   Alvera WALTER, Individually and as Trustee of the Estate of Charles Walter, deceased, Plaintiff-
Appellant,

                                                       v.

   BLUE CROSS & BLUE SHIELD UNITED OF WISCONSIN, a corporation, Defendant-Appellee.

                                                 No. 97-5926.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                June 10, 1999.

Appeal from the United States District Court for the Southern District of Florida. No. 97-846-CV-JAL, Joan
A. Lenard, Judge.

Before BIRCH and CARNES, Circuit Judges, and MILLS1, Senior District Judge.

        CARNES, Circuit Judge:

        Plaintiff Alvera Walter sued defendant Blue Cross & Blue Shield United of Wisconsin (herein "Blue

Cross" or "Blue Cross of Wisconsin") in Florida state court for breach of contract. Blue Cross removed the

case to federal district court and filed a motion to dismiss for lack of personal jurisdiction. Walter failed to

respond to that motion in a timely manner. Solely because of that failure, the district court granted the motion

to dismiss without reaching the underlying jurisdictional question. Walter then moved to set aside the

dismissal and filed a belated opposition to the motion to dismiss on jurisdictional grounds. The court denied

Walter's motion to set aside its order of dismissal.

        For the reasons set forth below, we hold that the district court abused its discretion by denying

Walter's motion to set aside its dismissal order based upon the untimeliness of her response. Nevertheless,

we also hold that the action is due to be dismissed on other grounds, because Walter has failed to establish

that the district court had personal jurisdiction over Blue Cross.

                                             I. BACKGROUND




    1
     Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
designation.
           In 1975, Charles Walter, a Wisconsin state employee, and his wife, Alvera, began to receive health

insurance coverage from the State of Wisconsin's self-funded group health insurance policy. Blue Cross of

Wisconsin acted as thirdparty administrator of this health plan. Sometime during the 1970s, the Walters

moved from Wisconsin to Florida but retained their health insurance coverage through the State of

Wisconsin's plan. The Walters sent their premium payments from Florida to Blue Cross of Wisconsin, which,

for its part, paid claims made by Florida health care providers. Under the terms of the Third Party

Administrator Agreement, Blue Cross could not terminate the Walters' policy because they had moved to

Florida.

           On May 15, 1997, Alvera Walter, both individually and as trustee of the estate of her deceased

husband, sued Blue Cross of Wisconsin in the state courts of Florida, alleging that the company had breached

its health insurance policy with the Walters by denying payment on some claims. On June 25, 1997, Blue

Cross removed the case to federal court. Walter subsequently filed a motion to remand.

           On July 2, 1997, Blue Cross of Wisconsin filed a motion to dismiss the complaint for lack of personal

jurisdiction, arguing that it had no contacts with the state of Florida. Walter's response to the motion to

dismiss was due on July 18. On July 14, Walter moved for a 20-day extension of time to file her response,

and on August 19, the district court granted the requested extension. One month after that, on September 22,

1997, the district court denied Walter's motion to remand the case. Sometime after Walter's attorney received

the order denying the motion to remand, she realized that Blue Cross of Wisconsin's motion to dismiss was

still pending, but she did not file her response immediately. On October 6, having received no response from

Walter, the district court entered an order granting Blue Cross's motion to dismiss. The order stated:

           A party opposing a motion must serve a response on the moving party within ten days of being
           served with the motion, and must file a copy of its response with the Court within three days of
           serving the response. See S.D. Fla. L.R. 7.1C; S.D. Fla. L.R. 5.1B. Failure to do so is a basis for
           granting the motion. S.D. Fla. 7.1C. Defendant filed its motion to dismiss on June 2, 1997. On
           August 19, 1997, this Court granted Plaintiff a twenty day extension of time to respond. To date,
           Plaintiff has not filed a response to that motion with this Court. Accordingly, it is hereby ...
           ORDERED AND ADJUDGED that Defendant's motion to dismiss be GRANTED. The Clerk of
           Court is directed to close this case.
        On October 8, which was two days after the dismissal, Walter filed her response to Blue Cross of

Wisconsin's motion to dismiss. A week later, on October 16, Walter moved the court, under Federal Rule

of Civil Procedure 60(b), to set aside its order granting the motion to dismiss, explaining that her counsel had

received a copy of the court's order on October 8 and that "during the period of time when the Court granted

the Plaintiff's ... extension to respond to the Defendant's Motion to Dismiss, the undersigned counsel's former

secretary had just terminated her position with this office and through some inadvertence in filing, never

diaried and docketed for a timely response to be filed to the Motion to Dismiss." Although Walter admitted

that her counsel "learned" of the pending motion to dismiss when the court denied her motion to remand in

late September, she stated: "This motion has been brought in good faith and the undersigned asserts that there

is no prejudice that will arise to the Defendant by setting aside the Order Granting Defendant's Motion to

Dismiss." On November 14, the district court denied Walter's motion to set aside its order. Walter then filed

this appeal.

        On January 26, 1999, while this appeal was still pending, Walter sued Blue Cross of Wisconsin in

Wisconsin state court, alleging the same breach of contract claims. In her Wisconsin complaint, Walter stated

that she was a Wisconsin resident.2 On March 2, 1999, Blue Cross filed a motion to dismiss the Wisconsin

complaint. Walter subsequently moved to stay her Wisconsin lawsuit, pending resolution of this case.

                                       II. STANDARD OF REVIEW

         We review the district court's denial of a motion to set aside a final judgment for an abuse of

discretion. See Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849 n. 2 (11th Cir.1996).

                                             III. DISCUSSION

A. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING WALTER'S MOTION TO
SET ASIDE ITS ORDER OF DISMISSAL?

        Walter argues that the district court abused its discretion in denying her motion to set aside its order

of dismissal, because her lawyer engaged in excusable neglect that did not prejudice Blue Cross of Wisconsin.


    2
      At oral argument, Walter's counsel explained that Walter has returned to Wisconsin to live in a
nursing home.
Blue Cross, on the other hand, emphasizes the length of the delay and the fact that Walter's counsel received

a reminder of the pending motion to dismiss two weeks before she filed her response. We conclude that the

district court did abuse its discretion, because Walter's counsel engaged in excusable neglect.

        The Supreme Court and this Court have recently clarified the test for "excusable neglect." In Pioneer

Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123

L.Ed.2d 74 (1993), the Court held that a creditor's filing of a proof of claim 20 days late constituted excusable

neglect under Federal Rule of Bankruptcy Procedure 9006(b)(1). Looking to other rules for guidance, the

Court stated that, "at least for purposes of Rule 60(b), 'excusable neglect' is understood to encompass

situations in which the failure to comply with a filing deadline is attributable to negligence." Id. at 394, 113

S.Ct. at 1497. The Court explained that the determination of excusable neglect "is at bottom an equitable one,

taking account of all relevant circumstances surrounding the party's omission," and identified four factors to

guide courts in making that determination: "the danger of prejudice to the [other party], the length of the

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." Id. at 395, 113

S.Ct. at 1498. The Court found that in the case before it the creditor had engaged in excusable neglect,

because "the lack of any prejudice to the debtor or to the interests of efficient judicial administration,

combined with the good faith of respondents and their counsel, weigh[ed] strongly in favor of permitting the

tardy claim." Id. at 398, 113 S.Ct. at 1499.

        Three years later, this Court applied the Pioneer factors in Cheney v. Anchor Glass Container Corp.,

71 F.3d 848 (11th Cir.1996). In Cheney, the plaintiff exercised his right to demand a trial de novo following

an arbitration award, but filed his request six days after the deadline had passed and three days after the

district court had entered judgment against him. See id. at 849. We held that the district court had abused

its discretion by refusing to set aside its judgment, because the Pioneer factors weighed in Cheney's favor.

See id. at 850. Noting that the Supreme Court had "accorded primary importance to the absence of prejudice

to the nonmoving party and to the interest of efficient judicial administration in determining whether the
district court had abused its discretion," we relied on the fact that Anchor Glass could not show it had suffered

any prejudice and we found the six-day delay had no adverse impact on the district court. Id. In addition, we

explained that the delay was caused by a miscommunication between two attorneys, which constituted

"negligence" and "simply an innocent oversight by counsel." Id. Finally, we emphasized that there was no

evidence Cheney had acted in bad faith. See id.

         Pioneer and Cheney directly control the outcome of this case, and all four factors weigh in favor of

Walter's position. First, in its memorandum opposing Walter's motion to set aside the dismissal, Blue Cross

of Wisconsin admitted that it had not suffered any prejudice from Walter's delay. Second, although the delay

of one month in this case3 is longer than the delay in Cheney, there is no reason to believe allowing Walter

to file the untimely response would have had an adverse impact on the district court or its resources. Third,

the reason for the delay was the failure of a former secretary of Walter's attorney to record the applicable

deadline—the type of "innocent oversight" involved in Cheney. See 71 F.3d at 850; see also Advanced

Estimating Sys., Inc. v. Riney, 130 F.3d 996, 999 (11th Cir.1997) (miscommunication or clerical error

constitutes excusable neglect; attorney's failure to understand plain language of a rule does not). Finally,

Blue Cross concedes that Walter did not act in bad faith.

        Blue Cross of Wisconsin makes two arguments in support of its contention that the district court

properly refused to set aside its order of dismissal. First, Blue Cross argues that the neglect was not

excusable, because the entire delay was not caused by the secretary's negligence. Although Walter's attorney

admitted she learned of the pending motion to dismiss when she received the court's denial of her motion to

remand in late September, the deadline for responding to the motion to dismiss had already passed at that

point. Walter's response was untimely because of the secretary's negligence, and the two additional weeks




    3
      Blue Cross of Wisconsin argues that Walter filed her response more than two months late, but its
calculation measures the deadline from the date Walter filed her application for an extension of time. We
assume Walter still had 20 days from the date the court granted the extension, even though the court
granted the extension more than one month after the original deadline had passed. Walter submitted her
response approximately one month after that 20-day period expired, making her response late by one
month, not two.
of delay attributable to counsel do not change the undisputed facts that Blue Cross suffered no prejudice from

the delay and that Walter did not act in bad faith.

        Second, Blue Cross of Wisconsin argues that forgiving the untimeliness of Walter's response will

adversely affect the judicial system by fostering disrespect for local rules. Because Blue Cross has conceded

that neither Walter nor her counsel was acting in bad faith, it is not clear that saving Walter from this

"innocent oversight by counsel" fosters disrespect for any rules. Even if it would, the Pioneer and Cheney

decisions compel the conclusion we reach. The district court should have set aside its order of dismissal

based upon Walter's failure to respond in a timely fashion to Blue Cross' motion to dismiss.

  B. DID THE DISTRICT COURT HAVE JURISDICTION OVER BLUE CROSS OF WISCONSIN?

        The district court did not reach the underlying question of whether it had personal jurisdiction over

Blue Cross of Wisconsin, a Wisconsin corporation. Both parties urge us to decide that issue as well, in the

interest of judicial efficiency and to avoid further delay. Because the parties have been heard on the issue,

the record is complete on it, and our review of the district court's decision would be de novo anyway, we will

decide the issue ourselves instead of remanding it for decision by the district court in the first instance. See

Macklin v. Singletary, 24 F.3d 1307, 1311-13 (11th Cir.1994) (optimal circumstance for court of appeals to

decide an issue the district court did not reach is where the standard of review is de novo, the record is

complete, and the parties have had an opportunity to address the issue).

         "The determination of personal jurisdiction over a nonresident defendant requires a two-part analysis.

First, we consider the jurisdictional question under the state long-arm statute. If there is a basis for the

assertion of personal jurisdiction under the state statute, we next determine whether sufficient minimum

contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment so that maintenance of the suit

does not offend traditional notions of fair play and substantial justice." Madara v. Hall, 916 F.2d 1510, 1514

(11th Cir.1990) (internal citations and quotation marks omitted). Walter bears the burden of establishing that

the district court had jurisdiction over Blue Cross of Wisconsin. See Familia De Boom v. Arosa Mercantil,
S.A., 629 F.2d 1134, 1138 (5th Cir.1980) ("The burden is on the plaintiff to establish jurisdiction when

challenged by the defendant.").

        Florida law contains a long-arm statute, known as the Unauthorized Insurers Process Law,

specifically designed to subject out-of-state insurers who are unauthorized to do business in Florida to the

jurisdiction of the Florida courts in defined circumstances. See Fla. Stat. Ann. § 626.901 et seq. (West 1996

& Supp.1999). "The purpose of the Unauthorized Insurers Process Law is to subject certain insurers and

persons representing or aiding such insurers to the jurisdiction of the courts of this state in suits by or on

behalf of insureds or beneficiaries under insurance contracts." Fla. Stat. Ann. § 626.905 (West 1996). The

statute lists a number of acts which may subject an unauthorized insurer to the jurisdiction of the Florida

courts by allowing substituted service of process:

        Any of the following acts in this state, effected by mail or otherwise, by an unauthorized foreign
        insurer, alien insurer, or person representing or aiding such an insurer is equivalent to and shall
        constitute an appointment by such insurer or person representing or aiding such insurer of the
        Insurance Commissioner and Treasurer, and his or her successor or successors in office, to be its true
        and lawful attorney, upon whom may be served all lawful process in any action, suit, or proceeding
        instituted by or on behalf of an insured or beneficiary, arising out of any such contract of insurance;
        and any such act shall be signification of the insurer's or person's agreement that such service of
        process is of the same legal force and validity as personal service of process in this state upon such
        insurer or person representing or aiding such insurer:

        (1) The issuance or delivery of contracts of insurance to residents of this state or to corporations
        authorized to do business therein;

        (2) The solicitation of applications for such contracts;

        (3) The collection of premiums, membership fees, assessments, or other considerations for such
        contracts; or

        (4) Any other transaction of insurance.

Fla. Stat. Ann. § 626.906 (West 1996 & Supp.1999). The reach of this statute is, of course, a question of

Florida law. See Madara, 916 F.2d at 1514.

        Walter argues that the district court had jurisdiction over Blue Cross of Wisconsin under § 626.906,

because Blue Cross collected premiums sent from Florida and made payments to health care providers in
Florida for almost thirty years.4 Blue Cross responds that the Walters received their insurance policy while

they lived in Wisconsin, and the third party administrator agreement it operates under prohibits Blue Cross

from terminating the Walters' policy because they moved to Florida.

        Florida cases interpreting § 626.906 focus on whether a nonresident insurer made a deliberate and

voluntary choice to do business in Florida. For example, a nonresident insurer is not subject to suit in Florida

simply because an insured paid premiums from Florida. See Kanawha Ins. Co. v. Morrison, 394 So.2d 1147,

1147 (Fla.Dist.Ct.App.1981) ("Payment of premiums for life insurance by mail from Florida to a foreign

insurer is ... insufficient to justify in personam jurisdiction over the foreign insurer."); Parliament Life Ins.

Co. v. Eglin Nat'l Bank, 333 So.2d 517, 518 (Fla.Dist.Ct.App.1976) (premium payments by insureds who

moved to Florida did not establish jurisdiction). For personal jurisdiction to attach, the insurer must issue or

deliver the original policy in Florida, see Kanawha, 394 So.2d at 1147 (limiting jurisdiction under § 626.906

to cases "where the insurance contract is entered into or delivered in the State of Florida"), or reissue or

amend the policy after the insured has moved to Florida. See First Georgia Ins. Co. v. Lloyd, 557 So.2d 138,

138 (Fla.Dist.Ct.App.1990) ("With knowledge that the insured had become a Florida resident, the insurer

increased its coverage on the insured automobile, and collected a premium for the additional coverage. That

was sufficient to establish jurisdiction...."); Citizens Ins. Co. of Am. v. Bowman, 525 So.2d 991, 991

(Fla.Dist.Ct.App.1988) ("[T]he insurer's act of reissuing the policy to a known Florida resident ... is an act

which subjects the company to the jurisdiction of the Florida court."). This principle does not apply,

however, if the renewal or extension is compelled by law. See Bookman v. KAH Incorporated, Inc., 614

So.2d 1180, 1182-83 (Fla.Dist.Ct.App.1993) (no personal jurisdiction where renewal was compelled by

COBRA).




    4
      Florida law also contains a general long-arm statute listing acts which subject a person to the
jurisdiction of the Florida courts. See Fla. Stat. Ann. § 48.193 (West 1994 & Supp.1999). We need not
address Blue Cross of Wisconsin's argument that Walter did not establish jurisdiction under that statute,
however, because Walter did not assert it as a basis for jurisdiction in the district court or in this Court.
         In this case, the Walters received their insurance policy from Blue Cross of Wisconsin while they

were in Wisconsin and were residents there. After they moved to Florida, Blue Cross of Wisconsin continued

to collect premiums and pay claims, but it never reissued or amended the policy. Blue Cross could not

terminate the Walters' policy, even after they had moved to Florida. Thus, under Florida law, the district

court did not have personal jurisdiction over Blue Cross.

        Walter argues that this case cannot be distinguished from Springer v. Blue Cross & Blue Shield of

Florida, Inc., 695 So.2d 944 (Fla.Dist.Ct.App.1997), a case in which Florida courts were held to have

personal jurisdiction over an out-of-state insurer who had accepted premiums and paid claims in Florida for

ten years. But that is not all the insurer in Springer had done; it had also issued the insured an amended

policy after she moved to Florida. See id. at 946-47 ("Under Lloyd and Bowman, Blue Cross' 1994 issuance

of its amended policy to appellant in Florida, and subsequent collection of premiums, are sufficient contacts

with Florida to subject it to suit in this forum under [§ 626.906]."). By contrast, Walter does not contend that

Blue Cross of Wisconsin renewed or amended the policy after she and her husband moved to Florida. The

Springer court did not address the situation we have in this case, and instead explicitly stated it would not

decide whether merely receiving premiums and making payments for ten years was enough to confer

jurisdiction over the insurer. See id. at 946.

         Walter argues that the district court had jurisdiction over Blue Cross under § 626.906(3), which

explicitly lists the collection of premiums as an act that subjects a foreign insurer to suit in Florida, and §

626.906(4), which covers "[a]ny other transaction of insurance." Florida courts, however, have limited the

application of § 626.906 to insurance policies issued or delivered in Florida. See Bookman, 614 So.2d at

1182 ("[T]he statute only applies to policies held by Florida residents which are issued and delivered to them

in Florida."); Kanawha, 394 So.2d at 1147 (limiting § 626.906(3) "to a situation where the insurance contract

is entered into or delivered in the State of Florida").5 We adopted a similar limitation for an earlier version


    5
     Although a later Florida decision applied § 626.906(4) to an insurance policy held by a
non-resident, that case did not question the requirement that the policy be issued or delivered in Florida.
See Winterthur Int'l, Ltd. v. Palacios, 559 So.2d 1214, 1215-16 (Fla.Dist.Ct.App.1990) (policy issued in
of § 626.906. See Parmalee v. Iowa State Traveling Men's Ass'n, 206 F.2d 518, 522 (5th Cir.1953) ("We

construe the legislation to apply only to policies of insurance delivered in Florida to Florida residents.").

Thus, an out-of-state insurer cannot be haled into Florida court under § 626.906 simply because it accepts

premiums from Florida on an insurance policy issued and delivered in another state. See Kanawha, 394 So.2d

at 1147; Parliament, 333 So.2d at 518.

        Because we conclude that the district court did not have jurisdiction over Blue Cross of Wisconsin

under § 626.906, we need not determine whether it had sufficient minimum contacts with Florida to satisfy

the Due Process Clause. Blue Cross of Wisconsin's motion to dismiss for lack of personal jurisdiction is due

to be granted on that basis instead of for reasons having to do with the untimeliness of the opposition to that

motion.6

                                             IV. CONCLUSION

        For the foregoing reasons, we VACATE the district court's judgment dismissing this case for failure

to file a timely motion in opposition to the motion to dismiss, and REMAND the case to the district court with

instructions to dismiss the case for lack of jurisdiction. The new judgment should specify that the dismissal

is without prejudice to Walter's pursuit of the same or related causes of action in a court which has jurisdiction

over Blue Cross of Wisconsin.




Florida).

    6
      Because we conclude that the district court did not have jurisdiction over Blue Cross of Wisconsin,
we need not address Blue Cross of Wisconsin's argument that, as third-party administrator of a state
health plan, it was not a proper party.
