UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-2556

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ONE 1988 DODGE PICKUP,

ROBERT QUINTANILLA-BUENDIA,

Appellant.

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Appeal from the United States District Court for the

Southern District of Texas

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Before GARWOOD, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

This litigation was commenced wh en the United States (the

Government), on February 12, 1991, filed a complaint for forfeiture

alleging that a Mexican-made Dodge pickup truck brought int o the

United States was subject to forfeiture pursuant to 19 U.S.C. §§

160 8, 1613. Pursuant to Rule C(3) of the Supplemental Rules for

Certain Admiralty and Maritime Claims, the clerk of the district

court issued a warrant of arrest for the defendant pickup truck.

Notice of the action and arrest was then published in a newspaper

of gene ral circulation in the district on March 17, 24, and 31,2

1991. Any interested claimant was required to file a claim by

April 10, 1991, and serve his answer within twenty days after the

filing of the claim. S ee Rule C(6) of the Supplemental Rules. As

no claim or answer challenging the forfeiture was made, the

Government filed a motion for entry of default decree of forfeiture

on April 16, 1991. The district court's default judgment

forfeiting the truck to the United States was entered the following

day, April 17. On April 22, 1991, appellant Robert QuintanillaBuendia (Buendia), allegi ng that he owned the vehicle, filed and

served a motion to set aside the default judgment, which the

district court denied on May 15, 1991. Buendia then filed and

served a motion for rehearing on May 22, 1991, and a notice of

appeal on May 28, 1991. The motion for rehearing was denied by the

district court on May 29, 1991. No subsequent notice of appeal was

filed.

We initially address whether the May 28 notice of appeal was

nullified under Fed. R. App. P. 4(a)(4) by the May 22 mot ion for

rehearing that was not disposed of until May 29. If, under H arcon

B arge Co. v. D&G Boat Rentals, Inc

. , 784 F.2d 665 (5th Cir.) (en

banc), cert. denied , 107 S.Ct. 398 (1986), the April 22 motion to

set aside the April 17 default judgment is treated, for purposes of

Rule 4(a)(4), as a motion under Fed. R. Civ. P. 59, then the notice

of appeal would not be nullified by the pen dency of the May 22

motion for rehearing. This is because in that situation the May 22

motion for rehearing, com plaining of the May 15 order overruling

the April 22 motion, would, under H arcon Barge

, be regarded a s a

Rule 59 motion directed to the overruling of a prior Rule 59 motion3

(the April 22 motion); as such, the May 22 motion would n ot come

within Rule 4(a)(4) because Rule 4(a)(4) does not embrace a second

Rule 59 motion that merely challenges the denial of the original

Rule 59 motion. Ellis v. Richardson , 471 F.2d 720, 721 (5th Cir.

1973); Harrell v. Dixon Bay Transportation Co. , 718 F.2d 123, 127

(5th Cir. 1983). On the other hand, if the April 22 motion,

despite being filed and served within ten days after the April 27

judgment it sought to set aside, is regarded as being under Fed. R.

Civ. P. Rule 60(b), rather than under Rule 59, and thus as not

within Rule 4(a)(4), see Browder v. Director

, 98 S.Ct. 556, 560 n.7

(1978), then the May 22 motion for rehearing would nullify the

notice of appeal under Rule 4(a)(4). This is because an order (in

this case that of May 15) denying a motion that is treated as one

under Rule 60(b) is not only itself appealable, but is also

properly subject to a Rule 59 motion (here the May 22 motion), and

in such an instance a timely Rule 59 motion brings into play Rule

4(a)(4). E leby v. American Medical Systems

, 795 F.2d 411, 412-413

(5th Cir. 1986). Under that hypothesis, the May 22 motion, filed

within ten days of the May 15 order it sought to set aside, would

be regarded as a Rule 59 motion under Harcon Barge

, and, as it was

not dispo sed of until May 29, would nullify the May 28 notice of

appeal.

We conclude that the April 22 motion is properly treated, for

purposes of Rule 4(a)(4), as one under Rule 59, and that

accordingly the May 28 notice of appeal was not nullified.

Although the April 22 motion recites that it is a "Motion to

Set Aside Default Judgment pursuant to Rule 55(c) and Rule 60(b) of4

the Federal Rules of Civil Procedure," it is clear that the proper

characterization of the motion for these purposes is not determined

by the label that the motion bears. The rule of H arcon Barge

applies "regardles s of how . . . [the motion] is styled", and

"'however it is styled.'" I d

. at 668, 670; Bodin v. Gulf Oil

Corp ., 877 F.2d 438, 440 (5th Cir. 1989).

A more persuasive argument against treating the April 22

motion as one under Rule 59 is the provision of Fed. R. Civ. P.

Rule 55(c) that " for good cause shown, the court . . . if a

judgment by default has been entered, may likewise set it aside in

accordance with Rule 60(b)." S ee also 10 Wright, Miller & Kane,

Federal Practice and Procedure: Civil 2d § 2692, p. 465 (1983)

("Rule 55(c) expressly makes the procedure and grounds set out in

Rule 60(b) fo r relief from final judgments applicable to default

judgments."). The First and Eleventh Circuits have relied on this

language in Rule 55(c) to hold that a motion to set aside default

judgment, filed within ten days after the judgment but not denied

until more than thirty days thereafter, was not a Rule 59 motion,

and hence did not come within Rul e 4(a)(4) so as to postpone

running of the time to give notice of appeal. In each case, the

only notice of appeal was given within thirty days after the order

overruling the motion to set aside the default judgment, and the

court of appeals took jurisdiction of the appeal from that order

(as to which no motion for reconsideration had been f iled in the

trial court) and ultimately reversed it, though applying a standard

of review stated to be more restrictive than if the default

judgment itself had been timely appealed. Echevarria-Gonzalez v.5

Gonzalez-Chapel

, 849 F.2d 24 (1st Cir. 1988); Gulf Coast Fans v.

Midwest Electronics Importers

, 740 F.2d 1499 (11th Cir. 1984).

Gulf Coast was decided before Harcon Barge and Echevarria does not

cite it or any of its progeny, such as Charles v. Daley , 799 F.2d

343, 347 (7th Cir. 1986). On the other hand, the Seventh Circuit

in essentially the same situation has applied Harcon Barge and

Charles to hold that a motion to set aside default judgment, served

within ten days after entry of the judgment, invoked Rule 4(a)(4),

so that the time for giving notice of appeal did not start running

until the district court overruled the motion, and that hence a

notice of appeal given within thirty days thereafter was a timely

appeal of both the default judgment itself and the order denying

the motion to set it aside. A nilina Fabrique de Colorants v.

Aakash Chemicals

, 856 F.2d 873, 876 (7th Cir. 1988). S ee also Sine

v. Local No. 992

, 790 F.2d 1095 (4th Cir. 1986) (pendency of timely

motion under Rule 59 to set aside default judgment renders notice

of appeal filed before motion disposed of a nullity under Rule

4(a)(4)).

We elect to follow the approach taken by the Seventh Circuit

in Anilina

. As we stated in B odin : "'[a]ny motion that draws into

question the correctness of the judgment is functionally a motion

under Rule 59(e)'" ( id . at 440, quoting Harcon Barge at 669). In

Willie v. Continental

, 784 F.2d 706, 707 (5th Cir. 1986) (en banc),

we observed "In our en banc decision today in Harcon Barge

, we hold

that any motion to amend a judgment served within ten days after

the entry of judgment, except for a proper Rul e 60(a) motion to

correct purely clerical errors, is to be considered a Rule 59(e)1 See also Charles describing the holding in Harcon Barge

,

which it adopts, as being "that all substantive motions served

within 10 days of the entry of a judgment will be treated as

based on Rule 59, and therefore as tolling the time for appeal."

Charles at 347.

2 We recognize that the Eleventh Circuit, in Gulf Coast

, stated that Rule 55(c) made Rule 60(b) the "exclusive, method for

attacking a default judgment in the district court." Id . at

1507. However, Gulf Coast gives no reasons for this conclusion

and cites no authority for it; moreover, Gulf Coast is pre- Harcon

Barge . In Echevarria , the First Circuit expressly declined to

"decide whether a Rule 60(b) motion is the sole mechanism for

attacking a default judgment," and instead relied on the fact

that the motion there "specifically invoked Rules 55(c) and

60(b)" and not Rule 59, id . at 27, a ground of decision plainly

at odds with the rationale of Harcon Barge (which Echevarria does

not cite). In Sine , the Fourth Circuit held that a default

judgment could be attacked by a Rule 59(e) motion; and the

Seventh Circuit likewise implicitly so held in Anilina , at least

for purposes of Harcon Barge and Rule 4(a)(4).

6 motion." 1 No exception is made or suggested for default judgments.

To countenanc e such an exception would undermine the central

rationale of Harcon Barge

, which was to create a uniform

"brightline rule." Id . at 670. See also Charles at 347. Nor do

we consider that Rule 55(c) mandates a different result. While

that rule does call Rule 60(b) into play, Harcon Barge clearly

contemplates that its holding will a pply even though the relief

sought is available under Rule 60(b) and the motion s pecifically

invokes Rule 60(b) alone. Nor does anything in the wording of Rule

55(c) expressly purport to make Rule 60(b) the exclusive vehicle by

which a default judgm ent may be set aside. We noted in H arcon

Barge that "[w]hile Rule 60(a), providing for the correction of

clerical errors, limits the otherwise unr estricted scope of Rule

59(e), the same can not be said of Rule 60(b)." I d

. at 669

(emphasis added). 2 Whatever the effect of Rule 55(c) on the3 As reflected in the text, infra , under no conceivable

standard would we hold that the district court erred in entering

the default judgment or overruling the April 22 motion.

4 We also observe that treating all motions seeking to set

aside a default judgment as Rule 60(b) motions has the

disadvantage, in the case of motions served within ten days of

the entry of the judgment, of enhancing the likelihood of

unnecessary appeals: the defaulted party, in order to appeal the

judgment itself instead of merely the denial of Rule 60(b)

relief, will often have to do so before the district court rules

on the motion (if the ruling is not made within thirty days of

the judgment's entry), and if the district court is inclined to

grant the motion, the appellate court will have to remand the

case for this purpose, while if the district court denies the

motion, a second appeal (often combined with a stay of the

initial appeal) will likely ensue. The Seventh Circuit

recognized at least some of these problems in dicta in its preHarcon Barge opinion in Textile Banking Co. v. Rentschler , 657

F.2d 844, 849-50 & n.2 (7th Cir. 1981) (there, however, no timely

Rule 59 motion was filed in any event), but apparently regarded

them as insignificant. We view these potential inefficiencies

with somewhat more concern.

7 standard to be applied in ruling on a motion to set aside a default

judgment served within ten days of the judgment's entry, or in

reviewing such a ruling on appeal, a matter we do not decide, 3 we

conclude that it does not govern the determination of whether the

motion is within Rule 4(a)(4), and that such determinatio n is

properly made under the brightline rule of Harcon Barge

. It seems

evident that Rule 55(c) is not directed at the timing and

effectiveness of notice of appeal or the effect thereon of Rule

4(a)(4), which is all that Harcon Barge relates to. Thus,

application of Harcon Barge to default judgments will not undercut

the purpose or function of Rule 55(c). 4

Accordingly, we conclude that the April 22 motion, filed and

served within ten days after entry of the April 17 judgment, was,

pursuant to Harcon Barge

, a Rule 59(e) motion for purposes of Rule5 Under Rule 4(a)(4), the timeliness of the notice of appeal

is plainly to be measured from May 15, when the order overruling

the April 22 motion (which we have held was a timely one under

Rule 59(e)) was entered. However, that makes no difference here

as, the Government being a party to the case, the time allowed

for notice of appeal is sixty days, Fed. R. App. P. 4(a)(1), so

the notice would be timely even if measured from April 17, when

the default judgment was entered.

The Government complains that the notice of appeal

references only the April 17 default judgment itself, not the May

15 order. But, as the May 15 order is one overruling a timely

Rule 59(e) motion, the notice of appeal clearly suffices to bring

up the April 17 judgment. Cf. Federal Trade Commission v.

Hughes , 891 F.2d 589 (5th Cir. 1990) (notice of appeal filed

after denial of Rule 60(b) motion but referencing only the

underlying judgment, and untimely as to it, does not suffice to

bring up the denial of the Rule 60(b) motion, although timely in

that respect). Moreover, the notice of appeal also suffices to

bring up the May 15 order. See Lloyd v. Gill , 406 F.2d 585, 587

(5th Cir. 1969) ("The denial of appellants' motion for new trial

is clearly reviewable here, since the appeal is from a final

judgment."); Provancial v. United States , 463 F.2d 760, 762 (8th

Cir. 1972) ("Although the notice of appeal did not state that the

appeal was being taken from the denial of the motion [for new

trial or to amend findings and judgment], review here of both the

judgment and the denial of the motion is proper."). Cf. Foman v.

Davis , 83 S.Ct. 227 (1962) (notice of appeal from denial of

timely Rule 59(e) motion brings up underlying judgment also).

8 4(a)(4). Hence, under Ellis , the May 22 motion attacking the May

15 denial of the April 22 motion, was not a motion within Rule

4(a)(4). Therefore, the May 22 motion, though not disposed of

until May 29, did not nullify the May 28 notice of appeal. 5

We now turn to, and reject, Buendia's chall enges to the

default judgment and the May 15 order overruling his motion to set

it aside. The record reflects that the vehicle had been seized in

August 1990 by United States Customs in Laredo, Texas, when Buendia

drove it across the border from Mexico. In November 1990, Buendia,

aided by the attorney who represents him here and represented him

below, filed a bond and claim respecting the vehicle with Customs,9

and both were notified that the U nited States Attorney would

institute judicial forfeiture proceedings in federal court.

Buendia and his attorney both reside in Laredo. In February 1991,

these proceedings were instituted in the Laredo Div ision of the

United St ates District Court for the Southern District of Texas.

Notice of the proceedings was published three times, March 17, 24,

and 31, 1991, in a newspaper of general circulation in Laredo. The

Assistant United States Attorney called Buendia's attorney's office

at least twice prior to April 4, 1991, and, Buendia's attorney

being unavailable, left his name, number, and a message about the

vehicle. Buendia's attorney received the messages. On April 4,

the Assistant United Stat e s Attorney wrote Buendia's attorney

advising that on April 8 he intended to file a motion for default

judgment in the judicial forfeiture proceed ing. Buendia admits

that he received this letter on April 9. On April 10 the Assistant

United States Attorney mailed his motion for entry of default

judgment, sending a copy to Buendia's attorney at the same time.

No response was made by Buendia's attorney to any of the foregoing

u ntil approximately April 10, when Buendia's attorney called but

the Assistant United States Attorney was unavailable. Moreover,

Buendia never filed or tendered a claim or answer in the judicial

forfeiture proceedings and never asserted any thing in the way of

any even purported defense to the forfeiture.

The district court found that Buendia had adequate and timely

notice of the judicial forfeiture proceedings, that he had failed

to demonstrate good ca use or excusable neglect for not sooner

filing a claim or answer in those proceedings, and that he had made6 Because Buendia's appeal is so clearly lacking in merit, we

assume, arguendo only , that he has demonstrated adequate

standing, despite never having filed or tendered an actual claim

in the judicial forfeiture proceedings. Though we pretermit

decision of that question, we note the following.

The Supplemental Rules for Certain Admiralty and Maritime

Claims govern judicial forfeiture proceedings. See One 1978

Piper Navajo , 748 F.2d at 317. Buendia asserts that he complied

with the Supplemental Rules by filing a claim and a cost bond

prior to the start of judicial proceedings. However, under

Supplemental Rule C(6), a claimant must file his verified claim

within ten days of execution of process and serve his answer

within twenty days after the filing of the claim. The rule

states that a claimant "shall file his claim . . . after process

has been executed." At least one court has held that a claimant

may not satisfy the rule with a claim filed prior to execution of

process. United States v. U.S. Currency in the Amount of

$2,857.00 , 754 F.2d 208, 213-14 (7th Cir. 1985). Moreover, a

recognized authority states that "[t]he filing of a claim is a

prerequisite to the right to file an answer and defending on the

merits." 7A Moore's Federal Practice ¶ C.16, p. 700.14 (2d Ed.

1988). See also Bank of New Orleans v. Marine Credit Corp ., 583

F.2d 1063, 1068 (8th Cir. 1978); One 1978 Piper Navajo , 748 F.2d

at 319.

10 no ass ertion or showing of any meritorious defense to the

forfeiture. The record amply supports these findings. Under these

circumstances, no error is demonstrated in either the district

court's default judgment or in its refusal to set that judgment

aside. S ee, e.g., United States v. One 1978 Piper Navajo

, 748 F.2d

316, 318 (5th Cir. 1984) ("those claiming own ership in the . . .

[forfeited item] needed to prove both that their failure to timely

answer or otherwise defend was due to justifiable neglect and that

they had a defense to the forfeiture which would probably have been

successful"). 6

Accordingly, the district court's judgment is

AFFIRMED.