UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-60814

____________

GLYNN W. ROGERS,

Plaintiff-Appellee-Cross-Appellant,

versus

HARTFORD LIFE A ND ACCIDENT INSURANCE COMPANY;

ENTERGY CORPORATION COMPANIES B ENEFITS 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

Corporati on Companies Benefits Plus Long Term Disabilit y Plan (the “Plan”), appeal the district

court’s denial

o f t heir mo t io ns 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 of Entergy Corporati on, sought long-term disabilit y benefits from

the Plan. Hartford insured the long-term disability portion of the Plan. Hartford denied Rogers longter m 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 unde rt o o k t o serve the Plan with process by sending a copy of the summons and

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

Louisiana. Wi

th respect to Hartford, Rogers requested that Hartford’s agent for process i n

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 t imely answered Rogers’ complaint. On Rogers’ request, the

dis t rict co urt clerk filed an entry of default. Following a hearing, the district court then entered a

default judgment against both Hartford and the Plan, awarding Rogers expenses for disabilit y benefits,

medical benefits, prejudgment interest, and attorney’s fees. 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 porti on of t he 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 judgm ent 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 Federal Rule of Civil Procedure 55(b)(2) it was entitled to three days

no t ice prior to the entry of a default judgment. Hartford never received notice. Additionally, it

argues that its failure to respond t imely to Rogers’ complaint constituted excusable neglect, and that

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

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

ent er t he 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 argues that the district court erroneously set aside that porti on of

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

medical expenses is 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. S ee Lindsey v. Prive Corp.

, No. 97-10651, 1998 WL 820241, at *4 (5 th Cir. Nov.

24, 1998); S un Bank of Ocala v. Peli can Homestead & Sav. Ass’n , 874 F.2d 274, 276 (5 t h Cir.

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

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

of social goals, justice and expediency, a weighing process [that] lies largely within the domain of the

trial judge’s discretion.’” P elican Prod. Co rp. v. Marino , 893 F.2d 1143, 1146 (10 t h Cir.

1 990)(quoting Gomes v. Williams

, 420 F.2d 1364, 1366 (10 th Cir. 1970)); s ee also Dolphin

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

1975)(“The decision whether to set aside a default judgment is left to the sound discretion of the 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 (5 th Cir. 1992).

A

Hartford argues that 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 actio n , t he party (or, if appearing by

representative, the party’s representative) shall be served with written notice of the application at least

3 days prior to the hearing on such application.” I d. (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 con s trued 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

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

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

55(b) (2)’s no t ice 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 plaint iff’s-5-

formal Court action.” B aez v. Kresge Co.

, 518 F.2d 349, 350 (5 th Cir. 1975); see also Sun Bank

,

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

which are responsive to plaint iff’s formal action in court, and which may be regarded as sufficient to

give plaint iff a clear indication of defendant’s intention to contest the claim’”) (quoting 6 M OORE ’ S

F EDERAL P RACTICE § 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

pro cess 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 Ha rt fo rd 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. S ee F ED

. R. C IV

. P. 4(m) (requiring dismissal of a case in which the plaint iff

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

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

answer the complaint and the plaint iff cannot obtain a default judgment. S ee Broadcast Music, Inc.

v. M.T.S. Enter., Inc.

, 811 F.2d 278, 282 (5 th Cir. 1987) (“No person need defend an action nor suffer

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

court.”). Once the plaint iff effect s service of process, however, Rule 12 is triggered and then the-6-

defendant must answer the complaint or risk default. See F ED R. C IV

. P. 12 (requiring a defendant

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

complaint within sixty days of the date that the plaint iff sent 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 limit ed circumstances. S ee North Cent. Il linois Laborer’s

Dist. Council v. S.J. Groves & Sons Co. Inc

, 842 F.2d 164, 169 (7 th 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 formal service of

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

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

formal service of process because to execute a waiver the defendant must tak e affirmat ive action.

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

service of process, allowing the plaint iff to avoid the unnecessary costs of formal ser vice, while1 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 Plaint iff’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). S ee Pioneer Inv. 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 courts to reopen judgments for 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 (7 th Cir. 1991) (noting that “[i]f

. . . a defaulted party

-7- ensuring that the defendant obtains notice of the suit. S ee generally 1 M OORE ’ S F EDERAL P RACTICE

§ 4.10 (3d ed.) (noting that “[t]he waiver option—providing an alternative to t he 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 pro cess, 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 t he 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 of Rule 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 as to bring it within the purview

of Rule 55(b)(2). 1is 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 by Airborne Express to Hartford’s address of record, 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 fr om 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.

Federal Rule of Civil Procedure 60(b)(1) permits relief from a default judgment for “mistake,

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

.

F ED

. R. C IV

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

cases on the merits. S ee Harrell v. DCS Equip. Leasing Corp.

, 951 F.2d 1453, 1459 (5 th Cir. 1992)

(“This court applies Rule 60(b) ‘most liberally to judgments in default

. . . [because]

. . . [t]runcated

proceedings of this sort ar e no t favo red.’”) (internal citations omitted). We have directed district

courts to consider three factors in determining whether sufficient grou nds 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 culpabilit y o f [the] defendant’s conduct.” H ibernia

Nat’l Bank v. Administracion Central Sociedad Anonima

, 776 F.2d 1277, 1280 (5 th Cir. 1985); s ee

also Amberg v. FDIC

, 934 F.2d 681, 686 (5 th Cir. 1991). These factors are not “talismanic.” S ee

CJC Holdings, Inc. v. Wright & Lato, Inc. , 979 F.2d 60, 64 (5 t h 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.

As the district court explained, this case resembles Baez v. S.S. Kresge Co.

, 518 F.2d 349 (5 th

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

the defendant failed to respond t imely to the plaint iff’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 t he defendant failed to establish

appropriate safeguards to 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 sho uld have been

established which would have prevented this loss.” I d. at 350. Thus, we concluded that because the

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

to convince the court that its neglect was excusable. S ee 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 (11 th Cir. 1987). In G ibbs

, the

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

the complaint to its in-house counsel in Canada, via inter-company mail. 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 tha t t he regional manager never

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

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

Montr e al is that a mail clerk must have misplaced the complaint. This is not a

sufficient excuse.

Id. at 1537. T he Eleventh Circuit noted that the “minimum procedural safeguards” discussed in Baez

“relate to some system of checking up on process to see that it has in fact reached its destination and

that action is being taken.” I d. 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 in Atlanta, Georgia, that

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

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

obtain another copy of the complaint. Thus, although Airborne Express never delivered the complaint

to Hartf o rd, 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.” I d. 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 abuse2 Mississippi Rule of Civil Procedure 4(c)(5) provides:

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

method provided by this rule, 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. Where the defendant is a natural person, the

envelope containing the summons and the complaint shall be marked “restr icted

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.”

M ISS

. R. C IV

. P. 4(c)(5).

-11- its discretion.

III

A

The Plan argues that we should set aside the default judgment against it because Rogers failed

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

t he Plan correctly notes, service of process must occur in accordance with Federal Ru le 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.” F ED

. R. C IV

. 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.” S ee M ISS

. R. C IV

. 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

argues that, because it maintains a registered agent for service of process in Mississippi, it was “within

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

state,” the method of service described in Rule 4(c)(5) was not available to Rogers, and Rogers failed3 We note that Mississippi is the only jurisdict io n 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 bec ause of improper service of

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

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

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

available to plaint iffs, 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 (5 th 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 co nsult 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.” S tate Farm Fire & Cas. Co. v. Fullerton , 118 F.3d 374,

378 (5 th Cir. 1997).

We begin by examining the plain language of R ule 4(c)(5). S ee Russell v. State

, 94 So.2d

916, 921 (Miss. 1957) (noting that “the meaning of statutes is to be sought and ascertained from their

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.” M I SS

. R. C IV

. P. 4(c)(5) (emphasis added).

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

summons a nd complaint shall be marked ‘restricted delivery.’” M I SS R. C IV

. 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 with Rule 4(d). S ee 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

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

“Summo ns 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

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

general agent, or to any other agent auth o rized by appointment or by law to receive service of

process.” M I SS

. R. C IV

. 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

ser vice 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 M ississippi 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. S ee M. Low enstein

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

App. 1978)

, overruled on differ ent 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

b e served by first-class mail, postage pre-paid, requiring a return receipt.” C A L

. C ODE C IV

. P. §

415.40 (emphasis added). In M

. Low enstein & 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

. Lowen stein & 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 an y o f t he methods prescribed for service within the state, the

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

statutory alternatives open to [the plaint iff] 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 ser vice 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 suggests that if the Mississippi

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

service available to plaint iffs, 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 t his 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 the4 Section 502(d)(1) of ERISA provides:

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

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

administrator of an emp lo yee benefit plan in his capacity as such shall constitute

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

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

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

Secretary, not later than 15 days after receipt of service 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 membe rs 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. S ee 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 contends that 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 t imely responsive pleading, the party waives defects i n

venue. S ee, 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-dates the enactment of the Federal Rules

of Civil Procedure. The Court decided H offman 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 ve nue, insufficiency of

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

in the circumstances described in subdivision (g), or (B) if it is neither made by motion

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.

F ED

. R. C IV

. P. 12(h)(1).

-16- (1960) (“A defendant, properly served with process by a court hav ing 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. S ee F ED

. R. C IV

. 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 (5 th 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 only when 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. H

offman and Commercial Casualty remain binding precedent: a defendant in7 Our conclusion that the Plan waived any objection to venue, makes it unnecessary for

us to consider whether venue was proper.

-17- default waives any objection to venue. S ee Williams v. Life Sav. & Loan

, 802 F.2d 1200, 1202 (10 th

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 judgme nt cannot be attacked collaterally for improper

venue.”); 15 W R IGHT

, M ILLER & C OOPER

, F EDERAL P RACTICE A ND P ROCEDURE : J URISDICTION §

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 t imely 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 its failure to respond t imely to Rogers’ complaint

is attributable to excusable neglect. S ee F ED

. R. C IV

. P. 60(b)(1). According to the Plan, “a finding

of a willful failure to t imely respond is nec essary to deny a Rul e 60(b)(1) m oti on.” 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 t imely 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 plaint iff’s summons and

complaint, along with the internal Benefits Department file to the Legal Department,

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

co mplaint 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 t he 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 willfulness that “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 Pl an

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

a focus on neglec t o r 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 carelessly mistook the summons and complaint for an internal appellate

file. The Plan simply overlooked the relevant papers. S ee Baez

, 518 F.2d at 350 (“We think rather

minimal int ernal procedural safeguards could and should have been established which would have

prevented this loss.”); s ee also Ben Sager Chem. Int’l, Inc. v. E. Targosz & Co.

, 560 F.2d 805, 809

(7 th 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

Challenge r

, 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 the8 Both Hartfor d 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. C f. FDIC v. Mijalis, 15 F.3d

1314, 1327 (5 th Cir. 1994)(“[I]f a litigant desires to 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 opportuni ty 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 as ide the award for

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

m ent al anguish damages are recoverable under ERISA, our decision in C orcoran v. United

Healthcare, Inc.

, “left the door open to awarding such actual damages as are necessary to restore Mr.

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

,

965 F.2d 1321 (5 th 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 plaint iff 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. S ee Weir

v. Federal Asset Dispositi on Ass’n , 123 F.3d 281, 290 (5 t h Cir. 1997) (affirming district court’s

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

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

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

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

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

,

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

502(a)(3) encompassed “damages necessary to ma ke t he plaintiff whole.” C orcoran

, 965 F.3d at

1335. In C

orcoran 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

of such 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-contractual damages necessary to make a plaint iff whole, the Supreme Court

firmly closed this door in Mertens v. Hewitt Assoc.

, 508 U.S. 248, 113 S. Ct. 2063, 124 L. Ed. 2d

161 (1993). In M

ertens

, the Supreme Court reje ct ed the petitioners’ arguments that ERISA

permitted a remedy calculated to make them whole, holding that ERISA does 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 re m edy 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.