* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41274

Summary Calendar

 

FORMAL SPECIALISTS LTD.

Plaintiff - Appellee

v.

WILBERT LYONS INC. Etc., ET. AL

Defendants

WILBERT LYONS, INC., doing business as Al’s Formal Wear

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:01-CV-182 

--------------------

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

Wilbert Lyons, Inc., (“Lyons”) appeals from the district

court’s grant of default judgment and denial of its motion to

vacate the default judgment awarded to Formal Specialists. This

court has no jurisdiction to review the district court’s grant of
No. 03-41274

-2-

the default judgment because Lyons filed an untimely notice of

appeal. See FED. R. APP. P. 4(a)(1)(A). 

For the first time on appeal, Lyons argues that the

complaint was confusing and ambiguous as to whether it was named

as a party to the lawsuit. Because Lyons did not raise this

issue in the district court in either its motion to vacate or in

its subsequent pleadings, this issue will not be addressed for

the first time on appeal. See F.D.I.C. v. Mijalis, 15 F.3d 1314,

1327 (5th Cir. 1994).

Lyons argues that the district court abused its discretion

in concluding that its failure to file an answer was willful and

intentional. Lyons argues that its failure to respond was due to

attorney error. Lyons does not renew his arguments that the

default judgment should be vacated due to a meritorious defense

or because the judgment was procured by fraud. Accordingly,

these arguments are abandoned on appeal. Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993)(deeming argument abandoned on

appeal by party’s failure to argue the issue in the body of

appellate brief). 

A district court may set aside an entry of default or

default judgment for “good cause” under Federal Rules of Civil

Procedure 55(c) and 60(b). See Lacy v. Sitel Corp., 227 F.3d at

291-92. This court reviews the denial of such relief for abuse

of discretion. Id. A determination of intentional failure to
No. 03-41274

-3-

respond is reviewed for clear error. Dierschke v. O’Cheskey, 

975 F.2d 181, 184 (5th Cir. 1992).

The district court did not clearly err in determining that

Lyons intentionally failed to answer the complaint. Lyons

received the complaint which warned that an answer was required

within 20 days and that a default judgment would be taken if no

answer was filed. See FED. R. CIV. P. 12(a). Even assuming that

counsel drafted an untimely answer for Lyons to file, Lyons did

not act expeditiously to cure the default. See Dierschke, 975

F.2d at 184. The record reflects that Lyons delayed over nine

months from the date of the default judgment to file its motion

to vacate the default judgment. Accordingly, the district court

did not abuse its discretion in denying Lyons’ motion to vacate

the default judgment. The judgment of the district court is

AFFIRMED.