                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                       December 2, 2003
                                    FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                       _________________                                    Clerk
                                           No. 03-10151

                                       (Summary Calendar)
                                       _________________


UNITED STATES OF AMERICA,


                               Plaintiff-Appellee,

versus


MELVIN R HASSELL; ET AL,


                               Defendants.

MELVIN R HASSELL

                               Defendant-Appellant



                           Appeal from the United States District Court
                               For the Northern District of Texas
                                   USDC No. 3:02-CV-112-G



Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*




         *
          Pursuant to 5th Cir. R. 47.5, the court has determined t hat this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
       Pro se appellants Melvin R. Hassell and Nelda Jo Hassell (“the Hassells”) appeal from the

district court’s entry of default judgment against them and from the denial of their motions to set

aside the default judgment. The United States filed suit against the Hassells to collect income taxes

assessed on the Hassells, to set aside as fraudulent the conveyance of their residence to Summit

Christian Academy, to foreclose the tax liens on the property and to obtain judgment for any balance

remaining after the foreclosure sale. The district court extended the time for the Hassells to file an

answer. On that date, the Hassells filed three non-responsive documents with the court. The district

court stated that the Hassells appeared to be in default and allowed them an extension to file an

answer within the contemplation of FED. R. CIV. P. 7(a) and 8(b). The court also ordered that in the

absence of a timely answer the Government should move for default judgment. Two days after the

second extended deadline passed, the Hassells moved for a third extension to file an answer. The

district court granted the request, but ordered that the document filed by the Hassells must be an

answer to the Government’s complaint within the contemplation of Rules 7(a) and 8(b). On the

deadline for the third extension for filing an answer, the defendants filed a motion to dismiss claiming

lack of jurisdiction. The government then filed a motion for a clerk’s entry of default and motion for

default judgment. The clerk’s entry of default was issued on August 12, 2002. The district court

then denied the Hassells’ motion to dismiss. On September 5, 2002, the district court entered a

default judgment against the Hassells.

       On September 9, the Hassells moved to set aside the default judgment on the basis that they

filed a bankruptcy petition on August 26, 2002, and accordingly the default judgment was void by

operation of the bankruptcy stay under 11 U.S.C. § 362. The bankruptcy court then retroactively

annulled the automatic stay so as not to impede the default judgment. On December 4, 2002, after


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being informed of the bankruptcy court’s order, the district court denied the Hassells’ motion to set

aside the verdict. On the same day, an attorney appearing on behalf of the Hassells filed a motion

for leave to amend their motion to set aside the default judgment and a motion for leave to file an

answer. On January 9, 2003, these motions were denied. On February 7, 2003 Melvin R. Hassell

(“Mr Hassell”) filed a notice of appeal.

       Mr. Hassell subsequently filed a motion to add his wife to the prior notice of appeal nunc pro

tunc. The motion was carried with the case, and is now GRANTED.

       As an initial matter, the appeal is not timely as to the entry of the default judgment and the

motion to set aside the default judgment. See FED. R. APP. P. 4. This Court thus has no jurisdiction

over those issues. See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994) (“A timely filed notice

of appeal is a jurisdictional prerequisite to our review.”).       Accordingly, these claims are

DISMISSED for lack of jurisdiction. See Portis v. Harris County, Tex., 632 F.2d 486, 487 (1980).

The Hassells’ appeal of their motion to set aside the default judgment and motion for leave to file

an answer are timely. See FED. R. APP. P. 4. This Court reviews a refusal to reopen a default

judgment for abuse of discretion. Federal Savings & Loan v. Kroenke, 858 F.2d 1067, 1069 (5th

Cir. 1988).

       The Hassells assert that the automatic stay provision provided good cause for their

procedural default. See FED. R. CIV. P. 55(c) (allowing judgements of default to be set aside in

accordance with rule 60(b)). The Hassells offer no legal support for this proposition. This argument

is thus inadequately briefed and accordingly is waived. See Nichols v. Scott, 69 F. 3d 1255, 1287

n.67 (5th Cir. 1995); FED. R. APP. P. 28(a)(4). Even if this argument was not waived, it is without

merit. The automatic stay provision was triggered by the filing of the bankruptcy petition on August


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26, 2002. See 11 U.S.C. §362. The Hassells’ third extended deadline for submitting an answer to

the Government’s complaint was August 5, 2002. Clearly, the subsequent stay could not constitute

good cause for the default.

       The Hassells next argue that there was good cause to set aside the default judgment because

after denying their motion to dismiss the district court failed to give the Hassells a particularized

statement of deficiencies and an opportunity to cure these defects. The Hassells had already been

given an opportunity to cure the defects and file an answer that complied with the federal rules.

They did not do so. The district court is not required to allow a pro se litigant to cure defects ad

infinitum. Accordingly, it was not an abuse of discretion for the district court to deny the Hassells’

motion to amend their motion to set aside the default judgment and their motion to file an answer.

The denial of the motion to amend the motion to set aside the default judgment and the motion to

file an answer is AFFIRMED.

       The motion to add Nelda Jo Hassell to the notice of appeal is GRANTED. The appeals of

the default judgment and the motion to set aside the default judgment are DISMISSED for lack of

jurisdiction. In all other respects, the judgment of the district court is AFFIRMED.




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