                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT                       February 4, 2004

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                No. 03-10755
                              Summary Calendar


                                 DAVID DRINNON,

                                                       Plaintiff-Appellee,

                                     versus

                        ALLSTATE INSURANCE COMPANY,

                                                      Defendant-Appellant.


          Appeal from the United States District Court
               for the Northern District of Texas
                          (1:03-CV-045)


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

PER CURIAM:*

     Allstate Insurance Company appeals the denial of its Rule

60(b) motion to vacate the default judgment entered against it pre-

removal in     state    court.     The   district   court   determined    that

Allstate’s failure in state court to answer plaintiff’s complaint

by the filing deadline, resulting in the entry of a default

judgment, was the result of inexcusable neglect.

     On 2 July 2001, David Drinnon filed a state court action

against Allstate, claiming, inter alia, breach of contract and



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
violations of the Texas Deceptive Trade Practices Act and the Texas

Insurance Code.     Allstate was served with process on 13 February

2003; its deadline to answer timely was 10 March 2003.

     On 13 March, the state court held a default judgment trial,

reviewing Drinnon’s documentary evidence and live testimony. On 14

March, that court entered a final judgment by default against

Allstate.

     Allstate filed both its notice of removal and its original

answer on 14 March (the day the state court default judgment was

entered), followed by an amended answer on 24 March.               On 24 March,

Allstate also      moved   in   district    court    to   vacate   the   default

judgment that had been entered in state court; the motion was

denied.

     We   review    for    abuse   of   discretion    the   district     court’s

determination that the default judgment should not be set aside.

See CJC Holdings, Inc. v. Wright & Lato, Inc., 979 F.2d 60, 63 (5th

Cir. 1992); FED. R. CIV. P. 60(b).           Allstate asserts that David

Charles, a claims representative for another entity, Allstate

Property and Casualty Company, mistakenly calculated the filing

date for Allstate’s answer to be 17 March instead of the correct 10

March date.   Allstate contends this mistake caused the untimely

filing on 14 March and constitutes excusable neglect.              “[W]e do not

require the district court to find a ‘willful’ failure to respond

in order to deny a Rule 60(b)(1) motion.            Contrary to [Allstate’s]



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position on appeal, the district court properly focused on whether

[Allstate] acted culpably and not whether it acted willfully”.

Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d at 933, 943

(5th Cir. 1999).     If a defendant’s negligence was “at least a

partial cause of its failure to respond, the defendant [has] the

burden to convince the court that its neglect was excusable”.      Id.

at 939.    The district court determined that Allstate’s failure to

respond was the result of its inexcusable neglect and dilatory

conduct.

     Rule 60(b)(1) provides as guidelines for setting aside a

default judgment:   (1) the merits of the defendant’s defenses; (2)

the culpability of the defendant’s conduct; and (3) the extent of

prejudice suffered by the plaintiff.     But “[t]hese factors are not

‘talismanic.’ A district court may consider other factors, and the

decision of whether to grant relief under Rule 60(b)(1) falls

within its sound discretion”.         Id. at 939 (internal citations

omitted).

     Essentially for the reasons stated by the district court in

its detailed opinion, it did not abuse its discretion by concluding

that the default judgment should not be vacated under Rule 60(b).

                                                        AFFIRMED




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