UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-60814

____________

GLYNN W. ROGERS,

Plaintiff-Appellee-Cross-Appellant,

versus

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY;

ENTERGY CORPORATION COMPANIES BENEFITS PLUS

LONG TERM DISABILITY PLAN,

Defendants-Appellants-Cross-Appellees.

Appeals from the United States District Court

for the Southern District of Mississippi

March 2, 1999

Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Appellants, Hartford Life and Accident Insurance Company (“Hartford”) and Entergy

Corporation Companies Benefits Plus Long Term Disability Plan (the “Plan”), appeal the district

court’s denial of their motions to set aside the default judgment entered against them. Appellee,

Glynn W. Rogers, cross-appeals the district court’s order setting aside that amount of the default

judgment awarded for medical expenses and the prejudgment interest attributable to such expenses.
-2-

We affirm.

I

Rogers, a former employee ofEntergyCorporation,sought long-termdisability benefitsfrom

the Plan. Hartford insured the long-term disability portion of the Plan. Hartford denied Rogers longterm disability benefits. Rogers then filed a complaint under the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”), against the Plan and Hartford.

Rogers undertook to serve the Plan with process by sending a copy of the summons and

complaint by certified mail, return receipt requested, to the Plan’s administrator in New Orleans,

Louisiana. With respect to Hartford, Rogers requested that Hartford’s agent for process in

Mississippi, Elizabeth Coleman, execute a waiver of service of process. She complied with this

request, and the waiver of service of process was filed with the district court.

Neither Hartford nor the Plan timely answered Rogers’ complaint. On Rogers’ request, the

district court clerk filed an entry of default. Following a hearing, the district court then entered a

default judgment against bothHartford and the Plan, awardingRogers expensesfor disabilitybenefits,

medical benefits, prejudgment interest, and attorney’sfees. Over a month later, Hartford and the Plan

became aware of the default judgment, and promptly moved for relief. Hartford and the Plan

motioned the district court to set aside the default judgment in its entirety, or, in the alternative, to

set aside that portion of the judgment relating to medical benefits. The district court denied their

motions to set aside the default judgment in its entirety. It decided, however, that Rogers could not

recover expenses for medical treatment, and ordered the default judgment adjusted accordingly.

Hartford and the Plan timely appealed; Rogers cross-appealed.

Hartford and the Plan contend that the district court abused its discretion in refusing to set
-3-

aside the entire default judgment. Hartford argues that it appeared in the action by waiving service

of process, and therefore, under FederalRule ofCivil Procedure 55(b)(2) it was entitled to three days

notice prior to the entry of a default judgment. Hartford never received notice. Additionally, it

arguesthat its failure to respond timely to Rogers’ complaint constituted excusable neglect, and that

other equitable considerations weigh in favor ofsetting aside the default judgment. The Plan argues

that Rogers improperly served it with process, and therefore, the district court lacked jurisdiction to

enter the default judgment. It also argues that we should set aside the default judgment because

venue was improper under ERISA. Finally, the Plan argues that its failure to respond timely to

Rogers’ complaint constituted excusable neglect.

In his cross-appeal, Rogers arguesthat the district court erroneously set aside that portion of

the default judgment compensating him for medical expenses. According to Rogers, the award of

medical expensesis necessary to restore him to the position he occupied prior to the wrongful denial

of his long-term disability benefits. Rogers contends that ERISA provides for the recovery of this

type of relief, and asks us to reinstate the award of medical expenses.

We discuss the arguments raised by Hartford first. We then consider the Plan’s arguments.

Finally, we discuss the merits of Rogers’ cross-appeal.

II

We have adopted a policy in favor of resolving cases on their merits and against the use of

default judgments. See Lindsey v. Prive Corp., No. 97-10651, 1998 WL 820241, at *4 (5th Cir. Nov.

24, 1998); Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir.

1989)(“Default judgments are a drastic remedy, not favored by the Federal Rules and resorted to by

the courts onlyin extreme situations.”). This policy, however, is “‘counterbalanced by considerations
-4-

ofsocial goals, justice and expediency, a weighing process[that] lieslargelywithin the domain of the

trial judge’s discretion.’” Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir.

1990)(quoting Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970)); see also Dolphin

Plumbing Co. of Florida v. Financial Corp. of North America, 508 F.2d 1326, 1327 (5th Cir.

1975)(“The decision whether to set aside a default judgment isleft to the sound discretion ofthe trial

judge”). Accordingly, we review the district court’s decision not to set aside the default judgment

for abuse of discretion. See Dierschke v. O’Cheskey, 975 F.2d 181, 184 (5th Cir. 1992).

A

Hartford arguesthat the district court should have set aside the default judgment because the

court entered the judgment without notice to Hartford. Rule 55(b)(2) provides: “If the party against

whom judgment by default is sought has appeared in the action, the party (or, if appearing by

representative, the party’srepresentative)shallbe served withwritten notice ofthe application at least

3 days prior to the hearing on such application.” Id. (emphasis added). Whether the district court

should have given Hartford notice of the default judgment depends on whether Hartford “appeared

in the action.”

We have taken an expansive view as to what constitutes an appearance under Rule 55(b)(2).

We have not construed the phrase “has appeared in the action” to require the filing of responsive

papers or actual in-court efforts by the defendant. See United States v. McCoy, 954 F.2d 1000, 1003

(5th Cir. 1992) (noting the “relatively low threshold for making an appearance for purposes of Rule

55(b)(2)’s three-day notice requirement”). Rather, to qualify as an appearance and trigger Rule

55(b)(2)’s no tice requirements, the defendant’s actions merely must give the plaintiff a clear

indication that the defendant intends to pursue a defense and must “be responsive to the plaintiff’s
-5-

formal Court action.” Baez v. Kresge Co., 518 F.2d 349, 350 (5th Cir. 1975); see also Sun Bank,

874 F.2d at 276 (noting that appearances “‘include a variety of informal acts on defendant’s part

which are responsive to plaintiff’sformal action in court, and which may be regarded as sufficient to

give plaintiff a clear indication of defendant’s intention to contest the claim’”) (quoting 6 MOORE’S

FEDERAL PRACTICE § 55.05(3) (2d ed.)).

According to Hartford, it made an appearance for purposes of Rule 55(b)(2). First, Hartford

argues that the waiver of process executed by Coleman qualifies as a response to Rogers’ formal

court action. Second, Hartford contends that Rogers knew that it intended to contest the suit,

because Hartford denied Rogers’ claim for disability benefits, and because Rogers included “a

completely frivolous count” within his complaint. Thus, according to Hartford, its waiver of process

coupled with Rogers’ knowledge that it intended to defend the suit entitled it to three days notice of

Rogers’ application for default judgment.

To decide whether Hartford’s waiver of process and other actions constitute an appearance

under Rule 55(b)(2), we begin by considering the procedural framework established by the Federal

Rules of Civil Procedure. After filing a complaint, the Rules require the plaintiff to serve the

defendant with process. See FED.R.CIV. P. 4(m) (requiring dismissal of a case in which the plaintiff

does not accomplish service within 120 days after filing the complaint, unless the plaintiff can show

good cause for not doing so). Until the plaintiffserves the defendant, the defendant has no duty to

answer the complaint and the plaintiff cannot obtain a default judgment. See Broadcast Music, Inc.

v. M.T.S. Enter., Inc., 811 F.2d 278, 282 (5th Cir. 1987) (“No person need defend an action norsuffer

judgment against him unless he has been served with process and properly brought before the

court.”). Once the plaintiff effects service of process, however, Rule 12 is triggered and then the
-6-

defendant must answer the complaint or risk default. See FED R. CIV. P. 12 (requiring a defendant

located within the United States who waivesformalservice of process under Rule 4(d) to answer the

complaint within sixty days of the date that the plaintiffsent the request for waiver). This procedural

framework implies that a defendant can not make an appearance for purposes of Rule 55(b)(2) until

after the plaintiff effects service and the defendant becomes susceptible to default.

We note that mere acceptance of formal service of process cannot constitute an appearance

for purposes of Rule 55(b)(2). If we construed the phrase that broadly, then every defendant would

become entitled to notice, because the act that makes a defendant susceptible to default—acceptance

of service—would also constitute an appearance. Under such a reading, a defendant could never

default without also appearing in the action. The language of Rule 55, however, evidences an intent

to impose a notice requirement in only limited circumstances. See North Cent. Illinois Laborer’s

Dist. Council v. S.J. Groves & Sons Co. Inc, 842 F.2d 164, 169 (7th Cir. 1988) (“Rule 55(b)(2) . .

. states that notice of a default hearing is only required if the party ‘has appeared in the action.’ It

would have been an easy task to draft the rule to specifically state that notice of a default hearing is

always required, yet this was not done.”). We will not interpret the phrase “appeared in the action”

so broadly as to eviscerate the appearance requirement of Rule 55(b)(2).

This case, admittedly, presents a different question than whether accepting formalservice of

process constitutes an appearance. Hartford did not accept service of process, but waived it.

Hartford argues that executing a “waiver of service of process” is different from simply accepting

formal service of process because to execute a waiver the defendant must take affirmative action.

We find this distinction untenable. A waiver of service of process operates as a substitute for formal

service of process, allowing the plaintiff to avoid the unnecessary costs of formal service, while
1 We find it irrelevant for purposes of Rule 55(b)(2) that Hartford “never once had the

complaint and summons from which it could determine the forum in which the suit was filed, from

which it could obtain the identity and name of Plaintiff’s counsel, and from which it could determine

the filing deadline and appropriate court for its response.” By executing the waiver, Hartford

forewent formal notice of the suit. If Hartford’s failure to respond constituted excusable neglect, the

district court could have granted relief under Rule 60(b)(1). See PioneerInv. Serv. Co. v. Brunswick

Assoc. Ltd. Partnership, 507 U.S. 380, 393-94, 113 S. Ct. 1489, 1497, 123 L. Ed. 2d 74, __ (1993)

(noting that Rule 60(b)(1) “permits courtsto reopen judgmentsfor reasons of. . . excusable neglect,”

and noting that “excusable neglect is understood to encompass situations in which the failure to

comply with a filing deadline is attributable to negligence”). See Zuelzke Tool & Eng’g Co., Inc. v.

Anderson Die Castings, Inc., 925 F.2d 226, 231 (7th Cir. 1991) (noting that “[i]f. . . a defaulted party

-7-

ensuring that the defendant obtains notice of the suit. See generally 1 MOORE’S FEDERAL PRACTICE

§ 4.10 (3d ed.) (noting that “[t]he waiver option—providing an alternative to the often costly and

time consuming service of process—was added to the Rules in 1993”). Like formal service of

process, a waiver of service of process marks the point in a lawsuit after which the defendant must

answer or risk default. Waiver of service of process does not in any way indicate that a defendant

intends to defend. Thus, like accepting formal service of process, executing a waiver of service of

process does not constitute an appearance for purposes of Rule 55(b)(2).

By executing a waiver of service of process, Hartford did not “appear[] in the action” for

purposes of Rule 55(b)(2). Indeed, none of Hartford’s actions rise to the level of an appearance. In

this case, as Hartford admits, all of the communications between Hartford and Rogers occurred

“[p]rior to the filing of the suit.” See S.J. Groves & Sons, 842 F.2d at 170 (refusing, in case where

defendant waived service of process, to find an appearance for purposes ofRule 55(b)(2) because “all

of the contacts between the parties occurred before the suit was filed”). After Rogers filed his

complaint, Hartford did nothing to respond to Rogers’ suit, or to demonstrate its intent to defend.

Accordingly, we hold that Hartford did not make an appearance such asto bring it within the purview

of Rule 55(b)(2).1
is lulled or induced into inaction by settlement discussions and foregoes filing an appearance and

responsive pleading, relief may be sought on the basis of such conduct under the provisions of Rule

60(b)(1)—without artificial reliance on Rule 55(b)(2)”).

-8-

B

Hartford next argues that the district court abused its discretion in refusing to set aside the

default judgment because Hartford’s failure to respond to Rogers’ complaint constituted excusable

neglect. Although Coleman executed a waiver of service of process, and then forwarded it and the

complaint byAirborne Expressto Hartford’s address ofrecord, Hartford never received the delivery.

Thus, its failure to respond to Rogers’ complaint, Hartford argues, “resulted only from one cause:

the unfortunate failure of a reputable overnight package service to deliver the complaint to it and the

consequent lack of any documents which would have triggered responsive action by Hartford.” In

other words, Hartford explains, its failure to reply to Rogers’ complaint did not result from either

willful or culpable conduct. Hartford contends further that it has a meritorious defense to Rogers’

complaint, that proceeding to trial on the merits would not prejudice Rogers, and that other equitable

factors support setting aside the default judgment.

FederalRule of Civil Procedure 60(b)(1) permitsrelieffrom a default judgment for “mistake,

inadvert ence, surprise, or excusable neglect” on a motion made within one year of the judgment.

FED.R.CIV.P. 60(b)(1). Courts construe Rule 60(b)(1) liberally to ensure that they resolve doubtful

cases on the merits. See Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1459 (5th Cir. 1992)

(“This court applies Rule 60(b) ‘most liberally to judgments in default . . . [because] . . . [t]runcated

proceedings of this sort are not favored.’”) (internal citations omitted). We have directed district

courts to consider three factors in determining whether sufficient grounds exist for setting aside a

default judgment under Rule 60(b)(1): “(1) the extent of prejudice to the plaintiff; (2) the merits of
-9-

the defendant’s asserted defense; and (3) the culpability of [the] defendant’s conduct.” Hibernia

Nat’l Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1280 (5th Cir. 1985); see

also Amberg v. FDIC, 934 F.2d 681, 686 (5th Cir. 1991). These factors are not “talismanic.” See

CJC Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60, 64 (5th Cir. 1992). A district court may

consider other factors, and the decision of whether to grant relief under Rule 60(b)(1) falls within its

sound discretion. See Hibernia, 776 F.2d at 1279.

Asthe district court explained, this case resembles Baez v. S.S. Kresge Co., 518 F.2d 349 (5th

Cir. 1975). In Baez, we affirmed the district court’s refusal to grant relief under Rule 60(b), where

the defendant failed to respond timely to the plaintiff’s complaint because the Postal Service lost the

suit papers and never delivered them to the defendant’s home office. We noted that the defendant’s

registered agent received a summons and complaint, but that the defendant failed to establish

appropriate safeguardsto ensure that the suit papers were forwarded successfully to its home office.

As we explained: “[B]oth Kresge’s registered agent, and its home office possessed the papers in

ample time to prevent its own injury. The Postal Service, therefore, cannot be burdened with the full

blame. We think rather minimal internal procedural safeguards could and should have been

established which would have prevented thisloss.” Id. at 350. Thus, we concluded that because the

defendant’s neglect was at least a partial cause of itsfailure to respond, the defendant had the burden

to convince the court that its neglect was excusable. See id. We then held that, on the facts of the

case, the district court did not abuse its discretion in refusing to set aside the default judgment under

Rule 60(b). See id.

This case also resembles Gibbs v. Air Canada, 810 F.2d 1529 (11th Cir. 1987). In Gibbs, the

plaintiff served Air Canada’s regional manager for the Southeastern United States, who forwarded
-10-

the complaint to itsin-house counselinCanada, via inter-companymail. Air Canada never responded

to the complaint. As the Eleventh Circuit explained:

Air Canada admits that in-house counsel never returned the phone call to him from

the regional manager regarding the complaint and that the regional manager never

followed up to see if the process he put in the mail in fact reached its destination in

Montreal. The only excuse Air Canada offers for the failure of process to reach

Montreal is that a mail clerk must have misplaced the complaint. This is not a

sufficient excuse.

Id. at 1537. The Eleventh Circuit noted that the “minimumproceduralsafeguards” discussed in Baez

“relate to some system of checking up on processto see that it hasin fact reached its destination and

that action is being taken.” Id. It then held that the district court did not abuse its discretion in

refusing to vacate the default judgment. See id.

In this case, Coleman executed a waiver of service of process, accepted the complaint, and

notified Susan Page, the Senior Claims Examiner in Hartford’s claims office inAtlanta, Georgia, that

she had received the suit papers. Coleman also informed Page that she intended to send the papers

to her immediately. Hartford never received the suit papers, but Hartford also never attempted to

obtainanother copyofthe complaint. Thus, although Airborne Express never delivered the complaint

to Hartford, Hartford’s neglect—that is, its failure to establish “minimum internal procedural

safeguards”—was at least a partial cause of its failure to respond. Once Hartford’s registered agent

received the complaint and notified Page, Hartford had a responsibility to ensure that “process . . .

in fact reached its destination and that action [was] being taken.” Id. Hartford, however, did nothing.

On these facts, the district court decided that Hartford’s conduct did not constitute excusable

neglect, and refused to set aside the default judgment. Baez and Gibbs provide strong support for

the district court’s decision, and we will not disturb that decision. The district court did not abuse
2 Mississippi Rule of Civil Procedure 4(c)(5) provides:

Service byCertified Mail on Person Outside State. In addition to service by any other

method provided by thisrule, a summons may be served on a person outside thisstate

by sending a copy of the summons and of the complaint to the person to be served by

certified mail, return receipt requested. Where the defendant is a natural person, the

envelope containing the summons and the complaint shall be marked “restricted

delivery.” Service by this method shall be deemed complete as of the date of delivery

as evidenced by the return receipt or by the returned envelope marked “Refused.”

MISS. R. CIV. P. 4(c)(5).

-11-

its discretion.

III

A

The Plan arguesthat we should set aside the default judgment against it becauseRogersfailed

to effect proper service of process, and therefore, the district court lacked personal jurisdiction. As

the Plan correctly notes, service of process must occur in accordance with Federal Rule of Civil

Procedure 4. Rule 4(e)(1) provides for service “pursuant to the law of the state in which the district

court is located.” FED. R. CIV. P. 4(e). Rogers effected service on the Plan by certified mail to the

Louisiana office of the Plan’s administrator, Entergy Services, Inc., pursuant to Rule 4(c)(5) of the

Mississippi Rules of Civil Procedure. Rule 4(c)(5) provides that a plaintiff may use certified mail to

serve a “person outside th[e] state.” See MISS. R. CIV. P. 4(c)(5).2 The comments to this rule

explain that the “certified mail procedure is not available to serve a person within the state.” The Plan

arguesthat, because it maintains a registered agent forservice of processin Mississippi, it was “within

the state” for service of process purposes. Thus, the Plan reasons that, because it was “within the

state,” the method ofservice described inRule 4(c)(5) was not available to Rogers, and Rogersfailed
3 We note that Mississippi is the only jurisdiction involved in this case that permits

service in the manner conducted by Rogers, and that Rule 4(c)(5) is the only provision of the

Mississippi Rules that permits service by certified mail.

-12-

to effect proper service of process.3

When a district court lacks jurisdiction over a defendant because of improper service of

process, the default judgment is void and must be set aside under Federal Rule of Civil Procedure

60(b)(4). See Leedo Cabinetry v. James Sales & Distrib., Inc., 157 F.3d 410, 412 (5th Cir. 1998).

No Mississippi court has determined whether Rule 4(c)(5) remains an alternative method of service

available to plaintiffs, after a defendant appoints an agent for service of process within the state. We,

therefore, must make an “Erie guess” as to how the Mississippi Supreme Court would decide this

issue. See Farm Credit Bank of Texas v. Guidry, 110 F.3d 1147, 1149 (5th Cir. 1997) (noting that

when state law is silent, we must make an “Erie guess” as to how the state supreme court would

rule). In making an “Erie guess” we may consult a variety of sources, including “dicta in [state]

court decisions, the general rule on the issue, and the rules in other states that [the state] might look

to, as well as treatises and law journals.” State Farm Fire & Cas. Co. v. Fullerton, 118 F.3d 374,

378 (5th Cir. 1997).

We begin by examining the plain language of Rule 4(c)(5). See Russell v. State, 94 So.2d

916, 921 (Miss. 1957) (noting that “the meaning ofstatutesisto be sought and ascertained fromtheir

language”) (citation omitted). The first sentence of the Rule states that “a summons may be served

on a person outside this state by sending a copy of the summons and of the complaint to the person

to be served by certified mail, return receipt requested.” MISS. R. CIV. P. 4(c)(5) (emphasis added).

The Rule then states that “[w]here the defendant is a natural person, the envelope containing the

summons and complaint shall be marked ‘restricted delivery.’” MISS R. CIV. P. 4(c)(5) (emphasis
-13-

added). The Rule, therefore, distinguishes between the “person” that physically receives service, and

the actual “defendant.” The two terms are not synonymous.

Interpreting Rule 4(c)(5) in this way is appropriate, because this interpretation makes Rule

4(c)(5) consistent withRule 4(d). See Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 17 (Miss.

1995) (“When interpreting a statute, ‘[t]he proper way to determine the real intent of the legislature

isto study the words used by it in context.’”) (internal citation omitted). Rule 4(d), which is entitled

“Summons and Complaint: Person to Be Served,” specifically identifies the “person” the plaintiff

must serve with process based on the type of defendant involved in the case. If the defendant is an

“unincorporated association which is subject to suit under a common name,” like the Plan, then the

plaintiff must deliver “a copy of the summons and of the complaint to an officer, a managing or

general agent, or to any other agent authorized by appointment or by law to receive service of

process.” MISS. R. CIV. P. 4(d)(4). Thus, when the defendant is an unincorporated association the

“person” referred to in Rule 4(c)(5) is not the defendant itself, but the agent authorized to receive

service on the defendant’s behalf. Contrary to the Plan’s argument on appeal, it is irrelevant for

purposes of Rule 4(c)(5) whether the defendant itself qualifies as a “person outside th[e] state.” The

Plan’s decision to appoint an agent for service of process in Mississippi is not germane to whether

Rogers effected proper service.

Although no Mississippi court has specifically interpreted Rule 4(c)(5), we find further

support for our interpretation of this Rule in a decision by a court in California. See M. Lowenstein

& Sons, Inc. v. Superior Court, 80 Cal. App. 3d 762, 767-68, 145 Cal. Rptr. 814, 816-17 (Cal. Ct.

App. 1978), overruled on different grounds by Johnson & Johnson v. Superior Court, 38 Cal. 3d

243, 695 P.2d 1058, 211 Cal. Rptr. 517 (Cal. 1985). Section 415.40 of the California Code of Civil
-14-

Procedure provides that “[a] summons may be served on a person outside this state in any manner

provided by this article or by sending a copy of the summons and of the complaint to the person to

be served by first-class mail, postage pre-paid, requiring a return receipt.” CAL. CODE CIV. P. §

415.40 (emphasis added). In M. Lowenstein & Sons, the petitioner sought to quash service of

process, claiming that “service of process was invalid because it had designated an agent for service

within the state.” M. Lowenstein & Sons, 80 Cal. App. 3d at 767, 145 Cal. Rptr. at 816. The

California court rejected this argument, stating:

We conclude that although service of process could properly be made on petitioner’s

designated agent by any of the methods prescribed for service within the state, the

agent was not the only person upon whom service could be made. Among the

statutory alternatives open to [the plaintiff] was that of serving by mail a copy of the

summons and complaint. Section 415.40 expressly so provides.

Id. at 768, 145 Cal. Rptr. at 816-17 (citations omitted). Thus, the California court held that, although

the petitioner had appointed an agent for service of process, the alternative method of service

provided for in section 415.40 remained available to the plaintiff. Id.

This case, along with a plain reading of Rule 4(c)(5), strongly suggeststhat if the Mississippi

Supreme Court faced the issue, it would decide that Rule 4(c)(5) remains an alternative method of

service available to plaintiffs, even though a defendant has appointed an agent for service of process

in the state. Whether the defendant is “outside the state” or, by virtue of having appointed an agent

for service of process in Mississippi, “within the state,” has no bearing on service of process under

Rule 4(c)(5). Thus, we hold that Rule 4(c)(5) remained “among the statutory alternatives open” to

Rogers. Id.

In this case, Rogers effected service on the Plan’s administrator in Louisiana. The Plan’s

administrator was located “outside” the state of Mississippi. Rogers, therefore, complied with the
4 Section 502(d)(1) of ERISA provides:

An employee benefit plan may sue or be sued under this subchapter as an entity.

Service ofsummons, subpoena, or other legal process of a court upon a trustee or an

administrator of an employee benefit plan in his capacity as such shall constitute

service upon the employee benefit plan. In a case where a plan has not designated

in the summary plan description of the plan an individual as an agent forthe service

of legal process, service upon the Secretary shall constituted such service. The

Secretary, not later than 15 days after receipt ofservice under the preceding sentence,

shall notify the administrator or any trustee of the plan of receipt of such service.

29 U.S.C. § 1132(d)(1) (emphasis added).

-15-

service of process requirements of Rule 4(c)(5). 

Moreover, Rogers complied with Rule 4(d). The Summary Plan Description distributed to

Plan members ident ifies the Plan’s administrator as its “agent for service of legal process,” and

provides an address in New Orleans, Louisiana. In accordance with section 502 of ERISA, the Plan

chose to designate its administrator as an agent for legal service of process to avoid having service

of process available through each Secretary of State. See 29 U.S.C. § 1132(d)(1).4 Thus, the Plan’s

administrator constituted an agent authorized to receive service under Rule 4(d)(4).

In short, Rogers effected service of process in accordance with Mississippi’s Rules of Civil

Procedure. The district court, therefore, properly exercised jurisdiction over the Plan. Accordingly,

we will not set aside the default judgment under Rule 60(b)(4).

B

The Plan also contendsthat we should set aside the default judgment because Rogers brought

this action in a venue not proper under ERISA. As the district court stated, this contention is

“patently without merit.” Rogers, 178 F.R.D. at 481. The Supreme Court has made clear that if a

party defaults by failing to appear or file a timely responsive pleading, the party waives defects in

venue. See, e.g., Hoffman v. Blaski, 363 U.S. 335, 343, 80 S. Ct. 1084, 1089, 4 L. Ed. 2d 1254, __
5 Commercial Casualty, decided in 1929, pre-datesthe enactment of the FederalRules

of Civil Procedure. The Court decided Hoffman in 1960, six years before Congress amended Rule

12(h) to read as it does today.

6 Rule 12(h)(1) provides:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of

process, or insufficiency ofservice of process is waived (A) if omitted from a motion

in the circumstances described in subdivision (g), or (B) ifit is neither made bymotion

under this rule nor included in a responsive pleading or an amendment thereof

permitted by Rule15(a) to be made as a matter of course.

FED. R. CIV. P. 12(h)(1).

-16-

(1960) (“A defendant, properly served with process by a court having subject matter jurisdiction,

waives venue by failing seasonably to assert it, or even simply by making default.”); Commercial

Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 180, 49 S. Ct. 98, 99, 73 L. Ed. 2d 252,

__ (1929).

The Plan argues, however, that the Supreme Court’s decisions in Hoffman and Commercial

Casualty do not control the resolution of this case, because both decisions pre-date the enactment

of Rule 12(h).5 According to the Plan, Rule 12(h) “expressly requires an appearance in an action”

before a party can waive a personal defense, such as venue. See FED.R.CIV.P. 12(h)(1).6 In support

of its argument, the Plan relies on our decision in Broadcast Music, Inc. v. M.T.S. Enter., Inc., 811

F.2d 278 (5th Cir. 1987). In that case, we held that because the defendants made a voluntary

appearance, and because they failed to object to personal jurisdiction, the district court did not abuse

its discretion in denying the defendants’ motion for relief from default judgment.

We note that Rule 12 applies onlywhen the defendant makes an appearance. If the defendant

appears, but fails to assert certain personal defenses, then under Rule 12(h) we consider these

defenses waived. Rule 12(h), however, does not address the universe of situations in which a waiver

of venue may occur. Hoffman and Commercial Casualty remain binding precedent: a defendant in
7 Our conclusion that the Plan waived any objection to venue, makesit unnecessary for

us to consider whether venue was proper.

-17-

default waives any objection to venue. See Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th

Cir. 1986) (“[I]f a party is in default by failing to appear . . . defects in venue are waived, a default

judgment may be validly entered and the judgment cannot be attacked collaterally for improper

venue.”); 15 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION §

3829 (2d ed. 1986) (“Venue is waived by a defendant who defaults”). Our decision in Broadcast

Music does not change this conclusion. Thus, we hold that the Plan waived any objections to venue

by failing to respond timely to Rogers’ complaint.7 The district court did not abuse its discretion in

refusing to set aside, for reasons of improper venue, the default judgment.

C

Finally, the Plan argues, like Hartford, that itsfailure to respond timely to Rogers’ complaint

is attributable to excusable neglect. See FED. R. CIV. P. 60(b)(1). According to the Plan, “a finding

of a willful failure to timely respond is necessary to deny a Rul e 60(b)(1) motion.” It argues that

while its conduct was “culpable,” it did not “willfully” fail to respond timely to Rogers’ complaint.

The Plan states that it had adopted “procedures designed to ensure that legal process [was] brought

to the attention of the correct person,” but that it did not respond timely because the complaint and

summons were mistaken for an “internal claim file[].” As John D. Fricke, assistant general counsel

for Entergy Services, Inc., explained in an affidavit:

Although the Plan Administrator properly forwarded plaintiff’s summons and

complaint, along with the internalBenefits Department file to the Legal Department,

the documents contained in the internal Benefits Department file were on top of the

complaint and summons when the file folder was transmitted to the Legal

Department. Staff personnel opened the materials, but the fact that a summons and

complaint were included therein was not readily apparent because the complaint and
-18-

summons were beneath the claim documentation. The materials were mistaken as an

internal appellate file, which was pending resolution by Hartford.

Rogers, 178 F.R.D. at 482. According to the Plan, although it is not “free of fault in failing to

discover the complaint,” its conduct does not rise to the level of culpability or willfulnessthat “should

prevent a court from setting aside the default judgment.” Moreover, the Plan argues that, contrary

to the district court’s opinion, it presented meritorious defenses to Rogers’ claims. Thus, the Plan

asks us to reverse the district court’s decision not to set aside the default judgment.

We note first that the Plan misconstrues the law with respect to Rule 60(b)(1): we do not

require the district court to find a “willful” failure to respond in order to deny a Rule 60(b)(1) motion.

Contrary to the Plan’s position on appeal, the district court properly focused on whether the Plan

acted culpably and not on whether it acted willfully. See CJC Holdings, 979 F.2d at 64 (noting that

a focus on neglect or culpable conduct is more consistent with Rule 60(b) than a focus on

willfulness). Second, as the district court held and as the facts show, the Plan failed to respond to

Rogers’ complaint because it carelesslymistook the summons and complaint for an internal appellate

file. The Plan simply overlooked the relevant papers. See Baez, 518 F.2d at 350 (“We think rather

minimal internal procedural safeguards could and should have been established which would have

prevented this loss.”); see also Ben Sager Chem. Int’l, Inc. v. E. Targosz & Co., 560 F.2d 805, 809

(7th Cir. 1977) (“Neither ignorance nor carelessness on the part of a litigant or his attorney provide

grounds for relief under Rule 60(b)(1)”); Insurance Co. of North America v. S/S Hellenic

Challenger, 88 F.R.D. 545, 548 (S.D.N.Y. 1980) (“The adjuster’s loss of the summons and the

complaint is a mistake in the ordinary course of the internal operations of defendant’s business and

thus does not merit remedial relief pursuant to Rule 60(b)(1).”). For these reasons, we hold that the
8 Both Hartford and t he Plan argue that Rogers failed to assert his ERISA claim for

medical benefits before the district court, and therefore, cannot raise this argument for the first time

on appeal. Our review of the record, however, shows that Rogers’ argument on this issue before the

district court was sufficient to permit the district court to rule on it. Cf. FDIC v. Mijalis, 15 F.3d

1314, 1327 (5th Cir. 1994)(“[I]f a litigant desiresto preserve an argument for appeal, the litigant must

press and not merely intimate the argument during the proceedings before the district court. If an

argument is not raised to such a degree that the district court has an opportunity to rule on it, we will

not address it on appeal.”). Accordingly, we consider the merits of Rogers’ cross-appeal.

-19-

district court did not abuse its discretion in refusing to grant relief under Rule 60(b). 

IV

On cross-appeal, Rogers argues that the district court erroneously set aside the award for

medical expenses.8 He argues that, although our prior cases state that neither punitive damages nor

mental anguish damages are recoverable under ERISA, our decision in Corcoran v. United

Healthcare, Inc., “left the door open to awarding such actualdamages as are necessary to restore Mr.

Rogers to the condition which he should have occupied.” See Corcoran v. United Healthcare, Inc.,

965 F.2d 1321 (5th Cir. 1992). Thus, according to Rogers, he is entitled to extra-contractual relief,

in the form of medical expenses, in order to “make him whole.”

Section 502(a)(3) of ERISA provides that a plaintiff may bring an action to recover “other

appropriate equitable relief.” 29 U.S.C. § 1132(a)(3)(B). We have held consistently that, despite this

provision, ERISA does not permit generally the recovery of extra-contractual damages. See Weir

v. Federal Asset Disposition Ass’n, 123 F.3d 281, 290 (5th Cir. 1997) (affirming district court’s

dismissal of appellants’ claims for compensatory and punitive damages under section 502(a)(3) of

ERISA); see also Medina v. Athem Life Ins. Co., 983 F.2d 29, 32 (5th Cir. 1993) (holding that

section 502(a)(1)(B) does not allow the recovery of extra-contractual damages, and noting that “the

statutory enforcementschemeCongress crafted for ERISA in section 502(a) did not include a private
-20-

remedy for extracontractual and punitive damages”). As Rogers suggests, however, in Corcoran,

we assumed without deciding, that the “other appropriate equitable relief” provided for in section

502(a)(3) encompassed “damages necessary to make the plaintiff whole.” Corcoran, 965 F.3d at

1335. In Corcoran we explained in some detail the reasonableness of interpreting ERISA to permit

the recovery of “make-whole relief.” We held, however, that even if ERISA did permit the recovery

ofsuch relief, the appellant in Corcoran could not recover for emotional distress and mental anguish

damages.

Although our decision in Corcoran may have “left the door open” to the possibility of

recovering certain extra-contractualdamages necessaryto make a plaintiffwhole, the SupremeCourt

firmly closed this door in Mertens v. Hewitt Assoc., 508 U.S. 248, 113 S. Ct. 2063, 124 L. Ed. 2d

161 (1993). In Mertens, the Supreme Court rejected the petitioners’ arguments that ERISA

permitted a remedy calculated to make themwhole, holding that ERISAdoes not permit the recovery

of compensatory damages. As the Supreme Court stated:

Petitioners maintain that the object of their suit is “appropriate equitable relief” under

§ 502(a)(3). . . . They do not, however, seek a remedy traditionally viewed as

“equitable,” such as injunction or restitution. . . . Although they often dance around

the word, what petitioners in fact seek is nothing more than compensatory

damages—monetary relief for all losses their plan sustained as a result of the alleged

breach of fiduciary duties. Money damages are, of course, the classic form of legal

relief. . . . And though we have never interpreted the precise phrase “other appropriate

equitable relief,” we have construed similar language of Title VII of the Civil Rights

Act of 1964 . . . to preclude “awards for compensatory or punitive damages.”

Id. at 255, 113 S. Ct. at 2068 (internal citations omitted). Thus, compensatory damages, whether

extra-contractual or not, are not recoverable under ERISA.

We conclude that Mertens controls our resolution of Rogers’ cross-appeal. Rogers may not

recover medical expenses under ERISA. Accordingly, the district court properly vacated this portion
-21-

of the default judgment.

V

For the foregoing reasons, we AFFIRM the district court.