Bank of America, N.A. v. Caruk Holdings Arkansas, LLC et al

Filing 18

ORDER granting 11 Motion for Extension of Time to Answer, Defendants shall file their answer to the complaint within five days of this Order (answer due 8/18/11). 16 Clerk's Entry of Default as to the defendants is hereby set aside. Further 12 Motion for Default Judgment is denied as moot. Signed by Honorable Jimm Larry Hendren on August 11, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BANK OF AMERICA, N.A.

PLAINTIFF

v.

Civil No. 11-2096

CARUK HOLDINGS ARKANSAS, LLC,
DENISE L. CARUK; and
GORDON C. CARUK

DEFENDANT
ORDER

Now

on

this

11th

day

of

August,

2011,

comes

on

for

consideration defendants' Motion to Extend Time (Doc. 11), and
plaintiff's response thereto (Doc. 17).

The Court, being well and

sufficiently advised, finds and orders as follows:
1.

On May 27, 2011, plaintiff, Bank of America, N.A., filed

a Verified Complaint in Foreclosure against defendants.
2.

On June 9, 2011, plaintiff filed affidavits of service

representing that defendants had been served with summonses on June
4, 2011.
3.

Pursuant to Rule 12(a)(1)(A)(i), defendants' answers were

due on June 27, 2011.

Defendants did not file their answers, or

otherwise respond to the complaint.
4.
July

12,

Plaintiff asserts that on July 11, 2011, and again on
2011,

counsel

for

defendants

contacted

counsel

for

plaintiff and requested an extension of time to file their answers.
Plaintiff declined to agree to an extension.

5.

On July 12, 2011, defendants jointly filed their answer

and shortly thereafter filed their amended answer.

Defendants

concede that these answers were untimely.
6.

Also on July 12, 2011, defendants filed a Motion to

Extend Time in which they stated that they "only recently retained
[counsel] and require additional time to respond to Plaintiff's
Complaint,

if,

in

fact,

the

Defendants were served

when the

Plaintiff allege [sic] in their Affidavit."1
Further, defendants assert that good cause exists to grant
them an extension of time to file their answers because defendants
reside out of state and they "spent a great deal of time locating
local counsel to assist in their representation."
assert

that

their

failure

to

file

a

timely

Defendants

answer

"may

be

considered excusable neglect."
7.

After defendants filed their Motion to Extend Time,

plaintiff's filed a Motion for Default Judgment by the Clerk (Doc.
12).
8.

On July 13, 2011, the Clerk entered a Default as to each

of the named defendants.

No entry of a default judgment has been

made.
9.

On

July

27,

2011,

plaintiff

filed

its

response

to

defendants' Motion to Extend in which it asserts that defendants

1

This statement appears to the Court to be untenable.
Defendants should know, one way or the other, if they were served
with summonses on June 4, 2011.
2

should not be granted additional time to file an answer because
their request was untimely and they have failed to show excusable
neglect.

Plaintiff also argues that the motion to extend is moot

because the Clerk has already entered a default against defendants.
9.

Federal Rule of Civil Procedure 6(b)(1)(B) permits a

court to grant an extension of time even when the request is made
after the deadline has expired.

Thus, the Court may still grant

defendants an extension of time to respond to the complaint even
though they filed their motion after the deadline to respond had
expired.
In order for the Court to grant such extension, however,
defendants must show that they failed to act "because of excusable
neglect."

Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th

Cir. 2010); Fed. R. Civ. P. 6(b)(1)(B).
'elastic

concept'

appropriate, . . .

that

empowers

"Excusable neglect is an

courts

to

accept,

'where

late filings caused by inadvertence, mistake,

or carelessness, as well as by intervening circumstances beyond the
party's control.'"

Id.

(quoting

Pioneer Inv.

Servs.

Co.

v.

Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392, 388, 113 S. Ct.
1489, 123 L. Ed. 2d 74 (1993)).
In deciding whether neglect is excusable, "the determination
is at bottom an equitable one, taking into account all relevant
circumstances surrounding the party's omission."
Pioneer,

507

U.S.

at

395).

"'[T]he

3

following

Id. (quoting
factors

are

particularly
[plaintiff]];
possible

important:
(2)

impact

the

of

(1)

the

length

that

possibility

of

delay

of

[defendants']
on

judicial

prejudice
delay

to

and

the

proceedings;

(3)

[defendants'] reasons for delay, including whether the delay was
within [their] reasonable control; and (4) whether [defendants]
acted in good faith.'" Id. (quoting Sugarbaker v. SSM Health Care,
187 F.3d 853, 856 (8th Cir. 1999)).
These four factors do not carry equal weight.

See Gibbons v.

United States, 317 F.3d 852, 854 (8th Cir. 2003). The "reason-fordelay" factor "must have the greatest import" and will always be
"critical to the inquiry."

Id. (internal quotation marks and

citations omitted).
Finally, the Eighth Circuit has noted that there is a judicial
preference "for adjudication on the merits."

Chorosevic, 600 F.3d

at 947 (internal citation omitted).
10.

The Court now turns to the above factors, and will apply

them against the facts of this case.
*

Specifically:

plaintiff has come forward with no reason why it would be
prejudiced by an extension of time in this case;

*

the defendants' delay was only fifteen (15) days, which
is a relatively short delay that will cause little, if
any, impact on judicial proceedings; and

*

the defendants' reason for delay -- that they were
looking for counsel in Arkansas to represent them -- is

4

a good faith reason for the delay and, while such delay
was within their control, there are no facts before the
Court to suggest that defendants failed to exercise due
diligence in seeking retained counsel.
11.

Based

on

the

above

facts,

the

Court

finds

that

defendants' failure to file a timely answer constitutes excusable
neglect.

Therefore, the Court will grant defendants' Motion to

Extend Time (Doc. 11).
The Court notes, however, that defendants previously-filed
answers

contain

a

general

denial

of

all

complaint, and is not proper responses.
12(b).

allegations

in

the

See Fed. R. Civ. P.

Thus, the Court will order that defendants file proper

answers to the complaint within five days of this Order.
12.

Finally,

although

defendants

have

not

specifically

requested that the Court set aside the clerk's entry of default,
the Court finds that, for the reasons set forth above, good cause
exists for setting aside the entry of default and, as such, the
Court will order that the Clerk's entry of default be set aside.
See Fed. R. Civ. P. 55(c).
IT IS THEREFORE ORDERED that defendants' Motion to Extend Time
(Doc. 11) is hereby GRANTED. Defendants shall file their answer to
the complaint within five days of this Order.
IT IS FURTHER ORDERED that the Clerk's entry of Default as to
the defendants is hereby set aside.
5

IT IS FURTHER ORDERED that the pending Motion for Default
Judgment (Doc. 12) is DENIED as moot.
IT IS SO ORDERED.
/s/Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

6