Colorado Casualty Insurance Company v. S&S Joint Venture et al

Filing 33

ORDER granting 31 Motion to Set Aside Clerk's Entry of Default Against White River Village, LLP and White River Townhomes, LLC and for Extension of Time to Answer Crossclaims. White River Defendants shall file an answer or otherwise respond to Defendant F&Ds crossclaims no later than 2/17/12. Scheduling Conference reset for 4/2/2012 at 11:00 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix, by Magistrate Judge Kristen L. Mix on 2/7/12.(lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02182-MSK-KLM
COLORADO CASUALTY INSURANCE COMPANY,
Plaintiff,
v.
S&S JOINT VENTURE,
WHITE RIVER VILLAGE, LLP, and
WHITE RIVER TOWNHOMES, LLC,
Defendants.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND,
Interested Party.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants White River Village, LLP and White
River Townhomes, LLC’s (collective, “White River”) Motion to Set Aside Clerk’s Entry of
Default Against White River Village, LLP and White River Townhomes, LLC and for
Extension of Time to Answer Crossclaims [Docket No. 31; Filed February 6, 2012] (the
“Motion”).
On January 6, 2012, Intervenor Defendant Fidelity and Deposit Company of
Maryland (“F&D”) filed crossclaims against the White River Defendants. See Answer [#22]
at 6. Counsel for the White River Defendants states that, at that time, he “was attending
to his wife who was hospitalized and recovering from an emergency C-section and

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hysterectomy after giving birth to premature twins on January 3, 2012.” Motion [#31] at 2.
He states that, as a result, the deadline for responding to the crossclaims was not placed
on his calendar as would normally occur. See id. On January 27, 2012, the deadline for
the White River Defendants to file an answer to the crossclaims passed. On February 1,
2012, Defendant F&D moved for Entry of Default [#25]. The White River Defendants
contend that Defendant F&D failed to confer pursuant to D.C.COLO.LCivR 7.1A before
filing the Motion for Entry of Default. See Motion [#31] at 2-3. On February 3, 2012, the
Clerk of Court entered default against the White River Defendants pursuant to Fed. R. Civ.
P. 55(a). See Entry of Default [#28]. On February 6, 2012, the White River Defendants
filed this Motion, requesting that the Court set aside the entry of default.
Pursuant to Fed. R. Civ. P. 55(c), the Court may, for good cause shown, set aside
an entry of default. “[T]he good cause required by Fed. R. Civ. P. 55(c) for setting aside
entry of default poses a lesser standard for the defaulting party than the excusable neglect
which must be shown for relief from judgment under Fed. R. Civ. P. 60(b).” Dennis
Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 775 n.6 (10th Cir. 1997).
In determining whether the defaulting party has shown good cause, the Court may consider
“whether the default was willful, whether setting it aside would prejudice the adversary, and
whether a meritorious defense is presented.” Pinson v. Equifax Credit Info. Servs., Inc.,
316 Fed. App’x 744, 750 (10th Cir. 2009) (quoting Dierschke v. O’Cheskey (In re
Dierschke), 975 F.2d 181, 183 (5th Cir. 1992)).
The Court first notes that the White River Defendants filed this Motion a mere three
business days after Defendant F&D filed its Motion for Entry of Default and one business
day after the Clerk entered default against them. Thus, counsel for the White River
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Defendants promptly took action to correct his error. In addition, counsel for the White
River Defendants provides a reasonable explanation for failing to take note of the deadline
to answer Defendant F&D’s crossclaims. The Court also notes that Defendant F&D failed
to confer with counsel for the White River Defendants before requesting entry of default,
as required by D.C.COLO.LCivR 7.1A. See Motion [#31] at 2-3; see also Motion for Entry
of Default [#25] (failing to certify that Defendant F&D conferred with or attempted to confer
with the White River Defendants before filing its motion). Further, this litigation is in its early
stages; a scheduling conference has not yet been held, and no party will be unduly
prejudiced by setting aside the entry of default. All things considered, therefore, the Court
finds that, pursuant to Fed. R. Civ. P. 55(c), the White River Defendants have shown good
cause to set aside the entry of default. Accordingly,
IT IS HEREBY ORDERED that the Motion is GRANTED. The default entered by
the Clerk of Court on February 3, 2012 is set aside with respect to the White River
Defendants.1
IT IS FURTHER ORDERED that the White River Defendants shall file an answer or
otherwise respond to Defendant F&D’s crossclaims no later than February 17, 2012.
IT IS FURTHER ORDERED that the Scheduling Conference set for February 13,
2012 at 11:00 a.m. is VACATED and RESET for April 2, 2012 at 11:00 a.m. in Courtroom
C-204 of the Byron G. Rogers United States Courthouse, 1929 Stout Street, Denver,
Colorado.
IT IS FURTHER ORDERED that the parties shall submit their proposed scheduling
1

The entry of default as to Defendant S&S Joint Venture, entered simultaneously with the
entry of default as to the White River Defendants, is not disturbed by this Order.

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order pursuant to the District of Colorado Electronic Case Filing (“ECF”) Procedures. The
parties shall submit the proposed scheduling order no later than March 28, 2012.

Dated: February 7, 2012

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