2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-1-2010

USA v. James Mulvenna

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3012

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3012

___________

UNITED STATES OF AMERICA

 

VS.

JAMES J. MULVENNA,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 09-cv-00750)

District Judge: Honorable James Knoll Gardner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 4, 2010

Before: SMITH, FISHER and GARTH, Circuit Judges

(Opinion filed: March 1, 2010)

_________

 OPINION

_________

PER CURIAM

James Mulvenna, proceeding pro se, appeals from the District Court’s June 10,

2009 order entering default judgment against him in the amount of $256,062.03. For the

reasons that follow, we will affirm the District Court’s order.
 The District Court did not enter the May 11th letter on the docket until after this 1

appeal was filed. 

2

I.

On February 19, 2009, the United States filed a complaint against Mulvenna

seeking to reduce to judgment federal tax assessments. See 26 U.S.C. § 7401. On March

9, 2009, the District Court entered an order, which was mailed to Mulvenna, referring the

case to a Magistrate Judge to schedule and conduct a settlement conference. 

On April 2nd, upon a motion by the United States, the District Court reissued the

summons that was originally issued on February 19th. On April 16th, the summons and

complaint were personally served on Mulvenna. The summons directed him to answer

the complaint within twenty days of service, and stated that if he failed to do so,

“judgment by default will be taken against you for the relief remanded in the complaint.” 

Mulvenna’s answer was thus due on May 6, 2009. He did not, however, answer

the complaint. Rather, on May 11, 2009, the District Court received a letter from him

stating, in its entirety: “I am writing to ask that a Default Judgment not be done in the

case 09-CV-00750.” Although Mulvenna sent the United States an identical letter on

April 29th, he did not serve it with the letter that he mailed to the District Court.1

On May 26th, twenty days after the pleading deadline had expired, the United

States requested that the clerk enter a default against Mulvenna based on his failure to

plead or otherwise defend. See Fed. R. Civ. P. 55(a). The United States served the
 Because Mulvenna does not appeal from an order refusing to lift or vacate a 2

default, we do not employ the factors articulated in Poulis v. State Farm Fire & Casualty

Co., 747 F.2d 863, 868 (3d Cir. 1984). See Anchorage Assocs. v. V.I. Bd. of Tax

Review, 922 F.2d 168, 177 n.9 (3d Cir. 1990).

3

request on Mulvenna via mail. On May 27th, the District Court clerk made an entry on

the case docket that Mulvenna was in default for “failure to appear, plead, or otherwise

defend.” 

Mulvenna did not respond to the United States’ request for default or file a motion

to set aside the default pursuant to Federal Rule of Civil Procedure 55(c). And on June

10th, the United States filed a request for entry of default judgment for $256,062.03,

which it served on Mulvenna via mail. On the same day that the request was filed, the

District Court clerk entered default judgment against Mulvenna under Rule 55(b)(1). 

Mulvenna now appeals from the June 10th order.

II.

We have jurisdiction under 28 U.S.C. § 1291 and review the entry of default

judgment for abuse of discretion. United States v. $55,518.05 in U.S. Currency, 728 F.2d

192, 195 (3d Cir. 1984). This Court does not favor entry of defaults or default 2

judgments, and we “require doubtful cases to be resolved in favor of the party moving to

set aside the default judgment so that cases may be decided on their merits.” Id. (internal

quotation and citation omitted). 

Federal Rule of Civil Procedure 55(a) provides that “the clerk must enter default”
4

when a defendant has “failed to plead or otherwise defend, and that failure is shown by

affidavit or otherwise.” Once the default has occurred, Rule 55(b)(1) allows the clerk to

enter default judgment if the plaintiff’s claim is for a sum certain and the defendant has

failed to appear and is not an infant or an incompetent person. The time between the

entry of default and the entry of default judgment provides the defendant with an

opportunity to move, pursuant to Rule 55(c), to vacate the default. American Alliance

Ins. Co., Ltd. v. Eagles Ins. Co., 92 F.3d 57, 59 (2d Cir. 1996). Additionally, if the

defendant has appeared in the action Rule 55(b)(2) requires that, among other things, the

defendant be provided written notice of the application. 

It is clear that Mulvenna was in default as he did not file an answer or otherwise

respond to the complaint that was filed against him. He provides no explanation for his

lack of responsiveness, claiming only that he “responded within the time limit.” As

support for this contention, he points to the letter that he sent to the District Court and has

attached a receipt showing that it was mailed on May 8, 2009. Even if this letter was

construed as an answer, it was untimely, as his response to the complaint was due on May

6th. 

Accordingly, the central question is whether Mulvenna’s letter requesting that

“default judgment not be entered” constitutes an “appearance” so as to fall under the

ambit of Rule 55(b)(2). We hold that it is not. “Normally, appearance in an action

involves some presentation or submission to the court.” Port-Wide Container Co., Inc. v.
5

Interstate Maint. Corp., 440 F.2d 1195, 1196 (3d Cir. 1971). However,“not every act by a

party that is addressed to the court or relates to the litigation will be deemed an

appearance,” and, at the very least, the defendant must show an intent to defend to avoid

default. 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

2686 (3d ed.). Mulvenna’s one-line letter requesting that default not be entered does not

indicate an such an intent and thus does not constitute an appearance that triggers Rule

55(b)(2)’s notice requirements. See Bermudez v. Reid, 733 F.2d 18, 22 n.7 (2d Cir. 1984)

(“We agree that the single letter . . . asking for an extension did not constitute an

appearance.”) (citing Rutland Transit Co. v. Chicago Tunnel Terminal Co., 233 F.2d 655

(7th Cir. 1956)). Further, Mulvenna took no action after receiving notice that default had

been entered against him, thereby signaling that he was not going to take the requisite

steps to defend the litigation. 

Thus, as the United States’ claim was for a sum certain that was detailed in a

declaration accompanying the request for default judgment, the clerk properly entered

default judgment against Mulvenna under Rule 55(b)(1). We also note that while pro se

litigants are afforded various procedural protections, they are not entitled to a general

dispensation from the rules of procedure or court-imposed deadlines. Accordingly, the

facts here demonstrate that the District Court did not abuse its discretion in entering

default judgment against Mulvenna. 

For the foregoing reasons, we will affirm the District Court’s June 10, 2009 order.