* Pursuant to 5th Cir. R. 47.5, the court has determined t hat this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 2, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 03-10151

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MELVIN R HASSELL; ET AL,

Defendants.

MELVIN R HASSELL

Defendant-Appellant

Appeal from the United States District Court

For the Northern District of Texas

USDC No. 3:02-CV-112-G

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *-2-

Pro se appellants Melvin

R. Hassell and Nelda Jo Hassell (“the Hassells”) appeal from the

district court’s entry of default judgment against them and from the den ial of their motions to set

aside the default judgment. The United States filed suit against the Hassells to collect income taxes

assessed on the Hassells, to set aside as fraudulent the conveyance of their residence to Summit

Christian Academy, to foreclose the tax liens on the property and to obtain judgment for any balance

remaining after the foreclosure sale. The district court extended the time for the Hassells to file an

answer. On that date, the Hassells filed three non-responsive documents with the court. The district

court stated that t he Hassells appeared to be in default and allowed them an extension to file an

answer within the contemplation of F ED

. R. C IV

. P. 7(a) and 8(b). The court also ordered that in the

absence of a t imely answer the Government should move for default judgment. Two days after the

second extended deadline passed, the Hassells moved for a third extension to file an answer. The

district court granted the request, but ordered that the document filed by the Hass ells must be an

answer to the Gov ernment’s complaint within the contemplation of Rules 7(a) and 8(b). On the

deadline for the third extension for filing an answer, the defendants filed a motion to dismiss claiming

lack of jurisdiction. The government then filed a motion for a clerk’s entry of default and motion for

default judgment. The clerk’s entry of default was issued on August 12, 2002. The district court

then denied the Hassells’ motion to dis miss. On September 5, 2002, the district court entered a

default judgment against the Hassells.

On September 9, the Hassells moved to set aside the default judgment on the basis that they

filed a bankruptcy petition on August 26, 2002, and accordingly the default judgment was void by

operation of the bankruptcy stay under 11 U.S.C. § 362. The bankruptcy court then retroactively

annulled the automatic stay so as not to impede the default judgment. On December 4, 2002, after-3-

being informed of the bankruptcy court’s order, the district court denied the Hassells’ motion to set

aside the verdict. On the same day, an attorney appearing on behalf of the Hassells filed a motion

for leave to amend their motion to set aside the default judgment and a motion for leave to file an

answer. On January 9, 2003, these motions were denied. On February 7, 2003 Melvin R. Hassell

(“Mr Hassell”) filed a notice of appeal.

Mr. Hassell subsequently filed a motion to add his wife to the prior notice of appeal nunc pro

tunc . The motion was carried with the case, and is now GRANTED.

As an init ial matter, the appeal is not timely as to the entry of the default judgment and the

motion to set aside the default judgment. S ee F ED

. R. A PP

. P. 4. This Court thus has no jurisdiction

over those issues. S ee Dison v. Whitley , 20 F.3d 185, 186 (5th Cir. 1994) (“A timely filed notice

of appe al is a jurisdictional prerequisite to our review.”). Accordingly, these claims are

DISMISSED for lack of jurisdiction. S ee Portis v. Harris County, Tex

., 632 F.2d 486, 487 (1980).

The Hassells’ appeal of their motion to set aside the default judgment and motion for leave to file

an answer are timely. S ee F ED

. R. A PP

. P. 4. This Court reviews a refusal to reopen a default

judgment for abuse of discretion. Federal Savings & Loan v. Kroenke

, 858 F.2d 1067, 1069 (5th

Cir. 1988).

The Hassells assert that the automatic stay p rovision provided good cause for their

procedural default. S ee F ED

. R. C IV

. P. 55(c) (allowing judgements of default to be set aside in

accordance with rule 60(b)). The Hassells offer no legal support for this proposition. This argument

is thus inadequately briefed and accordingly is waived. See Nichols v. Scott , 69 F. 3d 1255, 1287

n.67 (5th Cir. 1995); F ED

. R. A PP

. P. 28(a)(4). Even if this argument was not waived, it is without

merit. The automatic stay provision was triggered by the filing of the bankruptcy petition on August-4-

26, 2002. S ee 11 U.S.C. §362. The Hassells’ third extended deadline for submitting an answer to

the Government’s complaint was August 5, 2002. Clearly, the subsequent stay could not constitute

good cause for the default.

The Hassells next argue that there was good cause to set aside the default judgment because

after de nying t heir motion to dismiss the district court failed to give the Hassells a particularized

statement of deficiencies and an opportunity to cure these defects. The Hassells had already been

given an opportunity to cure the defects and file an answer that complied with the federal rules.

They did not do so. The district court is not required to allow a pro se litigant to cure defects ad

infinit um. Accordingly, it was not an abuse of discretion for the district court to deny the Hassells’

motion to amend their motion to set aside the default judgment and their motion to file an answer.

The denial of the motion to amend the motion to set aside the default judgment and the motion to

file an answer is AFFIRMED.

The motion to add Nelda Jo Hassell to the notice of appeal is GRANTED. The appeals of

the default judgment and the motion to set aside the default judgment are DISMISSED for lack of

jurisdiction. In all other respects, the judgment of the district court is AFFIRMED.