Miser v. Freight Logistics, Inc.

Filing 29

MEMORANDUM AND ORDER: Relief under Rule 60(b)(1) is not warranted, and Defendant's motion is DENIED 25 . Signed by District Judge John W. Broomes on November 22, 2024. (mls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHELLE MISER,
Plaintiff,
v.

Case No. 23-1265-JWB

FREIGHT LOGISTICS, INC.,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motion to set aside the default judgment.
(Doc. 25.) The motion is fully briefed and ripe for decision. (Docs. 25, 26, 28.) The motion is
DENIED for the reasons stated herein.
I.

Facts and Procedural History1
Plaintiff worked as a truck driver for Defendant. Defendant is a trucking company that

was incorporated in Kansas and has its principal place of business there as well.
In the spring of 2022, Plaintiff became concerned she had an irregular heartbeat and
scheduled an appointment with her primary care doctor. Her primary care doctor referred her to a
cardiac specialist, and her first appointment was scheduled on or around June 9, 2022. Plaintiff
was scheduled to deliver freight for Defendant on or around June 14, 2022. Plaintiff successfully
delivered the freight, and she dropped her unloaded truck at a truck stop in Nevada, Missouri. This
was a planned drop, as Plaintiff would leave her truck and the trailer at the truck stop until her next
scheduled delivery.

1

The background facts set forth herein are from the courts order on Plaintiff’s motion for default judgment. (Doc. 8.)

1

However, on June 15, 2022, Plaintiff’s cardiologist informed her that it would be medically
unsafe for her to work until she received further evaluation at Mercy Cardiology. The cardiologist
informed her of this prognosis by sending a note. Plaintiff followed Defendant’s protocol by
informing the dispatcher that she was leaving the truck, as she could not safely drive with her
medical condition. Plaintiff also informed Defendant about her medical status; she gave Defendant
her doctor’s note and told Defendant that she would provide regular updates on when she could
return to work. Defendant sent a driver to pick up Plaintiff’s truck.
Plaintiff was diagnosed with arrythmia and a slight murmur. In August of 2022, she
underwent a cardiac procedure that successfully resolved these issues. Plaintiff was cleared to
work around the end of November 2022. However, when she contacted Defendant about being
cleared to work again, Defendant informed her that she would have to re-apply for the position
because she had been out-of-work for more than 30 days. Plaintiff reapplied and was informed
she was ineligible for the position because she had abandoned her truck in June. Additionally,
Defendant reported that Plaintiff abandoned her truck while working for Defendant on her DriveA-Check Report (“DAC”).2
On the basis of these facts, Plaintiff brought two claims for wrongful termination under the
Americans with Disabilities Act (“ADA”) and one claim for defamation under Kansas state law
against Defendant.
Prior to filing her complaint, she exhausted her administrative remedies by filing a Charge
of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on March 24,
2023. (Doc. 26-1 ¶ 3.) Plaintiff, through her attorneys, informed Defendant that she had filed a
discrimination claim with the EEOC on March 24 or shortly thereafter. (See id.) On April 4, 2023,

2

A DAC has information about a truck driver’s employment history. It is common in the trucking industry, and
trucking companies routinely check these reports when drivers apply for jobs.

2

an employee of Defendant, Daniel Bui, emailed Plaintiff’s counsel to arrange a time to discuss
“resolution options” for Plaintiff’s case. (See id. ¶ 4, p. 4.) Plaintiff’s counsel spoke to Mr. Bui on
the phone, and on April 12, sent him a follow-up email about their phone conversation. (Id.)
Plaintiff’s counsel never received a response from Mr. Bui. (Id.) On September 18, counsel for
Plaintiff requested a Notice of Right to Sue from the EEOC and received it on September 24, 2023.
(Id. ¶ 5.) The EEOC also sent Plaintiff’s Notice of Right to Sue to Defendant. (Doc. 26-1 at 6.)
Plaintiff filed her Complaint (Doc. 1) on December 14, 2023. Defendant was personally
served the summons on December 28, 2023. (Doc. 3.) Defendant’s Human Resources employee,
Candy VanSteenburg accepted the summons. (Id.) However, she did not open the papers, but
rather, passed them along to the owner of Defendant, Dave Gaggero. (Doc. 25-1 at 2.) The
summons informed Defendant that it had 21 days to respond to Plaintiff’s complaint. (Doc. 3 at
2.) Defendant did not respond to Plaintiff’s complaint. However, Mr. Gaggero asserts that 15
days after Ms. VanSteenburg received the summons (on January 12, 2024) he called and left a
voicemail for an attorney. (Doc. 25-1 ¶ 4.) Three days later on January 15, he called the attorney
again—only to learn that he was out of the office. (Id.)
A week after the deadline to respond had passed, on January 25, Plaintiff filed an
Application for Entry of Default and a Motion for Default Judgment. (Doc. 26-1 ¶ 7.) On February
2, Plaintiff’s counsel sent Defendant—via certified mail—a copy of the Application for Entry of
Default and the Motion for Default Judgment. (Id. ¶ 8.) Defendant received both items because
the certified mail receipt was returned to Plaintiff’s counsel on February 8 and was signed by Ms.
VanSteenburg. (Doc. 26-1 ¶ 8.) After Plaintiff’s counsel mailed the Application for Entry of
Default and the Motion for Default Judgment, but before Defendant received them, Mr. Gaggero
contacted a second attorney (“attorney #2”) on February 5. (Doc. 25-1 ¶ 5.) At the time Mr.

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Gaggero contacted attorney #2, he claims to have been unaware that the deadline to respond to
Plaintiff’s complaint had passed. (Id.) He allegedly provided a file to attorney #2 that contained
Plaintiff’s complaint and all of the documentation related to her employment with Defendant. (Id.)
Four days later, on February 9, he reached out to attorney #2 to learn if he had reviewed the
material. (Id. ¶ 6.) The attorney allegedly responded “yes.” (Id.) Mr. Gaggero then provided him
a summary of the facts of the case. (Id.) There is no indication that attorney #2 responded to Mr.
Gaggero’s summary.

Nonetheless, Mr. Gaggero allegedly believed that after these brief

communication with attorney #2, he would take the necessary steps to defend Defendant in
Plaintiff’s lawsuit. (Id.)
Plaintiff reached out to Defendant’s employee, Mr. Bui, on March 7, inquiring into whether
Defendant would be participating in the case. (Doc. 26-1. ¶ 9, p. 10.) Meanwhile, Mr. Gaggero
emailed attorney #2 on March 4 and 7. (Doc. 25-1 ¶ 7.) On March 11, attorney #2 informed Mr.
Gaggero that he was too busy to represent Defendant. (Id.) Mr. Gaggero understood this to mean
that moving forward, attorney #2 could no longer represent Defendant. (Id.) Throughout March
and April, he tried to find a different attorney. (Id. ¶ 8.)
The court granted Plaintiff default judgment on March 25, 2024. (Doc. 8.) The damages
hearing occurred on April 29, 2024. (Doc. 13 at 1.) The court awarded Plaintiff $129,846.73 in
damages and awarded her attorney’s fees and costs. (Doc. 13 at 9.) Judgment was entered on May
17, 2024. (Doc. 13.) Following the court’s final judgment, Plaintiff’s counsel requested four writs
of garnishment on entities they believed held assets that belonged to Defendant. (Doc. 26-1 ¶ 10.)
Plaintiff’s counsel also requested that the court serve Defendant with the Notice of Garnishments.
(Id. ¶ 11.) Again, Defendant received the Notice of Garnishments, as Ms. VanSteenburg signed
for them (Id. at 11)

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However, Mr. Gaggero claims that the first time he learned about the garnishments was on
June 25, 2024, when clients informed him that Defendant’s accounts with them were being
garnished. (Doc. 25-1 ¶ 9.) Two days after Mr. Gaggero learned about the garnishments, he hired
his current counsel, a Kansas City law firm, to represent Defendant. (Id. ¶ 10.) Defendant has
now moved to set aside the default judgment on the basis that its conduct in failing to appear is
excusable neglect3 under Rule 60(b)(1).
II.

Standard
Default judgment and the threat thereof “serves as an incentive to” participate in

adjudicatory matters. See Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d
1442, 1445 (10th Cir. 1983). Parties and their attorneys need to know that they are not “free to
appear at their pleasure,” and that they are held “to a reasonably high standard of diligence in
observing the courts' rules of procedure.” Id.
Under Rule 60(b)(1), the trial court has the discretion to set aside a final order of default
judgment if the party’s failure to participate was a result of mistake, inadvertence, or excusable
neglect. See Fed. R. Civ. P. 60(b)(1); see Cessna Fin. Corp., 715 F.2d at 1445; see Thompson v.
Kerr-McGee Ref. Corp., 660 F.2d 1380, 1385 (10th Cir. 1981). In these matters, the movant bears
the burden of demonstrating that a default judgment should be set aside. See Greenwood Expls.,
Ltd. v. Merit Gas & Oil Corp., 837 F.2d 423, 426 (10th Cir. 1988). And although setting aside a
final judgment is an extraordinary procedure that should be used sparingly, courts are encouraged

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Defendant’s pleadings focus on excusable neglect rather than mistake or inadvertence. In the motion to set aside
judgment (Doc. 25), Defendant cites two cases wherein the court held that movant’s failure to participate constituted
excusable neglect. (Id. at 6, 7.) Indeed, Defendant begins its argument by identifying the excusable neglect factors.
(Id. at 5.) Hence, Defendant’s justification for setting aside the judgment is excusable neglect. The court provides this
clarification because Defendant also states in his motion: “Defendant’s failure to respond was due to mistake,
inadvertence, and/or excusable neglect.” (Id. at 7.) This appears to be a bare recitation of Rule 60(b)(1), as the
substance of Defendant’s motion focuses on excusable neglect. Indeed, Defendant’s reply briefing focuses on
excusable neglect and asserts that it “established sound cause for a finding of excusable neglect.” (Doc. 28 at 3.)

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to liberally construe 60(b)(1) motions to ensure a case is decided on the merits. See Greenwood
Expls., Ltd. v. Merit Gas & Oil Corp., 837 F.2d 423, 426 (10th Cir. 1988).
To determine if a party’s failure to participate constitutes excusable neglect, the following
factors are considered: “danger of prejudice to the [opposing party], the length of delay and its
potential impact on judicial proceedings, the reason for the delay, including whether it was within
the reasonable control of the movant, and whether the movant acted in good faith.” Jennings v.
Rivers, 394 F.3d 850, 856 (10th Cir. 2005) (citation omitted). If a party establishes that its failure
to participate amounts to excusable neglect, then it must also “demonstrate the existence of a
meritorious defense.” In re Stone, 588 F.2d 1316, 1319 (10th Cir. 1978).
III.

Analysis
Defendant, acknowledging that a Rule 60(b)(1) motion is an extraordinary remedy, argues

that in this case, it is an appropriate remedy because its failure to participate is excusable neglect,
and that the proper course of action would be to allow the case to be decided on the merits because
it has meritorious defenses to Plaintiff’s claims. Plaintiff argues to the contrary, alleging (1)
Defendant’s conduct does not amount to excusable neglect, and (2) that its defenses are not
meritorious.
The court will first analyze the Jennings’ factors to determine if Defendant’s neglect is
excusable. If it is, then the court will assess Defendant’s defenses to Plaintiff’s claims.
A. Prejudice
Plaintiff argues that she will be prejudiced if the court grants Defendant’s motion to set
aside judgment. (Doc. 26 at 9.) She argues that excusing Defendant’s failure to participate will
force discovery into 2025 and push the trial date back even further. (See id.) Had Defendant
timely responded and followed the court’s timeline, Plaintiff claims that discovery would most

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likely be complete or nearly so. Additionally, Plaintiff claims she has incurred thousands of dollars
in attorney’s fees and costs because Defendant did not participate in the proceedings. Defendant
does not address this factor in its motion to set aside the default judgment, nor does it respond to
Plaintiff’s alleged prejudice in its reply brief.
Without Defendant’s arguments, the court must assess Plaintiff’s prejudicial claims on its
own. She is correct that Defendant’s lack of participation will protract this lawsuit. The parties
would have been in discovery and could be finishing it now or in the coming months. Plaintiff’s
argument about attorney’s fees and costs also has merit. The court awarded attorney’s fees and
costs for the work her counsel had done prior to Defendant’s motion to set aside the default
judgment. The court will not inquire into Plaintiff and her attorney’s compensation agreement,
but it is not far afield that she is now incurring legal expenses that were not anticipated when the
court entered final judgment in May. (Doc. 8.) Thus, the prejudice factor cuts in favor of Plaintiff.
B.

Reason and Length of Delay

Plaintiff initiated her claim in March of 2023 when she filed her Charge of Discrimination
with the EEOC. (Doc. 26-1 ¶ 3.) She then filed her complaint against Defendant in December of
2023. (Doc. 1.) Now, nearly a year after Plaintiff filed her complaint, Defendant has moved for
the court to set aside its default judgment. Defendant argues that the delay occurred because Mr.
Gaggero is unfamiliar with legal proceedings—more specifically with legal representation. (Doc.
25 at 7.) Defendant claims that Mr. Gaggero believed that attorney #2 was representing Defendant
and responding to the court filings after he agreed to review the case filings. (Id.) Mr. Gaggero
also believed that the matter had been resolved because he had received no communications from
the court after attorney #2 informed Mr. Gaggero that he could not represent Defendant. (Id. ¶ 6.)
By contrast, Plaintiff argues that Defendant provides no reason for why Mr. Gaggero believed

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attorney #2 was representing Defendant. (Doc. 26 at 9.) Moreover, Plaintiff asserts that Defendant
fails to explain why it delayed speaking with an attorney after it was served Plaintiff’s complaint.
In effect, Plaintiff’s argument is that Defendant has no justifiable reason for its delay.
The court finds that Defendant does not have a justifiable reason for its delayed response
in this lawsuit. First, the facts indicate that Mr. Gaggero did not need to be familiar with legal
proceedings to know that he needed to respond to Plaintiff’s complaint within 21 days of receipt.
(Doc. 3 at 2.) The summons clearly and explicitly stated that Defendant had 21 days to respond.
(Id.) Nor can Mr. Gaggero/Defendant claim ignorance of the proceedings. Plaintiff informed
Defendant that she had filed a discrimination claim with the EEOC. (Doc. 26-1 ¶ 3.) One of
Defendant’s employees, Mr. Bui, contacted Plaintiff’s counsel to allegedly resolve Plaintiff’s
claims before she filed a lawsuit. (See id. ¶ 4.) The EEOC sent Defendant Plaintiff’s Notice of
Right to Sue. (Doc. 26-1 at 6.) Defendant received the summons, (Doc. 3), and the human
resources employee, Ms. VanSteenburg, passed it along to Mr. Gaggero. (Doc. 25-1 at 2.)
Plaintiff’s counsel sent via certified mail a copy of the Application for Entry of Default and the
Motion for Default Judgment. (Doc. 26-1 ¶ 7.) And Defendant received both because Ms.
VanSteenburg again signed the receipt. (Id. ¶ 8.) Knowing that his company, the Defendant, had
to respond to Plaintiff’s complaint within 21 days or face default judgment, Mr. Gaggero could
have clarified with attorney #2 whether he would be filing a response or requesting an extension
to file a response. Instead, according to Defendant’s briefings, Mr. Gaggero relied on attorney
#2’s single word answer “yes” to his inquiry about reviewing the case as confirmation that attorney
#2 would represent Defendant and file the proper responses, communicate with Plaintiff and her
counsel, and ensure Defendant’s interests were being served in court. The court can excuse some
confusion about the legal profession and proceedings, but it cannot excuse Mr. Gaggero’s failure

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to clarify attorney #2’s relationship with Defendant and seek additional legal help as it is
documented that he received filings indicating that Plaintiff was moving for default judgment.
A court also considers, as part of the analysis on the reason for the delay, whether the
movant had control over its delayed participation in the lawsuit. See Jennings, 394 F.3d at 856.
Here, the court focuses on Defendant’s choice of legal counsel, an aspect of the lawsuit entirely
within Mr. Gaggero and Defendant’s control.

For example, a party controls when legal

representation occurs, who the attorney will be, and how often they speak. In the present matter,
Defendant did not seek legal counsel until fifteen days after receiving the summons. (Doc. 25-1 ¶
4.) Mr. Gaggero attempted to contact the first attorney on January 12, and then three days later,
on January 15. (Doc. 25-1 ¶ 4.) Upon learning that the attorney was out of the office and could
not represent Defendant, Mr. Gaggero waited 21 days to contact attorney #2. (Id. ¶ 5.) By this
point, the 21-day deadline to respond to Plaintiff’s complaint had passed. Clearly, Defendant was
not hastily searching for legal counsel. At this juncture, Defendant could have hired the law firm
currently representing it, which would have been well before the court entered default judgment.
Instead, Defendant and Mr. Gaggero relied on attorney #2, who, based on the evidence provided,
never contractually confirmed that he would represent Defendant. Relatedly, Defendant and/or
Mr. Gaggero controlled how often they spoke with attorney #2. If, as occurred here, an attorney
is not responding, the party has at least two options: (1) persistently contact the attorney to learn
more about the case, or (2) find a new attorney. Defendant did neither. To further illustrate that
Defendant and Mr. Gaggero controlled their legal representation, within 48 hours of learning that
Defendant’s client accounts had been garnished, Mr. Gaggero contacted and began working with
Defendant’s current legal counsel. (Doc. 25-1 ¶¶ 9, 10.)

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Additionally, the court notes the waste of judicial resources caused by Defendant’s failure
to timely engage and participate in this case. The court has already considered and ruled on
Plaintiff’s motion for default judgment. On top of that, the court expended considerable time
preparing for and conducting a formal hearing on damages, all of which would have been
unnecessary had Defendant simply answered the complaint and participated in the case. There is
nothing novel about being prepared to respond to legal claims; it is simply part of doing business
in this country, yet Defendant approached its obligations in this case with an unusual disregard for
the importance of timely participation in the case, or the potential consequences for failing to do
so.
As for the timing of Defendant’s Rule 60(b)(1) motion, it rightly asserts that the motion is
timely. A party has one year to file a Rule 60(b)(1) motion to set aside a final judgment from the
date that the final judgment is entered. Fed. R. Civ. P. 60(c)(1). The court entered final judgment
against Defendant on May 17, 2024. (Doc. 8.) Defendant filed its motion to set aside that default
judgment on August 15, 2024—well within the one-year period. (Doc. 25.)
Nonetheless, despite Defendant’s timely motion, the court concludes that Defendant’s
reason for its delayed participation and its control over its legal representation outweighs that it
timely moved to set aside the court’s default judgment. Therefore, the court finds that the factors
pertaining to the length and reason for that delay cut against Defendant.
C.

Good Faith

Defendant argues that its failure to participate was made in good faith. Plaintiff disagrees.
She asserts that Defendant’s failure to participate was intentional because it ignored notices from
the court and exerted little to no effort to actually participate in the proceedings. (Doc. 26 at 11.)

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Additionally, Plaintiff argues that the case law Defendant relies upon can be distinguished such
that they do not support Defendant’s position. (See id.)
The two cases Defendant relies upon are HFR, Inc. v. Hildyard, No. 05-2300-JWL, 2007
WL 4374174 (D. Kan. Dec. 13, 2007), and Hoskinson v. High Gear Repair, Inc., No. 11-1190JTM, 2012 WL 1232095 (D. Kan. Apr. 12, 2012). (See Doc. 25 at 5–7.) In HFR, Inc., the court
entered a default judgment against defendants, Victor and Brenda Hildyard, because they failed to
make an appearance in the lawsuit. See 2007 WL 4374174, at *1. However, the court granted the
Hildyards’ Rule 60(b)(1) motion to set aside the default judgment because when the plaintiff
served the Hildyards with the original complaint, they immediately sought legal counsel and were
told that the plaintiff could not assert individual claims against them. See id. at *6. Because of
this advice, when the plaintiff served them with an amended complaint, they still believed that they
could not be personally liable for the claims. See id. The court concluded that this was a reasonable
explanation for their delayed participation and that they had a good faith belief they could not be
personally liable because of their counsel’s advice. See id. In Hoskinson, the court entered a
default judgment against defendant High Gear Repair, Inc. See 2012 WL 1232095, at *1. The
court granted High Gear’s Rule 60(b)(1) motion because the complaint misnamed the defendant
as First Gear Repair, Inc., the newly hired secretary received but misplaced the summons, and the
early demand letter described the plaintiff’s accident as having occurred in a manner/place where
High Gear could not be responsible. Id. Additionally, High Gear contacted legal counsel as soon
as it learned of the default judgment. See id.
Defendant describes these two cases in its briefing but only provides two arguments as to
why these cases support a finding that Defendant acted in good faith. The first is that Defendant
claims to have had a good faith belief that it engaged counsel sooner than the defendant in

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Hoskinson. (Doc. 25 at 7.) Defendant acknowledges that the defendant in Hoskinson technically
hired counsel at an earlier stage in the legal proceedings than Defendant. (Id.) However, the
difference, according to Defendant, is that it believed it had hired legal counsel prior to the court’s
entry of default judgment, whereas the Hoskinson defendant engaged legal counsel for the first
time after default judgment. (Id.) Defendant’s second argument is that it filed its Rule 60(b)(1)
motion sooner than the defendants in HFR, Inc. It took Defendant three months, and the
defendants in HFR, Inc. two years. 2007 WL 4374174 *6. Although not explicit, Defendant
argues that if the court in Hoskinson and HFR, Inc. were willing to excuse those defendants’
neglect because they committed the errors in good faith, then the court should also excuse
Defendant’s neglect because it believed, in good faith, that it had engaged an attorney well before
default judgment was entered and its Rule 60(b)(1) motion was filed well before two years after
judgment.
Plaintiff is correct that the facts from Hoskinson and HFR, Inc. can be distinguished from
the facts of present case. However, the issue the court has identified with Defendant’s use of
Hoskinson and HFR, Inc. is that it relies on irrelevant facts from those cases. For example, in
HFR, Inc., the court excused defendants’ neglect of failing to make an appearance because their
legal counsel informed them that they could not be personally liable. See id. Here, Defendant
received no such advice from legal counsel. Indeed, the evidence indicates that Defendant received
no legal advice until after default judgment was entered and its client’s accounts were garnished.
And in Hoskinson, the court excused the defendant’s neglect because a series of mistakes led it to
believe that the plaintiff was/could not sue it: the new secretary misplaced the complaint, the
complaint did not name the correct defendant, and the facts in the demand letter could not support
a claim against the defendant. 2012 WL 1232095, at *1. Moreover, the defendant in Hoskinson

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actually hired legal counsel after learning about the default judgment against it. Id. By contrast,
Defendant cannot claim that it was unaware of Plaintiff’s lawsuit or that it believed Plaintiff had
no claim against it. Defendant’s representative Mr. Bui communicated with Plaintiff’s counsel
after Defendant received the EEOC Right to Sue letter, (Doc. 26-1 ¶ 4, p. 4.), and Ms.
VanSteenburg received and delivered the Summons to Mr. Gaggero. (Doc. 3.) Rather, Mr.
Gaggero’s mistake was a failure to ensure he had adequate legal representation—an aspect of the
lawsuit in his control. In other words, Defendant’s arguments relying on Hoskinson and HFR, Inc.
do not support the argument that Defendant’s neglect should be excused because it was made in
good faith.
Furthermore, the evidence indicates that Mr. Gaggero’s efforts to participate in the case
were minimal and not approached with the seriousness and degree of attentiveness that ought to
arise when learning that your company has been sued in federal court. Here, as discussed in
Section III.B, Defendant knew about the lawsuit, but failed to hire legal counsel. Defendant also
failed to hire legal counsel with any vigor until its client accounts were garnished. The court
disagrees with Plaintiff’s assertion that Defendant acted in bad faith. Based on the evidence, it
appears that Defendant’s conduct does not amount to bad faith because it did not intentionally
avoid participating in the case. See Mark v. United States, No. 14-CV-0422-MV-KK, 2016 WL
8114217, at *5 (D.N.M. Sept. 20, 2016) (suggesting that intentionally failing to participate in a
case would amount to bad faith). Nonetheless, a party may still fail to act in good faith even if it
does not act in bad faith. See id. For example, in Mark v. United States, the court found, in part,
that the plaintiff failed to act in good faith because he ignored his case for five months and did not
investigate why he did not receive confirmation that service of process had been completed. See
id. Indeed, a party’s behavior is highly determinant of whether it acted in good faith. See Mayfield

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v. Morris, No. 17-0891 MV/SMV, 2020 WL 3832962, at *6 (D.N.M. July 8, 2020) (finding that a
party acted in good faith when it attempted, even though it failed, to meet deadlines). Although
Defendant attempted to engage legal counsel in order to participate in the case, the evidence
demonstrates that it did so without zeal and failed to ensure that it had any meaningful
representation, much less actual representation. Additionally, based on the evidence, Defendant
periodically received information about the case, yet it failed to act until there were actual
consequences. Thus, while the court finds that Defendant did not act in bad faith, it concludes that
Defendant did not act in good faith.
IV.

Conclusion
After weighing the parties’ arguments and the Jennings factors, the court finds that

Defendant’s delayed participation in the proceedings does not amount to excusable neglect.
Except for the timeliness of its Rule 60(b)(1) motion, the other Jennings factors favored denial.
Because the court does not excuse Defendant’s neglect, the court need not address its alleged
meritorious defenses. THEREFORE, relief under Rule 60(b)(1) is not warranted, and Defendant’s
motion is DENIED.
IT IS SO ORDERED. Dated this 22nd day of November, 2024.

s/ John W. Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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