                                               [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    ________________________            FILED
                                               U.S. COURT OF APPEALS
                          No. 04-13817           ELEVENTH CIRCUIT
                      Non-Argument Calendar           April 19, 2005
                    ________________________      THOMAS K. KAHN
                                                        CLERK
              D. C. Docket No. 02-00898-CV-ORL-19-KRS


NATIONAL RAILROAD PASSENGER CORPORATION,

                                                Plaintiff-Appellee,
    versus


PATCO TRANSPORT, INC.,
                                                Defendant-
                                                Third-Party Plaintiff-
                                                Appellee,

MANUEL IRIZARRY,

                                                Defendant-Appellee,


    versus

DOLLY TRANS FREIGHT,

                                                Third-Party Defendant-
                                                Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (April 19, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Appellee, National Railroad Passenger Corporation (“Appellee”), brought

suit against Appellants, Patco Transport, Inc (“Patco”) and Manuel Irizarry

(“Irizarry”), under Florida’s dangerous instrumentality doctrine and the theory of

respondeat superior for damages resulting from a collision on July 13, 2001,

between one of Appellee’s passenger trains and a 1994 Mack truck beneficially

owned by Appellant Patco.

      On June 20, 2003, Patco filed a Third-Party Complaint against Dolly

seeking indemnification that was served on Dolly on September 24, 2003. The

Clerk of Court entered a default judgment on October 31, 2003 due to Dolly’s

failure to appear or to serve any paper in the action. The district court granted

Patco’s Motion for Default Judgment and Final Judgment was entered against

Dolly in the amount of $232,318.20. The district court denied Dolly’s Motion to

Set Aside Default Judgment. Dolly brings this appeal arguing that its Motion to

                                          2
Set Aside Default Judgment should be entered because its failure to reply to the

Third-Party Complaint was due to excusable neglect.

      We review the district court’s denial of a motion to set aside a default

judgment for an abuse of discretion. See Gibbs v. Air Canada, 810 F.2d 1529,

1537 (11th Cir. 1987). To prevail on its Motion to Set Aside Default Judgment

under Fed. R. Civ. P. 60(b), Dolly must show (1) a meritorious defense, (2) lack of

prejudice to the non-defaulting party, and (3) a good reason for failing to reply to

the complaint. In re Worldwide Web Sys., Inc. v. Feltman, 328 F.3d 1291, 1295

(11th Cir. 2003). “On motion and upon such terms as are just, the court may

relieve a party or a party’s legal representative from a final judgment, order, or

proceeding . . . mistake, inadvertence, surprise, or excusable neglect . . . .” Fed. R.

Civ. P. 60(b)(1).

      In support of its motion, Dolly argues that it had established adequate

procedural safeguards to ensure that any service of process would be appropriately

handled by its insurance company. Dolly further contends that the employee who

was usually in charge of this process had recently been deployed to Iraq and the

new secretary mistakenly or inadvertently violated Dolly’s procedures by creating

a litigation file and including the Complaint in that file rather than forwarding it

on to Dolly’s insurance company and that this constitutes excusable neglect. This

                                           3
procedure proved to be inadequate as Dolly did not respond to the complaint or

anything else that was filed in this case for over six months. The district court

determined, and we agree, that Dolly did not have an adequate procedure for

following up with its insurance company to inquire as to whether a complaint had

been received and was being pursued.

       Our Circuit precedent indicates that “[d]efault that is caused by the

movant’s failure to establish minimum procedural safeguards for determining that

action in response to a [complaint] is being taken does not constitute default

through excusable neglect.” Id. (citing Davis v. Safeway Stores, Inc., 532 F.2d

489, 490 (5th Cir. 1976)).1

       Under our precedent, Dolly’s failure to respond to the Third-Party

Complaint because of a lack of minimum procedural safeguards for responding to

complaints in a legal action does not constitute excusable neglect. Finding that the

district court did not abuse its discretion in denying Dolly’s Motion to Set Aside

Default Judgment, we affirm the district court’s order.

AFFIRMED.




       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.

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