BONANZA INTERNATIONAL, INC. AND STEWART INVESTMENTS, INCORPORATED, PLAINTIFFS-APPELLEES,
v.
JOSEPH CHARLES CORCELLER, JR., DEFENDANT-APPELLANT
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The court held that the trial court did not abuse its discretion in entering a default judgment against the defendant.
Plaintiff sued for trademark infringement, unfair competition, and breach of contract. The defendant failed to file an answer for over ten months and …
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PER CURIAM:
Plaintiff brought this action for trademark infringement, unfair competition, and breach of contract in the operation of a low-cost steak dinner restaurant. After a full hearing, the Court entered a preliminary injunction against defendant. Thereafter, the Court entered a default judgment on the merits against defendant for his failure to file an answer for more than ten months after the expiration of the allotted time under the Federal Rules of Civil Procedure, his flagrant violations of the Court’s orders, and the Court’s findings of fact and conclusions of law. Defendant appeals. We affirm.
We find no abuse of the discretion permitted the trial court on matters of this kind. Moldwood Corp. v. A. B. Stutts, 410 F. 2d 351 (5th Cir. 1969).
The defendant failed to file an answer for nearly eleven months after the appropriate deadline. Rule 55, F.R.Civ.P., permits entry of a default as the con sequence of failure to comply with Rule 13, F.R.Civ.P., requiring an answer within twenty days after service of the summons and complaint. See 3 W. Barron & A. Holtzoff, Federal Practice & Procedure, § 1211 et seq. The record reveals that the defendant had ample notice as required by Rule 55.
There is evidence, moreover, that defendant refused to obey the Court’s orders, and such action constitutes sufficient grounds for a default judgment. See McGrady v. D’Andrea Electric, Inc., 434 F. 2d 1000 (5th Cir. 1970); Flaksa v. Little River Marine Construction Co., 389 F. 2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968).
Defendant elected not to appear at a full hearing on the question of damages. Damages awarded pursuant to default cannot be questioned for the first time upon appeal. Hopkins v. McClure, 148 F. 2d 67 (10th Cir. 1945).
Affirmed.
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Citator
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- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- Flaksa v. Little River Marine Constr. Co., Inc., 389 F.2d 885 (5th Cir. 1968)
- Colorado v. Franc, 392 U.S. 928 (U.S. 1968)
- Am. Acceptance Corp. v. Schoenthaler, 392 U.S. 928 (U.S. 1968)
- Moldwood Corp. v. Stutts, 410 F.2d 351 (5th Cir. 1969)
- McGRADY v. D'Andrea Elec., Inc., 434 F.2d 1000 (5th Cir. 1970)
- Hopkins v. McCLURE, 148 F.2d 67 (10th Cir. 1945)