U S Bank National Association ND v. Elender Escrow Inc et al

Filing 186

ORDER denying 181 Motion for Default Judgment. The Court will construe Stewart Title's response to the Motion for Default Judgment to include requests for an extension of time to answer, and that request will be granted. Stewart Title's time in which to file a timely answer is extended up to, and including, June 29, 2012, nunc pro tunc to December 5, 2011. Signed by Judge James M. Moody on 6/18/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

U.S. BANK NATIONAL ASSOCIATION ND

V.

CROSS-CLAIMANT

CASE NO. 4:11CV00123 JMM

ELENDER ESCROW, INC, ET AL.

CROSS-DEFENDANTS

CONSOLIDATED WITH

MARK AND KARLA GIBBS

V.

PLAINTIFFS

CASE NO. 4:10CV00293 JMM

PRIMELENDING, A PLAINS CAPITAL COMPANY, ET AL.

U.S. BANK NATIONAL ASSOCIATION ND

V.

DEFENDANTS

CROSS-CLAIMANT

CASE NO. 4:10CV00293 JMM

STEWART TITLE GUARANTY COMPANY, ET AL.

CROSS-DEFENDANTS

ORDER
U.S. Bank’s Motion for Default Judgment against Stewart Title Guaranty Company
(“Stewart Title”) based upon Stewart Title’s failure to file a timely answer to U.S. Bank’s First
Amended Complaint is denied (#181) for the following reasons.

1

Similarly situated Co-Defendants Netco, Inc., and Netco Title, Inc., filed timely answers
to the First Amended Complaint which inure to the benefit of Stewart Title under the common
defense doctrine. See Angelo Iafrate Const. v. Potashnick Const. , Inc., 370 F.3d 715, 722 (8th
Cir. 2004) (“The common-defense doctrine in Arkansas law similarly states that if an answering
party asserts “a defense on the merits that equally applies to the other defendant,” the success of
the defense “operates as a discharge to all the defendants.”).
Moreover there is no evidence that Stewart Title’s failure to file a timely answer after the
Court’s decision on the Motion to Dismiss was in anyway willful, contumacious or intentional.
See Moore v. American Standard, Inc., 170 Fed. Appx. 16 (8th Cir. 2006) (citing Ackra Direct
Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (default judgment for failure to
defend under Fed.R.Civ.P. 55 is appropriate if conduct is “willful, contumacious or intentional”).
Lastly, The Court finds that Stewart Title has sufficiently presented responsive pleadings
by filing a March 7, 2012 Joint Rule 26(f) Report and a June 8, 2011 Motion to Dismiss U.S.
Bank’s First Amended Complaint that contained a general denial of all U.S. Bank’s claims.
The Court will construe Stewart Title’s response to the Motion for Default Judgment to
include requests for an extension of time to answer, or other wise plead, and that request will be
granted. Stewart Title’s time in which to file a timely answer is extended up to, and including,
June 29, 2012, nunc pro tunc to December 5, 2011.
IT IS SO ORDERED THIS

18

day of

June , 2012.

James M. Moody
United States District Judge

2