The Honorable Daniel M. Friedman, United States Circuit J udge for the Federal 1 Circuit, sitting by designation. The Hono rable Joseph E. Stevens, Jr., United States District Judge for th e 2 Western District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 96-2847/3587

___________ Gary Hall, doing business as Hall's * Food Marts, * * Appellee, * * Appeal from the United States District v. * Court for the Western District of * Missouri. T.J. Cinnamon's, Inc., * * Appellant. *

___________ Submitted: May 21, 1997 Filed: August 14, 1997

___________ Before BEAM, FRIEDMAN, and LOKEN, Circuit Judges. 1

___________ BEAM, Circuit Judge.
T.J. C innamon's, Inc. (TJC) appeals from the district court's orders enterin g 2 default judgment against it and denying it Rule 60(b) relief. We affirm.As part of the franchise agreement, Hall made and delivered baked goods to a 3 local Sam's Club food wholesaler. Sam's Club would then pay TJC for the goods, and in turn, TJC would pay Hall. -2- I. BACKGROUND Gary Hall is a citizen and resid ent of Missouri. TJC is a Delaware corporation, with its principal place of business in New Jersey. I n June 1986, Hall and TJC entered into a franchise a greement. In 1994, disputes arose between the two concerning their respecti ve obligations under the agreement. Both parties claimed the other ha d breached the franchise agreement: Hall claimed TJC breached the agreement by failing to remit funds due him from Sam's Club; TJC claimed Hall breached the agreement by 3 failing to operate a retail outlet. In August 1995, Hall commenced this action against TJC alleging that it had: (1) breached the franchise agreement by failing to remit th e Sam's Club funds; (2) wrongfully t erminated the franchise agreement; and (3) failed to honor Hall's exclusive fr anchise rights to the Springfield, Missouri territory. Hall also requested an accounting of the Sam's Club funds. In early October, TJC was served with the summons and complaint.
TJC failed to answer the complaint. In December 1995, Hall moved for entry of defau lt, and later, for entry of default judgment against TJC. The district cour t ente red an order requiring TJC to show cause why a default judgment should not b e enter ed against it. TJC again failed to respond. The district court then scheduled a hearing on the default judgment.
Before the defaul t judgment hearing, TJC's New York counsel wrote a letter to the Missouri distr

ict court explaining that TJC would not retain local counsel because of its p oor financial condition. The letter further explained that TJC did not intend to ente r an appearance in the litigation. The default judgment hearing was held on MayThe district court awarded Hall the following sums: (1 ) $10,123.69 plus interest 4 an d $5,348.44 for attorney's fees on the claim for past-due Sam's Club funds; (2 ) $50,000 on the wrongful termination of franchise agreement claim; and (3) $20,000 on the territorial rights claim. The court dismissed as moot Hall's request for a n accounting of the Sam's Club funds, in light of its award of damages on that claim. -3- 15, 1996 . Although TJC did not appear at the hearing or enter an appearance, Hal l test ified and submitted documents in support of his claims. The district cour t subsequently entered default judgment for Hall on all claims. 4 Following the entry of

default judgment on May 31, TJC retained local counsel and, o n June 28, appealed the entry of the default judgment. On that date, TJC als o filed a motion to set aside the default judgme nt under Federal Rules of Civil Procedure 55(c) and 60(b). After the district court denied TJC's request fo r Rule 60(b) relief, TJC filed another notice of appeal, challenging that denial.
II. DISCUSSION TJC attempts to characterize its default as techn ical and not willful. The record, however, supports the district court's conclusion that TJC chose to ig nore this litigation. We review the district court's entrance of default judgment for an abuse of discretion. Comiskey v. JFTJ Corp. , 989 F.2d 1007, 1009 (8th Cir. 1993). We find no abuse. When served with the comp laint, TJC was warned that failure to answer within the allotted time woul d result in default judgment being entered against it. Despite its knowledg e of both the underlying lawsuit and the request for default judgment, TJ C watched the litigation from afar for over seven months, apparently without any intention of enterin g an appearance or defending the action in a legally cognizable manner

. Furthermore, TJC's alleged inability to retain local counsel is belied by its own actions as it promptly hired local cou nsel following the entry of default judgment. Faced with TJC's refusal to respond to the litigation, the district court entered default judgment and-4-

award ed Hall the damages he established with sufficient certainty. In refusing t o sanction TJC's inaction, the district court committed no abuse of discretion.

We next address the appeal from the denial of Rule 60(b) relief. On the same day TJC appealed the district court's default judg ment to this court, it asked the district court to set aside that same decision. The filing of this Rule 60(b) motion more than te n days after the entry of default judgment failed to stay the finality of the appeale d order. See Fed. R. App. P. 4(a)(4)(F). Thus, the notice of appeal was timely an d vested jurisdiction over the issue of the validity of the default judgment in this court. Since it is generally understood that a federal district court and a federal court o f appeals should not atte mpt to assert jurisdiction over a case simultaneously, Griggs v. Provident Consumer Discount Co. , 45 9 U.S. 56, 58 (1982), it is possible, if not likely, that the d istrict court had no jurisdiction to consider the soundness of the defaul t judgment as requested by the Rule 60(b) motion. However, assuming, arguendo, that t he district court order denying the Rule 60(b) motion is now properly before us, we note that o n these facts, TJC has not shown mistake, excusable neglect or any othe r grounds warranting relief from judgment. Consequently, we find that the refusal to set aside the default judgment was well within the district court's discretion. See Cana l Ins. Co. v. Ashmore , 61 F.3d 15, 17 (8th Cir. 1995). We have considered th e remainder of TJC's arguments and find them to be without merit.
III. CONCLUSION Finding no abuse of discretion in the district court's entry of default judgment for Hall, we affirm a s to that appeal. We also affirm the denial of the Rule 60(b) motion.-5-

A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.