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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2462
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAJJ RANCH, Located 8.2 Miles East of
Highway 6 on The South Side of Highway
105, Grimes County Texas, ET AL.,
Defendants,
JOE MEYERS AND DEBORAH MEYERS,
Claimants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(CA H 91 1028)
(March 17, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND

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The Government filed a forfeiture action against the DAJJ
Ranch, claiming that the property was used by its owners, Joe and
Deborah Meyers, to conceal Joe Meyers's income from illegal
gambling. Joe and Deborah filed individual notices of claim to the
property to defend their interests against the forfeiture action.
After repeated attempts by the Government to take the Meyers's
depositions and to obtain from them certain documents in the course
of discovery, the district court entered an order compelling the
Meyers to produce records demanded by the Government during
discovery and to attend their depositions. If the Meyers did not
do as ordered, the district court would grant the Government's
motion for entry of default judgment. The district court later
granted the Government's motion for default judgment on the grounds
that the Meyers did not comply with its previous order, failed to
appear for their deposition, and undermined the Government's
efforts to obtain discovery. The Meyers moved to set aside the
default judgment. The district court denied the motion.
OPINION
As an initial matter, the Government raises the issue on
appeal that Deborah Meyers was not properly before the district
court as a claimant as she had never perfected a claim under the
appropriate rules governing forfeiture proceedings. However, since
the Government has failed to file a notice of cross-appeal, this
Court is precluded from reviewing this issue. Thurman v. Sears,
Roebuck & Co., 952 F.2d 128, 130 n.4 (5th Cir.), cert. denied, 113
S. Ct. 136 (1992).

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The Meyers sought relief under a Fed. R. Civ. P. 60(b) motion
to set aside the default judgment as provided under Fed. R. Civ. P.
55(c). Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665,
669 (5th Cir.) (en banc), cert. denied, 479 U.S. 930 (1986), states
that if a motion is served within ten days of the judgment and
draws into question the correctness of the judgment, it is
functionally a motion under Fed. R. Civ. P. 59(e). Rule 55(c)
states that if a judgment by default has been entered, it may be
set aside in accordance with Rule 60(b). Fed. R. Civ. P. 55(c).
One 1988 Dodge Pickup, 959 F.2d 37, 40-41 (5th Cir. 1992)
determined that the "brightline rule" of Harcon Barge would apply,
and that a motion to set aside a default judgment could be treated
as a Rule 59(e) motion, at least for some purposes. Yet, this
Court expressly reserved the question of the effect of Rule 55(c)
on the standard to be applied in ruling on a motion to set aside a
default judgment served within ten days of the judgment's entry,
and the appellate standard of review of such a ruling, stating that
Harcon Barge only related to the time and effectiveness of the
notice of appeal or the effect thereon of Fed. R. App. P. 4(a)(4).
If a claimant serves a motion to set aside default judgment
within ten days after entry of the judgment, the time for giving
notice of appeal does not start running until the district court
overrules the motion. Thus, a notice of appeal given within the
applicable time period thereafter is a timely notice of appeal of
both the default judgment itself and the order denying the motion
to set it aside. United States v. One 1988 Dodge Pickup, 959 F.2d

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at 40. The district court entered the default judgment on April
10, 1992, and the Meyers served their motion to set aside the
default judgment on April 15, 1992, within the ten-day time limit.
Thereafter, the district court entered the denial of the
motion to set aside the default judgment on May 28, 1992, and the
Meyers filed a timely notice of appeal. Therefore, the Meyers's
notice of appeal applies to both the default judgment and the order
denying the motion to set it aside.
The Meyers argue that the district court erred in granting the
Government's motion for default judgment. They argue that they
complied with the court order compelling discovery to the best of
their ability and that the default judgment is incorrect in stating
that default should be entered for their failure to appear at their
depositions.
The district court may properly enter default judgment
pursuant to Rule 55 for failure of a party to comply with court
rules of procedure. McGrady v. D'Andrea Elec., Inc., 434 F.2d
1000, 1001 (5th Cir. 1970). The standard of review is abuse of
discretion. Id. Fed. R. Civ. P. 37(b)(2)(C) provides that a
default judgment may be entered if a party fails to comply with a
court order to provide or to permit discovery. See McLeod,
Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1486
(5th Cir. 1990). Although judgment by default is considered an
extreme sanction, if a defendant demonstrates "flagrant bad faith
and callous disregard of its responsibilities," the district

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court's choice to enter a default judgment is not an abuse of
discretion. Id.
The district court's order specifically stated that the Meyers
were to attend their depositions and to produce all records
requested the Government. If the Meyers did not do as ordered, the
district court would grant the Government's motion for default
judgment. While Deborah Meyers did attend her deposition, she
failed to provide almost all of the requested documents, in
defiance of the order. Those records were still in the possession
of David Towery, the Meyers's tax attorney. Deborah Meyers's
attorney at the deposition explained that he had orally requested
the records from Towery, but Towery had refused to release them.
Such action was the only attempt made to obtain the records. Joe
Meyers attempted to avoid his deposition by filing a motion barring
the taking of his deposition the day before the deposition was to
begin. Such motion was not ruled upon, and Meyers appeared at his
deposition the next day. Meyers did not produce any of the
requested documents, contending that the majority of such documents
were in the possession of his tax attorney, David Towery, who was
not amenable to producing those records. Further, Meyers did not
answer any questions at the deposition, and generally asserted his
Fifth Amendment privileges, asserting that anything he would say
under oath could be used to revoke the probation he is currently
undergoing for his conviction of illegal gambling. "A blanket
refusal to answer questions at deposition on the ground that they
are privileged is an improper invocation of the fifth amendment .

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1 The Meyers brought to the district court's attention
through their motion to set aside the default judgment the facts
that they did appear and did produce some documents. However, the
district court refused to disturb the default judgment.
6
. . ." First Financial Group, Inc., 659 F.2d 660, 668 (5th Cir.
1981) (internal quotations and citations omitted). Instead, the
party must present himself with his records for questioning, and as
to each question and each record elect to raise or not to raise the
defense. Id.
The Government argues that the Meyers's actions as stated
above did not amount to compliance with the district court's order
compelling the Meyers to participate in discovery, and that
therefore, entry of default against the Meyers was proper.
Although the order entering default judgment stated that
default was granted because the Meyers failed to appear at their
deposition, it also stated that the default was being granted for
the Meyers's failure to comply with the order directing them to
produce all requested documents. It further stated that default
was being granted because the Meyers had undermined all the
Government's efforts to obtain discovery. While the district court
misstated the fact the Meyers did not appear at their deposition,1
the court still stated adequate reasons for granting default
judgment. Therefore, the district court did not abuse its
discretion in granting a default judgment.
The Meyers also argue that the district court erred in denying
their motion to set aside the default judgment. In order to set
aside a default judgment, a claimant must show that his failure to

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defend was due to justifiable neglect and that he has a meritorious
defense to the action. United States v. One 1978 Piper Navajo PA-
31 Aircraft, 748 F.2d 316, 318 (5th Cir. 1984). The Meyers have
failed to satisfy both prongs of the test.
The Meyers argue that they were denied an opportunity to
oppose the motion for default judgment by the district court's
failure to grant them proper notice and a hearing as required under
Fed. R. Civ. P. 55(b)(2). Rule 55(b)(2) provides that the party
against whom judgment by default is sought shall be served with
written notice of the application for judgment at least 3 days
prior to the hearing on such application. The record in this case
reflects that the Government hand-delivered the Meyers a copy of
the motion for default judgment on January 13, 1992, approximately
four months before the district court granted the motion. "Rule
55(b)(2) does not require a district court to hold either an
evidentiary hearing or oral argument on a motion for a default
judgment." First Financial Group of Texas, 659 F.2d at 669.
Further, the Government's hand-delivery of a copy of the motion for
default judgment months before the court granted the motion was
proper notice under Rule 55(b)(2). See id. Therefore, the Meyers
have failed to advance a justifiable reason for not defending their
claim.
The Meyers must also show they had a meritorious defense to
the Government's forfeiture action. One 1978 Piper Navajo PA-31
Aircraft, 748 F.2d at 318. The district judge determined that the
Meyers had offered no reason why the court should set aside the

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default judgment. The record contains no indication that the
district court erred in reaching that decision. The Meyers
asserted in their motion that they had a meritorious defense to the
cause of action, however, they did not identify any particular
defense.
The only attempt at a specific defense appears to be the
Meyers's argument on appeal that default judgment was improper
because the Government did not allege that Deborah Meyers used any
of her separate funds to purchase the DAJJ ranch. Issues raised
for the first time on appeal are not reviewable unless they involve
"purely legal questions and failure to consider them would result
in manifest injustice." United States v. Garcia-Pillado, 898 F.2d
36, 39 (5th Cir. 1990).
An affidavit of an IRS special agent attached to the
Government's motion for summary judgment details Deborah Meyers's
role in using DAJJ ranch to conceal illegal gambling funds. The
affidavit states that Deborah Meyers holds a $100,000 mortgage on
the ranch. It further explains that as Deborah was not an innocent
party, her interest in the ranch is considered a portion of the
forfeiture action. Given this evidence, the Government has
asserted that Deborah Meyers has a valid interest in the ranch and
has played a role in using the ranch for illegal purposes.
Therefore, manifest injustice would not result in failing to
consider the Meyers's attempt at presenting a meritorious defense.
The district court properly denied the Meyers's motion to set aside
the default judgment.

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The judgment of the trial court is AFFIRMED.

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