Laura Wilson v. Moore and Associates, Inc., Dba Uni-Check, Fdba Telecheck Hawaii, a Hawaii Corporation

This appeal is from an Order of the District Court, denying a motion to set aside a default judgment. We affirm.

The plaintiff filed a complaint alleging a claim under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-16811 On the date of service of the complaint, Moore, the president of the defendant corporation, wrote the following letter to plaintiff’s counsel:

Moore sent a copy of this letter to the Clerk of the District Court of Hawaii. 1

On the following day, plaintiff’s counsel responded to Moore’s letter, writing:

Within a week, Moore wrote this reply:

Plaintiff’s counsel acknowledged receipt of Moore’s second communication and reiterated her previous warning that an attorney *368 be secured and a timely answer filed in order to avoid default.

Although the defendant had an attorney representing its interests in other litigation at about this time, the defendant failed to heed the advice of plaintiff’s counsel, whereupon the plaintiff formally secured a default judgment. The day after receiving a summons of garnishment, the defendant, through counsel, moved to set aside the default judgment and to quash the summons. Fed.R.Civ.P. 60(b). At the hearing on the motion, the…

dissenting:

With respect, I dissent. I conclude reluctantly that there was an abuse of the district court’s discretion.

I would hold that sending a copy of the reply letter to the court clerk was a “presentation or submission to the court” sufficient to constitute an appearance for purposes of F.R.Civ.P. 55. 10 C. Wright & A. Miller, Federal Practice and Procedure § 2686 (1973). Furthermore, it is undenied that Moore also telephoned the court clerk and was told that no action on the complaint was pending before the court and that he would be notified of any change. These actions clearly displayed Moore’s intention to defend and should have triggered Rule 55(b)(2)’s three-day notice requirement. Annot., 27 A.L.R.Fed. 620, 624-25 (1976). 1 See, e. g., H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 139 U.S.App.D.C. 256 , 432 F.2d 689 (1976).

I do not share the majority’s fear that reversal here would compel district courts to vacate default judgments whenever a defendant communicates with the plaintiff after service of the complaint. The facts of this case show more than a minimal response. The letter-answer that defendant sent to the plaintiff’s attorney — and filed…

564 F.2d 366 Laura WILSON, Plaintiff-Appellee, v. MOORE AND ASSOCIATES, INC., dba Uni-Check, fdba Telecheck Hawaii, a Hawaii Corporation, Defendant-Appellant. No. 76-3166. United States Court of Appeals, Ninth Circuit. Nov. 11, 1977. Rehearing and Rehearing En Banc Denied Dec. 23, 1977. Peter G. Wheelon (argued), Honolulu, Hawaii, for defendant-appellant. Richard S. Kanter (argued), John Harris Paer, on the brief, Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before ELY, HUFSTEDLER, and WRIGHT, Circuit Judges. ELY, Circuit Judge: 1 This appeal is from an Order of the District Court, denying a motion to set aside a default judgment. We affirm. 2 The plaintiff filed a complaint alleging a claim under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 -1681t. On the date of service of the complaint, Moore, the president of the defendant corporation, wrote the following letter to plaintiff's counsel: 3 "In answer to the above captioned summons and complaint issued by your office on behalf of a person who may be Laura Wilson, please be advised of the reasons why Ms. Wilson, if this is her true name, is denied…