Summary Calendar FORMAL SPECIALISTS LTD. v. WILBERT LYONS INC. Etc., ET. AL

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 14, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41274
Summary Calendar
FORMAL SPECIALISTS LTD.
Plaintiff - Appellee
v.
WILBERT LYONS INC. Etc., ET. AL
Defendants
WILBERT LYONS, INC., doing business as Al’s Formal Wear
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-182
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Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Wilbert Lyons, Inc., (“Lyons”) appeals from the district
court’s grant of default judgment and denial of its motion to
vacate the default judgment awarded to Formal Specialists. This
court has no jurisdiction to review the district court’s grant of

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No. 03-41274
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the default judgment because Lyons filed an untimely notice of
appeal. See FED. R. APP. P. 4(a)(1)(A).
For the first time on appeal, Lyons argues that the
complaint was confusing and ambiguous as to whether it was named
as a party to the lawsuit. Because Lyons did not raise this
issue in the district court in either its motion to vacate or in
its subsequent pleadings, this issue will not be addressed for
the first time on appeal. See F.D.I.C. v. Mijalis, 15 F.3d 1314,
1327 (5th Cir. 1994).
Lyons argues that the district court abused its discretion
in concluding that its failure to file an answer was willful and
intentional. Lyons argues that its failure to respond was due to
attorney error. Lyons does not renew his arguments that the
default judgment should be vacated due to a meritorious defense
or because the judgment was procured by fraud. Accordingly,
these arguments are abandoned on appeal. Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993)(deeming argument abandoned on
appeal by party’s failure to argue the issue in the body of
appellate brief).
A district court may set aside an entry of default or
default judgment for “good cause” under Federal Rules of Civil
Procedure 55(c) and 60(b). See Lacy v. Sitel Corp., 227 F.3d at
291-92. This court reviews the denial of such relief for abuse
of discretion. Id. A determination of intentional failure to

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respond is reviewed for clear error. Dierschke v. O’Cheskey,
975 F.2d 181, 184 (5th Cir. 1992).
The district court did not clearly err in determining that
Lyons intentionally failed to answer the complaint. Lyons
received the complaint which warned that an answer was required
within 20 days and that a default judgment would be taken if no
answer was filed. See FED. R. CIV. P. 12(a). Even assuming that
counsel drafted an untimely answer for Lyons to file, Lyons did
not act expeditiously to cure the default. See Dierschke, 975
F.2d at 184. The record reflects that Lyons delayed over nine
months from the date of the default judgment to file its motion
to vacate the default judgment. Accordingly, the district court
did not abuse its discretion in denying Lyons’ motion to vacate
the default judgment. The judgment of the district court is
AFFIRMED.

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