     Case: 13-11035      Document: 00513074575        Page: 1     Date Filed: 06/10/2015



           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                     No. 13-11035
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                                June 10, 2015

EDDIE WOOTEN,                                                                  Lyle W. Cayce
                                                                                    Clerk
                                          Plaintiff–Appellee,

v.

MCDONALD TRANSIT ASSOCIATES, INCORPORATED,

                                          Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas


Before SMITH, WIENER, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
       Treating the petition for rehearing en banc as a petition for panel
rehearing, see Internal Operating Procedure accompanying 5th CIR. R. 35, the
petition for panel rehearing is GRANTED.
       We previously issued an opinion assessing whether evidence adduced
at a default-judgment “prove-up” hearing can cure a facially deficient
complaint, a question this Court left open forty years ago in Nishimatsu
Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th Cir. 1975). 1
See Wooten v. McDonald Transit Assocs., Inc., 775 F.3d 689 (5th Cir. 2015).
Upon reconsideration, we withdraw the prior opinion in its entirety and
replace it with the following.


       1 See id. at 1206 n.5 (“We do not consider here the possibility that otherwise fatal
defects in the pleadings might be corrected by proof taken by the court at a hearing.”).
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                                  No. 13-11035
      Plaintiff–Appellee Eddie Wooten filed suit against his former employer,
Defendant–Appellant McDonald Transit Associates, Inc., under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634, alleging
discrimination and retaliation.       McDonald Transit never answered or
defended the suit. The clerk entered default against McDonald Transit, and,
after holding a damages hearing in which Wooten provided live testimony,
the district court entered default judgment for Wooten. McDonald Transit
filed a motion to set aside the default judgment, which the district court
denied. Although Wooten’s complaint contained very few factual allegations,
we conclude that it met the low threshold of content demanded by Federal
Rule of Civil Procedure 8 because it provided McDonald Transit with fair
notice of Wooten’s claims. The complaint was therefore sufficient, both on its
own and in combination with the evidence presented at the prove-up hearing,
to support the default judgment. Additionally, we see no clear error in the
district court’s finding that McDonald Transit’s default was willful, justifying
the denial of relief under Rules 55(c) and 60(b). As there was no abuse of
discretion in either the district court’s entry of default judgment or its refusal
to set aside that judgment, we affirm.
                              I. BACKGROUND
      On June 22, 2012, Wooten sued McDonald Transit in federal court,
alleging discrimination on the basis of his age and retaliation after he made a
claim of age discrimination. In his complaint, Wooten alleged that he was a
former employee of McDonald Transit, where he had worked from 1999 until
May 1, 2011. At the time he was fired, he worked as a Class B Mechanic. He
further alleged:
      In October 2010, [Wooten] made a claim to the Equal
      Employment Opportunity Commission for age discrimination.
      After the claim was made and continuing until [his] employment

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                                No. 13-11035
      ended, [McDonald Transit], in violation of the ADEA,
      discriminated and retaliated against [Wooten], and created a
      hostile work environment, until such time that Plaintiff was
      constructively discharged on or about May 1, 2011.
      The district clerk issued a summons the same day that Wooten filed his
complaint.   On July 18, 2012, Wooten returned the summons with an
affidavit of service indicating that service had been executed on July 5 on
McDonald Transit’s president and registered agent, Robert T. Babbitt, by
certified mail, return receipt requested. But the return receipt indicated that
process had in fact been served on Brenda Roden, another McDonald Transit
officer. After McDonald Transit failed to appear, plead, or otherwise defend
Wooten’s suit, the district clerk entered default against McDonald Transit on
October 30, 2012, and Wooten moved for a default judgment.
      The district court held a hearing on the motion in December 2012, but
took issue with the fact that Roden, not Babbitt, had been served. The court
adjourned the hearing so that Wooten could attempt proper service on
Babbitt again. The district clerk issued new summons, and Wooten returned
with a new affidavit of service indicating service had been executed by
personal delivery on Babbitt on January 17, 2013. Again McDonald Transit
failed to appear, answer, or defend; again the district clerk entered default;
and again Wooten moved for a default judgment.
      The district court held a hearing on whether to enter default judgment
on June 7. At that hearing, which the court expressly designated “a hearing
to prove up damages for a default judgment,” Wooten provided testimony that
elaborated on his factual allegations.    He testified that he was born in
January 1956, making him fifty-four years old at the time he made his claim
to the EEOC. He explained that during his tenure at McDonald Transit, he
had been promoted from the position of Class B Mechanic to the position of

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                                  No. 13-11035
Shop Foreman, and he had “never” been “wr[itten] up” or “reprimanded.” He
also described his retaliation claim in greater detail: he was demoted from
Shop Foreman, lowering his pay by $2 an hour; he was given menial work;
his hours were changed; and he was denied opportunities for additional job-
related certification.     This treatment, he said, persisted for “about six
months.” The district court entered a default judgment that same day.
      McDonald Transit filed a motion to set aside the default judgment on
June 18. In an affidavit accompanying the motion, Babbitt averred that he
was never served with process, that he had not learned of the suit naming
McDonald Transit as a defendant until June 11, and that he retained counsel
to challenge the default judgment soon afterward.
      McDonald Transit challenged the judgment on numerous grounds
under Federal Rules of Civil Procedure 55(c) and 60(b).           In particular,
McDonald Transit invoked Rule 60(b)(1) (mistake, inadvertence, surprise, or
excusable neglect); (b)(3) (fraud, misrepresentation, or misconduct by an
opposing party); (b)(4) (the judgment is void); and (b)(6) (any other reason
that justifies relief). In asking the court to set aside the default judgment
under Rule 60(b)(1), McDonald Transit claimed that it was not Wooten’s
employer; that Wooten had failed to obtain a right-to-sue letter before suing
McDonald Transit; and that Wooten had failed to file suit within the required
time from the issuance of a right-to-sue letter.       McDonald Transit also
asserted that it was not properly served and therefore had not willfully
disregarded its duty to respond. In response, Wooten argued that McDonald
Transit had failed to offer any explanation for its default, failed to produce
sufficient evidence of a meritorious defense, and relied on Babbitt’s
uncorroborated and self-serving statements.



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                                 No. 13-11035
      The district court denied McDonald Transit’s motion to set aside the
default judgment. Based on evidence of service of process to Babbitt and
Roden (who the court had learned was a vice president of McDonald Transit),
the court inferred that McDonald Transit had knowingly and intentionally
failed to answer or otherwise defend against the complaint. The court further
rejected McDonald Transit’s claim to raise meritorious defenses on the
grounds that the “record is far from conclusive” and these defenses were
effectively waived by failing to answer the complaint.
      McDonald Transit timely appealed both the default judgment and the
order denying its motion to set aside the default judgment.
           II. JURISDICTION AND STANDARD OF REVIEW
      Wooten sued McDonald Transit for violations of federal law under the
ADEA; accordingly, the district court had subject-matter jurisdiction under
28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
      We review the entry of a default judgment for abuse of discretion. U.S.
for the Use of M–CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1013
(5th Cir. 1987). Rule 55(c) provides that a district court “may set aside an
entry of default for good cause” and “may set aside a default judgment under
Rule 60(b).” Correspondingly, we also review the district court’s refusal to set
aside a default judgment for abuse of discretion. Lacy v. Sitel Corp., 227 F.3d
290, 291–92 (5th Cir. 2000); Shipco, 814 F.2d at 1013.            “Any factual
determinations underlying that decision,” including a finding of willful
default, “are reviewed for clear error.” Lacy, 227 F.3d at 292; see Dierschke v.
O’Cheskey (In re Dierschke), 975 F.2d 181, 184 (5th Cir. 1992).
      Yet, we undertake this review with a grain of salt. “Because of the
seriousness of a default judgment, and although the standard of review is
abuse of discretion, even a slight abuse of discretion may justify reversal.” In

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                                  No. 13-11035
re Chinese-Manufactured Drywall Prods. Liab. Litig., 742 F.3d 576, 594 (5th
Cir. 2014) (quoting Lacy, 227 F.3d at 292). Review of a default judgment puts
competing policy interests at play. On one hand, “[w]e have adopted a policy
in favor of resolving cases on their merits and against the use of default
judgments.”     Id.    On the other, this policy is “counterbalanced by
considerations of social goals, justice and expediency, a weighing process that
lies largely within the domain of the trial judge’s discretion.” Id. (quoting
Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999))
(alterations and internal quotation marks omitted).
                               III. DISCUSSION
      On appeal, McDonald Transit raises two principal issues: (1) whether
the district court erred in entering a default judgment and (2) whether the
district court erred in denying McDonald Transit’s motion to set aside the
judgment.
A.    The Entry of the Default Judgment
      “A default judgment is unassailable on the merits but only so far as it is
supported by well-pleaded allegations, assumed to be true.” Nishimatsu, 515
F.2d at 1206 (citing Thomson v. Wooster, 114 U.S. 104, 113 (1885)).             Put
another way, “[t]he defendant is not held to admit facts that are not well-
pleaded or to admit conclusions of law.”        Id.   “On appeal, the defendant,
although he may not challenge the sufficiency of the evidence, is entitled to
contest the sufficiency of the complaint and its allegations to support the
judgment.” Id. In addition, a court “may conduct hearings . . . when, to enter
or effectuate judgment,” it needs to, inter alia, “establish the truth of any
allegation by evidence . . . or . . . investigate any other matter.” Fed. R. Civ. P.
55(b)(2)(C); see also 10A Charles A. Wright et al., Federal Practice & Procedure
§ 2688 (3d ed. 1998) (“[W]hen it seems advantageous, a court may conduct a

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                                      No. 13-11035
hearing to determine whether to enter a judgment by default. . . . [T]he court,
in its discretion, may require some proof of the facts that must be established
in order to determine liability.”).
       Neither party disputes that entry of default was appropriate.                    The
parties disagree about (1) the ADEA standard that governs Wooten’s claim;
(2) the sufficiency of Wooten’s allegations; and (3) whether the district court
can consider evidence presented at the hearing in addition to the allegations
in supporting default judgment.
       1.     The ADEA Framework
       McDonald Transit contends that Wooten’s complaint insufficiently
alleged the essential elements of his prima facie retaliation claim under the
ADEA—in particular, membership in a protected class and qualification.
       The ADEA makes it unlawful “for an employer to discriminate against
any of his employees . . . because such individual . . . has opposed any practice
made unlawful by this section, or because such individual . . . has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). To establish
a prima facie retaliation claim under the ADEA, a plaintiff “must show (1) that
he engaged in a protected activity, (2) that there was an adverse employment
action, and (3) that a causal link existed between the protected activity and the
adverse employment action.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d
254, 259 (5th Cir. 2001). Holtzclaw unequivocally added a fourth element to
the claim—a plaintiff who sought re-employment under the ADEA must prove
as a part of his prima facie case that he was qualified for his position. Id. 2


       2 The Holtzclaw court reasoned that because qualification for the job is a requirement
to make a prima facie discrimination claim under the ADEA, and because “[r]etaliation
claims are nothing more than a protection against discrimination,” “it would be illogical not
to require one here.” 255 F.3d at 259. Burlington Northern & Santa Fe Railway Co. v. White,
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                                       No. 13-11035
       Contrary to McDonald Transit’s position, neither § 623(d) nor Holtzclaw
requires that Wooten prove he was a member of a class protected by the ADEA
discrimination provisions.          Compare 29 U.S.C. § 631 (defining class of
individuals covered by age-discrimination provisions), with id. § 623(d)
(permitting retaliation provision to apply to “any” employee). Therefore, the
only elements that Wooten must sufficiently allege are (1) protected activity,
(2) adverse employment action, (3) causal link, and (4) qualification.




548 U.S. 53 (2006), casts doubt on this reasoning. In that Title VII retaliation case, the Court
examined the relationship between that statute’s discrimination and retaliation provisions.
See id. at 61–67. The Burlington Court found that the provisions featured different language
and responded to different purposes—namely, “[t]he substantive [discrimination] provision
seeks to prevent injury to individuals based on who they are, i.e., their status[, whereas t]he
antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e.,
their conduct.” Id. at 63. It therefore concluded that the discrimination and retaliation
provisions were not “coterminous” and “reject[ed] the standards applied in the Courts of
Appeals that have treated the antiretaliation provision as forbidding the same conduct
prohibited by the antidiscrimination provision.” Id. at 67. Nevertheless, because Burlington
addressed Title VII rather than the ADEA, it did not “unequivocally overrule” Holtzclaw, and
we remain bound to apply that case. See Tech. Automation Servs. Corp. v. Liberty Surplus
Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) (internal quotation marks omitted); cf. United
States v. Short, 181 F.3d 620, 624 (5th Cir. 1999) (“[T]his panel is bound by the precedent of
previous panels absent an intervening Supreme Court case explicitly or implicitly overruling
that prior precedent . . . .” (emphasis added)).
        We observe that our Court has not consistently required plaintiffs to prove
qualification under Holtzclaw after Burlington. See, e.g., Munoz v. Seton Healthcare, Inc.,
557 F. App’x 314, 321 (5th Cir. 2014) (per curiam) (citing Holtzclaw for the elements of a
prima facie case of retaliation under the ADEA but omitting the qualification element); Pree
v. Farmers Ins. Exch., 552 F. App’x 385, 388 (5th Cir. 2014) (per curiam) (same); Miller v.
Metro Ford Auto. Sales, Inc., 519 F. App’x 850, 851–52 (5th Cir. 2013) (per curiam) (same).
Moreover, even before Burlington, a panel of our Court “decline[d] to extend the Holtzclaw
requirements” to a case involving wrongful discharge, though that case was before us on
appeal from judgment as a matter of law and there “ha[d] been no determination that [the
plaintiff] . . . was not qualified.” EEOC v. Dunbar Diagnostic Servs. Inc., 92 F. App’x 83,
84–85 (5th Cir. 2004) (per curiam). We need not decide whether Holtzclaw remains viable,
however, because—as explained below—we hold that Wooten’s complaint satisfies the
minimal pleading requirements of Rule 8 regardless of whether “qualification” is a
necessary element of his prima facie case.
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                                 No. 13-11035
      2.    The Sufficiency of the Pleadings to Support the Judgment
      We begin by determining whether Wooten’s complaint, either standing
alone or considered together with his testimony at the hearing, supplied an
adequate foundation for the default judgment. We conclude that Wooten’s
complaint, although admittedly light on factual details, advanced a colorable
claim for relief and provided McDonald Transit with the requisite notice to
satisfy Rules 8 and 55. Given that the complaint itself met the minimum
standards of Rule 8, we decide that the testimony at the prove-up hearing
served the limited purpose of “establish[ing] the truth of [the] allegation[s] by
evidence,” Fed. R. Civ. P. 55(b)(2)(C), and therefore may be considered in
assessing the entry of default judgment without implicating the Nishimatsu
quandary, see 515 F.2d at 1206 n.5.
      Despite announcing that a default judgment must be “supported by well-
pleaded allegations” and must have “a sufficient basis in the pleadings,” the
Nishimatsu court did not elaborate on these requirements. See id. at 1206.
Nothing in the record or the parties’ briefs discusses how to determine what is
“well-pleaded” or “sufficient,” and we have found no guidance in our own cases.
Nevertheless, we draw meaning from the case law on Rule 8, which sets forth
the standards governing the sufficiency of a complaint.
      Rule 8(a)(2) requires a pleading to contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” The purpose of this
requirement is “to ‘give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The factual
allegations in the complaint need only “be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”     Id. (footnote and citations

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                                        No. 13-11035
omitted). “[D]etailed factual allegations” are not required, but the pleading
must present “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3
       Wooten’s      complaint      contains       the   following     factual    allegations:
(1) Wooten is a former employee of McDonald Transit; (2) Wooten was
employed by McDonald Transit from 1999 until May 1, 2011; (3) at the time
he was fired, Wooten was a Class B mechanic earning $19.50 per hour, plus
benefits; (4) in October 2010, Wooten filed an age-discrimination claim with
the EEOC, after which McDonald Transit “discriminated and retaliated
against [Wooten], and created a hostile work environment, until such time
that [Wooten] was constructively discharged on or about May 1, 2011”; and
(5) McDonald Transit’s unlawful conduct caused Wooten harm, including
damages in the form of lost wages and benefits, mental anguish, and non-
economic damages.
       We hold that these allegations, while perhaps less detailed than
McDonald Transit would prefer, are nevertheless sufficient to satisfy the low
threshold of Rule 8. Wooten’s complaint provides McDonald Transit with
“fair notice” of his claim that McDonald Transit engaged in conduct
prohibited by the ADEA—discrimination and retaliation—in response to the
age-discrimination charge he filed with the EEOC. See Twombly, 550 U.S. at
555. The allegations are a far cry from the sort of “unadorned, the-defendant-
unlawfully-harmed-me accusation” decried in Iqbal.                   See 556 U.S. at 678.


       3   Although most cases addressing Rule 8 arise in the context of a Rule 12(b)(6) motion
to dismiss, we recognize that a defendant ordinarily must invoke Rule 12 in order to avail
itself of that rule’s protections. See Fed. R. Civ. P. 12(b) (“[A] party may assert the following
defenses by motion . . . .”). Accordingly, as a default is the product of a defendant’s inaction,
we decline to import Rule 12 standards into the default-judgment context. Cf. Iqbal, 556 U.S.
at 678 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” (emphasis added)
(quoting Twombly, 550 U.S. at 570)).
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                                   No. 13-11035
They indicate that Wooten worked for McDonald Transit for twelve years; he
filed an EEOC charge accusing McDonald Transit of age discrimination
during his eleventh year of employment; McDonald Transit took adverse
actions against Wooten in retaliation for that charge; and within seven
months Wooten found his work conditions so intolerable that he was
constructively discharged.
         Admittedly, Wooten’s complaint could have specified the nature of the
discrimination and the retaliation he experienced; but his allegations are not
so vague that McDonald Transit lacked notice of the contours of Wooten’s
claim.       Indeed, as Wooten points out, the illustrative civil rules forms
published with the Federal Rules of Civil Procedure provide even less factual
detail than the complaint at issue here: Form 11, a sample complaint for
negligence, alleges only that “[o]n date, at place, the defendant negligently
drove a motor vehicle against the plaintiff” and “[a]s a result, the plaintiff was
physically injured, lost wages or income, suffered physical and mental pain,
and incurred medical expenses of $_____.” Fed. R. Civ. P. app. Form 11. The
content of this form also undermines the premise that the complaint must
explicitly include every element of the plaintiff’s prima facie case to satisfy
Rule 8; the form contains no reference to a legal duty or proximate cause, two
elements of a prima facie case for negligence. See Restatement (Third) of
Torts: Liab. for Physical and Emotional Harm § 6 cmt. b (2009). Rather, all
elements of the cause of action are present by implication. The same holds
true here: Wooten’s complaint alleges (1) a protected activity (filing an EEOC
charge), 4 (2) adverse employment actions (discrimination, retaliation, and




        Filing a discrimination charge with the EEOC qualifies as a protected activity
         4

under the ADEA. See 29 U.S.C. § 623(d).
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                                        No. 13-11035
creation of a hostile work environment), 5 (3) a causal link (the adverse actions
commencing after Wooten filed the EEOC charge and occurring, at most, seven
months later), 6 and (4) qualification (twelve years of continuous employment). 7
       Moreover, if McDonald Transit believed that Wooten’s allegations were
inadequate to support the requested relief or even to enable an intelligent
response, it simply could have moved for a more definite statement or to
dismiss the case for failure to state a claim. See Fed. R. Civ. P. 12(b)(6), (e).
       In view of the above, we hold that Wooten’s complaint is “well-pleaded”
for default-judgment purposes. As such, we have little difficulty concluding



       5   To establish an adverse employment action, the plaintiff must show that “a
reasonable employee would have found the challenged action materially adverse, which in
this context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington, 548 U.S. at 68 (internal quotation
marks omitted).
        6 In Clark County School District v. Breeden, 532 U.S. 268 (2001) (per curiam), the

Supreme Court made clear that a narrow band of retaliation claims can establish causation
by the “very close” temporal proximity alone. See id. at 273 (collecting cases fulfilling this
requirement based on three- and four-month delays). But see Strong v. Univ. Healthcare
Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (“Breeden makes clear that . . . temporal
proximity alone, when very close, can in some instances establish a prima facie case of
retaliation. But we affirmatively reject the notion that temporal proximity standing alone
can be sufficient proof of but for causation.” (citation omitted)).
        7 Although Holtzclaw made qualification for the job an additional requirement, it did

not explain how to evaluate that requirement. See 255 F.3d at 260. Nevertheless, a review
of our ADEA jurisprudence indicates that “qualified” has a broadly colloquial meaning in
this context; it refers to objective job qualifications (e.g., training, experience, and physical
capacity), not “essential functions” or any other term of art associated with the term’s
counterpart in the Americans with Disabilities Act. See, e.g., Berquist v. Wash. Mut. Bank,
500 F.3d 344, 349–50 (5th Cir. 2007) (concluding that the plaintiff had made out a prima
facie case of ADEA discrimination by showing that he “possessed the same job qualifications
when [his employer] terminated him as when [it] assigned him to [his last] position,” as
evidenced by the employee meeting “the objective criteria listed in a job posting” and holding
a similar job title for two years); cf. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 &
n.3 (5th Cir. 1988) (holding that “a plaintiff challenging his termination or demotion [under
the ADEA] can ordinarily establish a prima facie case of age discrimination by showing that
he continued to possess the necessary qualifications for his job at the time of the adverse
action” and explaining that “[b]y this we mean that plaintiff had not suffered physical
disability or loss of a necessary professional license or some other occurrence that rendered
him unfit for the position for which he was hired”).
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                                       No. 13-11035
that the evidence received at the damages prove-up hearing served a
permissible purpose under Rule 55(b)(2)—to “establish the truth of any
allegation by evidence” or “investigate any other matter”—and we deem
Nishimatsu’s complaint-supplementation hypothetical inapplicable, see 515
F.2d at 1206 n.5.        Wooten’s testimony simply added factual details that
fleshed out his claim: for instance, his testimony that he had never been
disciplined served as further proof of his qualification, and his testimony that
he was demoted, given menial work, and denied opportunities for work-
related certification for approximately six months after he filed his EEOC
charge added specificity to the adverse-employment-action and causal-link
elements of his case. Considering this evidence in addition to the allegations
in Wooten’s complaint, we see ample grounds for the entry of default
judgment, and we hold that the district court did not abuse its discretion in
entering that judgment.
B.     The Refusal to Set Aside the Default Judgment
       On appeal, McDonald Transit renews its arguments for setting aside
the judgment under Federal Rule of Civil Procedure 60(b)(1) and (b)(6). 8 We
address these arguments in turn.
       1.     Rule 60(b)(1) Grounds for Setting Aside the Judgment
       “In determining whether good cause exists to set aside a default
judgment under Rule 60(b)(1) we examine the following factors: ‘whether the
default was willful, whether setting it aside would prejudice the adversary,
and whether a meritorious defense is presented.’” Jenkens & Gilchrist v.
Groia & Co., 542 F.3d 114, 119 (5th Cir. 2008) (quoting In re Dierschke, 975


       8 McDonald Transit says that it maintains its objections to the district court’s ruling
on the grounds of fraud under Rule 60(b)(3) and lack of personal jurisdiction under Rule
60(b)(4), but it fails to argue these points in its brief. We therefore deem these arguments
abandoned on appeal. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
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F.2d at 183); accord In re Chinese-Manufactured Drywall Prods., 742 F.3d at
594. “A finding of willful default ends the inquiry, for ‘when the court finds
an intentional failure of responsive pleadings there need be no other
finding.’” Lacy, 227 F.3d at 292 (quoting In re Dierschke, 975 F.2d at 184).
The defendant has the burden of showing by a preponderance of the evidence
that its neglect was excusable, rather than willful, In re Chinese-
Manufactured Drywall Prods., 742 F.3d at 594, and we review the district
court’s corresponding factual determination for clear error, In re Dierschke,
975 F.2d at 184.
      Here, the district court concluded that McDonald Transit willfully
defaulted. It reached this conclusion based on two facts: (1) Wooten properly
executed service of process on McDonald Transit and (2) McDonald Transit
offered no answer or other defense.        McDonald Transit contends that the
district court misapplied the standard for willfulness under Rule 60(b)(1).
McDonald Transit cites Jenkens & Gilchrist, 542 F.3d at 123, for the
proposition that “perfection of service is not determinative—the defendant’s
knowledge of the perfected service, and the defendant’s actions post-service
also play a role in measuring the willfulness of a defendant’s default.” By
this standard, McDonald Transit argues, it presented post-service evidence
that it did not default willfully.
      We are unpersuaded. If McDonald Transit is to be believed, its failure
to answer or defend even after supposedly proper process amounts to mere
mistake or inadvertence. But the company offers no explanation for what
happened between its presumed receipt of process and the date on which it
retained counsel to try to vacate the default judgment. It only reasserts that
service was not properly executed. Without any explanation from McDonald
Transit, the company has encroached on the sort of behavior we have decried

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                                  No. 13-11035
as “‘play[ing] games’ with the court.”       See In re Chinese-Manufactured
Drywall Prods., 742 F.3d at 595 (holding that the foreign defendant willfully
defaulted when it did not contest that it was served with the complaint and
did not provide any explanation for its default even when pressed at oral
argument); In re Dierschke, 975 F.2d at 183–84 (holding that the defendant
willfully defaulted when he admitted that he had received the complaint, but
explained that he had failed to respond because he was involved in another
suit and did not understand that he was being served in a new case). All
McDonald Transit can say is that it rushed to court as soon as it learned the
district court had entered a default judgment against it.         Yet this late-
breaking diligence pales in comparison to the kind of post-service conduct
that we have found to foreclose a finding of willfulness. See, e.g., Lacy, 227
F.3d at 292–93 (holding that the defendant’s default was not willful when its
counsel “made repeated contacts with [the plaintiff] in an attempt to resolve
the suit” and “made plain its intention not to agree to waiver of service and
its belief that service therefore had not yet been effected”). Indeed, despite
being served with process on two separate occasions nearly seven months
apart, there is no evidence that McDonald Transit made any effort to resolve
the matter before the entry of default judgment.
      Accordingly, we hold that McDonald Transit has not borne its burden
to show that its default was excusable, and we cannot say, on this record,
that the district court’s factual finding of willfulness was clearly erroneous.
      2.    Rule 60(b)(6) Grounds for Setting Aside the Judgment
      Under Rule 60(b)(6), a court may vacate a judgment for “any other
reason that justifies relief.”   Fed. R. Civ. P. 60(b)(6).    Though a “grand
reservoir of equitable power,” we exercise this power sparingly, granting



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                                  No. 13-11035
relief only in “extraordinary circumstances.” Hesling v. CSX Transp., Inc.,
396 F.3d 632, 642 (5th Cir. 2005) (internal quotation marks omitted).
      McDonald Transit attempts to flood this reservoir with points of error.
It collects all of its other claims for relief and asserts that together they make
it “inequitable” to impose a judgment awarding damages against it. This
argument fails because a movant must show any reason justifying relief
“other than the more specific circumstances set out in Rules 60(b)(1)–(5).”
Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (emphasis added).               All of
McDonald Transit’s claims are claims it has brought or is bringing under a
different Rule 60(b) base. Therefore, we hold that McDonald Transit has
failed to establish “extraordinary circumstances” justifying relief under Rule
60(b)(6), Hesling, 396 F.3d at 642, let alone an abuse of discretion in the
district court’s refusal to set aside the judgment, Lacy, 227 F.3d at 292.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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