 

detail than the complaint at issue here: Form 11, a sample complaint for 

negligence, alleges only that “[o]n date, at place, the defendant negligently 

drove a motor vehicle against the plaintiff” and “[a]s a result, the plaintiff was 

physically injured, lost wages or income, suffered physical and mental pain, 

and incurred medical expenses of $_____.” Fed. R. Civ. P. app. Form 11. The 

content of this form also undermines the premise that the complaint must 

explicitly include every element of the plaintiff’s prima facie case to satisfy 

Rule 8; the form contains no reference to a legal duty or proximate cause, two 

elements of a prima facie case for negligence. See Restatement (Third) of 

Torts: Liab. for Physical and Emotional Harm § 6 cmt. b (2009). Rather, all 

elements of the cause of action are present by implication. The same holds 

true here: Wooten’s complaint alleges (1) a protected activity (filing an EEOC

charge),4 (2) adverse employment actions (discrimination, retaliation, and 

 

4 Filing a discrimination charge with the EEOC qualifies as a protected activity 

under the ADEA. See 29 U.S.C. § 623(d).

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creation of a hostile work environment),5 (3) a causal link (the adverse actions 

commencing after Wooten filed the EEOC charge and occurring, at most, seven 

months later),6 and (4) qualification (twelve years of continuous employment).7

Moreover, if McDonald Transit believed that Wooten’s allegations were 

inadequate to support the requested relief or even to enable an intelligent 

response, it simply could have moved for a more definite statement or to 

dismiss the case for failure to state a claim. See Fed. R. Civ. P. 12(b)(6), (e).

In view of the above, we hold that Wooten’s complaint is “well-pleaded” 

for default-judgment purposes. As such, we have little difficulty concluding 

 

5 To establish an adverse employment action, the plaintiff must show that “a 

reasonable employee would have found the challenged action materially adverse, which in 

this context means it well might have dissuaded a reasonable worker from making or 

supporting a charge of discrimination.” Burlington, 548 U.S. at 68 (internal quotation 

marks omitted).

6 In Clark County School District v. Breeden, 532 U.S. 268 (2001) (per curiam), the 

Supreme Court made clear that a narrow band of retaliation claims can establish causation 

by the “very close” temporal proximity alone. See id. at 273 (collecting cases fulfilling this 

requirement based on three- and four-month delays). But see Strong v. Univ. Healthcare 

Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (“Breeden makes clear that . . . temporal 

proximity alone, when very close, can in some instances establish a prima facie case of 

retaliation. But we affirmatively reject the notion that temporal proximity standing alone 

can be sufficient proof of but for causation.” (citation omitted)). 7 Although Holtzclaw made qualification for the job an additional requirement, it did 

not explain how to evaluate that requirement. See 255 F.3d at 260. Nevertheless, a review 

of our ADEA jurisprudence indicates that “qualified” has a broadly colloquial meaning in 

this context; it refers to objective job qualifications (e.g., training, experience, and physical 

capacity), not “essential functions” or any other term of art associated with the term’s 

counterpart in the Americans with Disabilities Act. See, e.g., Berquist v. Wash. Mut. Bank, 

500 F.3d 344, 349–50 (5th Cir. 2007) (concluding that the plaintiff had made out a prima 

facie case of ADEA discrimination by showing that he “possessed the same job qualifications 

when [his employer] terminated him as when [it] assigned him to [his last] position,” as 

evidenced by the employee meeting “the objective criteria listed in a job posting” and holding 

a similar job title for two years); cf. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 & 

n.3 (5th Cir. 1988) (holding that “a plaintiff challenging his termination or demotion [under 

the ADEA] can ordinarily establish a prima facie case of age discrimination by showing that 

he continued to possess the necessary qualifications for his job at the time of the adverse 

action” and explaining that “[b]y this we mean that plaintiff had not suffered physical 

disability or loss of a necessary professional license or some other occurrence that rendered 

him unfit for the position for which he was hired”).

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that the evidence received at the damages prove-up hearing served a 

permissible purpose under Rule 55(b)(2)—to “establish the truth of any 

allegation by evidence” or “investigate any other matter”—and we deem

Nishimatsu’s complaint-supplementation hypothetical inapplicable, see 515 

F.2d at 1206 n.5. Wooten’s testimony simply added factual details that 

fleshed out his claim: for instance, his testimony that he had never been 

disciplined served as further proof of his qualification, and his testimony that 

he was demoted, given menial work, and denied opportunities for workrelated certification for approximately six months after he filed his EEOC 

charge added specificity to the adverse-employment-action and causal-link 

elements of his case. Considering this evidence in addition to the allegations 

in Wooten’s complaint, we see ample grounds for the entry of default 

judgment, and we hold that the district court did not abuse its discretion in 

entering that judgment.

B. The Refusal to Set Aside the Default Judgment

On appeal, McDonald Transit renews its arguments for setting aside 

the judgment under Federal Rule of Civil Procedure 60(b)(1) and (b)(6).8 We 

address these arguments in turn.

1. Rule 60(b)(1) Grounds for Setting Aside the Judgment

“In determining whether good cause exists to set aside a default 

judgment under Rule 60(b)(1) we examine the following factors: ‘whether the 

default was willful, whether setting it aside would prejudice the adversary, 

and whether a meritorious defense is presented.’” Jenkens & Gilchrist v. 

Groia & Co., 542 F.3d 114, 119 (5th Cir. 2008) (quoting In re Dierschke, 975 

 

8 McDonald Transit says that it maintains its objections to the district court’s ruling 

on the grounds of fraud under Rule 60(b)(3) and lack of personal jurisdiction under Rule 

60(b)(4), but it fails to argue these points in its brief. We therefore deem these arguments 

abandoned on appeal. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).

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F.2d at 183); accord In re Chinese-Manufactured Drywall Prods., 742 F.3d at 

594. “A finding of willful default ends the inquiry, for ‘when the court finds 

an intentional failure of responsive pleadings there need be no other 

finding.’” Lacy, 227 F.3d at 292 (quoting In re Dierschke, 975 F.2d at 184). 

The defendant has the burden of showing by a preponderance of the evidence 

that its neglect was excusable, rather than willful, In re ChineseManufactured Drywall Prods., 742 F.3d at 594, and we review the district 

court’s corresponding factual determination for clear error, In re Dierschke, 

975 F.2d at 184.

Here, the district court concluded that McDonald Transit willfully 

defaulted. It reached this conclusion based on two facts: (1) Wooten properly 

executed service of process on McDonald Transit and (2) McDonald Transit 

offered no answer or other defense. McDonald Transit contends that the 

district court misapplied the standard for willfulness under Rule 60(b)(1). 

McDonald Transit cites Jenkens & Gilchrist, 542 F.3d at 123, for the 

proposition that “perfection of service is not determinative—the defendant’s 

knowledge of the perfected service, and the defendant’s actions post-service 

also play a role in measuring the willfulness of a defendant’s default.” By 

this standard, McDonald Transit argues, it presented post-service evidence 

that it did not default willfully. 

We are unpersuaded. If McDonald Transit is to be believed, its failure 

to answer or defend even after supposedly proper process amounts to mere 

mistake or inadvertence. But the company offers no explanation for what 

happened between its presumed receipt of process and the date on which it 

retained counsel to try to vacate the default judgment. It only reasserts that 

service was not properly executed. Without any explanation from McDonald 

Transit, the company has encroached on the sort of behavior we have decried 

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as “‘play[ing] games’ with the court.” See In re Chinese-Manufactured 

Drywall Prods., 742 F.3d at 595 (holding that the foreign defendant willfully 

defaulted when it did not contest that it was served with the complaint and 

did not provide any explanation for its default even when pressed at oral 

argument); In re Dierschke, 975 F.2d at 183–84 (holding that the defendant 

willfully defaulted when he admitted that he had received the complaint, but 

explained that he had failed to respond because he was involved in another 

suit and did not understand that he was being served in a new case). All 

McDonald Transit can say is that it rushed to court as soon as it learned the 

district court had entered a default judgment against it. Yet this latebreaking diligence pales in comparison to the kind of post-service conduct 

that we have found to foreclose a finding of willfulness. See, e.g., Lacy, 227 

F.3d at 292–93 (holding that the defendant’s default was not willful when its 

counsel “made repeated contacts with [the plaintiff] in an attempt to resolve 

the suit” and “made plain its intention not to agree to waiver of service and 

its belief that service therefore had not yet been effected”). Indeed, despite 

being served with process on two separate occasions nearly seven months 

apart, there is no evidence that McDonald Transit made any effort to resolve 

the matter before the entry of default judgment. 

Accordingly, we hold that McDonald Transit has not borne its burden 

to show that its default was excusable, and we cannot say, on this record, 

that the district court’s factual finding of willfulness was clearly erroneous.

2. Rule 60(b)(6) Grounds for Setting Aside the Judgment

Under Rule 60(b)(6), a court may vacate a judgment for “any other 

reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Though a “grand 

reservoir of equitable power,” we exercise this power sparingly, granting 

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No. 13-11035

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relief only in “extraordinary circumstances.” Hesling v. CSX Transp., Inc., 

396 F.3d 632, 642 (5th Cir. 2005) (internal quotation marks omitted). 

McDonald Transit attempts to flood this reservoir with points of error. 

It collects all of its other claims for relief and asserts that together they make 

it “inequitable” to impose a judgment awarding damages against it. This 

argument fails because a movant must show any reason justifying relief 

“other than the more specific circumstances set out in Rules 60(b)(1)–(5).” 

Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (emphasis added). All of 

McDonald Transit’s claims are claims it has brought or is bringing under a 

different Rule 60(b) base. Therefore, we hold that McDonald Transit has 

failed to establish “extraordinary circumstances” justifying relief under Rule 

60(b)(6), Hesling, 396 F.3d at 642, let alone an abuse of discretion in the 

district court’s refusal to set aside the judgment, Lacy, 227 F.3d at 292.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

 Case: 13-11035 Document: 00513074575 Page: 16 Date Filed: 06/10/2015