The Honorable Charles A. Shaw, United States District Judge for the Eastern 1 District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3199

___________ Barbara Inman, * * Appellee, * * App eal from the United States Distric t v. * Court for the Eastern District of Missouri

. * American Home Furniture Placement, * Inc.; AJF Transportation Consultants, * Inc.; Anthony Ferrentino, Sr., * * Appellants. *

___________ Submitted: April 18, 1997 Filed: July 14, 1997

___________ Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge. After appellants failed to file an answer, participate in discovery, or otherwise defend this action, the district court entered default judgment against them and denied 1 a subsequent motion to set aside that judgment. We affirm.
I. BACKGROUNDEntry of a de fault under Federal Rule of Civil Proceedure 55(a) is not, as such 2 entry of a judgment; it merely permits the plaintiff to move for a de fault judgment under Rule 55(b)(2), assuming that the default is not set aside under Rule 55(c). -2- This case involves Barbara Inman's December 30, 1992, c laim against American Home Furniture Placement , AJF Transportation Consultants, and Anthony Ferrentino, Sr., a lleging violations of Title VII and Missouri state law. Between February 199 3 and March 1995 defendants made three motions to strike or dismiss the comp laint. The first two mo tions were denied as moot after Inman amended her pleadings. The third motion wa s denied on the merits by the district court, which scheduled a Septembe r 1995 tria l. After that order was entered, defendants' participation in the litigatio n ceased. They did not answer the complaint, they did not respond to di scovery requests, and defendant Ferrentino did not appear for his scheduled deposition. In August 1995 Inman moved for default. The district court clerk entered default against each defendant, and th e district court set the motion for a hearing. Spurred to 2 action at last, the defendants moved to set aside entry of default. In September th e distri ctcourt conducted a hearing at which, after a continuance, the defendant s represented that their inaction was due solely to the negligence of their attorney, who to ld the court she was experiencing "personal problems." The district court the n entereda default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) an d denied defendants' subsequent Rule 60(b)(6) motion to set asid e judgment. Defendants (represented by new counsel) appeal both rulings.
II. DISCUSSION
We review a district court's action in imposing default judgment for abuse o f discretion. Ackra Direct Marketing Corp. v. Fingerhut Corp. , 86 F.3d 852, 856 (8thDefendants attempt to distinguish Boogaerts and Comi skey on the grounds that 3 they involved Federal Rule of Civil Procedure 37 rather than Rule 55( c). We fail to see the logic in punishing c lients for attorneys' active misconduct in the discovery process while exempting them when counsel ignores the case altogether. -3- Cir. 19 96). We review the denial of a motion to set aside judgment under Rul e 60(b)(6) under the same standard. Agostini v. Felton , 65 U.S.L.W. 4524, 4533 (U.S. June 23, 1997) (Nos. 96-552/96-553).
As a n initial matter, defendants contend that the district court abused it s dis cretion in imputing counsel's inaction to them. They assert that they ar e unsophis ticatedlitigants who did all they could to keep abreast of the case. Th e Supre meCourt, however, has explained that our focus should not be on whethe r defendants "did all they reasonably could in polic ing the conduct of their attorney [but] onwhether their attorney, as [defendants'] agent, did all [s]he reasonably could t o compl ywith the court-ordered [deadlines]." Pioneer Investment Servs. Co. v

. Brunswick Assoc. , 5 07 U.S. 380, 396 (1993). Defendants claim that Mann v. Lewis , 108 F.3d 145, 147 (8th Cir. 1997), modifies that principle in the context of defaul t judgments. In Mann , the distri ct court dismissed plaintiff's claims with prejudice after supplement al discovery had been filed two days late and compliance with a pretria l order was seven days overdue. On appeal, we held that dismissal with prejudice was too harsh a sanction for this attorney negligence. Thus, Mann is an example of th e violation not being severe enough to merit extinction of a party's claim. It does not hold that, as a general matter, parties are not bound by counsel's acts. Litigants choose counsel at their peril. Comiskey v . JFTJ Corp. , 989 F.2d 1007, 10 10 (8th Cir. 1993); Boogaerts v. Bank of Bradley , 961 F.2d 765, 768 (8th Cir

. 199 2). While it may seem harsh to make defendants answer for their attorney' s

3 behavior, any other result would punish Inman for the inaction of her opponents ' lawyer. Defendants are better suited to bear this risk. If they were truly diligent-4-

litigants who were misled and victimized by their attorney, they have recourse in a malpractice action. Link v. Wabash R.R. , 370 U.S. 626, 634 n. 10 (1961).
Wenext consider whether default judgment was appropriate here. On the one hand, such a sanction should not be u sed to punish "marginal failure[s] to comply with tim e requirements." Ackra , 86 F.3d at 856. On the other hand, default judgment i s "appro priate when the party's conduct includes 'willful violations of court rules , contumacious conduct, or intentional delays.'" Id. (quoting United States v. Harre , 983 F.2d 128, 130 (8th Cir. 1993)).
Defendants co ncede that counsel's actions were more than a marginal violation of time requirements. Before the default hearing, counsel had done nothing regarding this litiga tion since filing a motion to dismiss in April 1994. She failed to answer a three-year-old complaint, neglected discovery requests, and ignored repeated inquiries from Inman's counsel. The district court was within its discretion in interpreting this behavior as willful and a failure to defend under Rule 55(c). Defendants point to other factors they claim nevertheless w eigh against the entry of default judgment. They argue that the si ze of the award and their potential defenses make default judgment inappropriate in this case. We have previously rejected both of these excuses for dilatory conduct under Rule 55(c). Ackra , 86 F.3d at 857. Finally, defendants argue that the district court erred in refusing to grant thei r motion to set aside the default judgment, pursuant to Rule 60(b)( 6). However, we have held that "Rule 60(b) has never been a vehicle for relief because of an attorney' s i ncompetence or carelessness." Sutherland v. ITT Continental Baking Co. , 710 F.2d 473, 476-77 (8th Cir. 1983). Defendants point out that they have now complied with all out standing discovery requests. This compliance does not excuse their earlie r inattention and comes too late to convert defendants' case into one of "exceptional-5-

circumstances" warranting relief under Rule 60(b)(6). Atkinson v. Prudential Property Co. , 43 F.3d 367, 373 (8th Cir. 1994).
III. CONCLUSION For the foregoing reasons, the decision of the district court is affirmed. A true copy. ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.