Continental Credit Corporation v. Maloney

Filing 30

MINUTE ORDER granting 28 Uncontested Motion to Set Aside Entry of Default and Request to File Answer Out of Time, by Magistrate Judge Michael J. Watanabe on 2/16/2016. Scheduling Conference set for 4/7/2016 11:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00972-MSK-MJW
CONTINENTAL CREDIT CORPORATION,
Plaintiff,
v.
DANIEL MALONEY,
Defendant.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the Court on Defendant’s Uncontested Motion to Set Aside
Entry of Default and Request to File Answer Out of Time (Docket No. 28). In the motion,
Defendant asks the Court to set aside the Clerk of the Court’s entry of default (Docket
No. 14).
Pursuant to Fed. R. Civ. P. 55(c), a “court may set aside an entry of default for
good cause . . . .” Fed. R. Civ .P. 55(c). In determining whether to vacate the entry of
default for good cause, the Court may consider the following factors: (1) whether the
defendant’s culpable conduct led to the default; (2) whether the plaintiff will be
prejudiced by setting aside the entry of default; and (3) whether the defendant has a
meritorious defense. See Gilmore v. Carlson, 72 F.App'x 798, 801 (10th Cir. 2003). The
Court need not consider each of these factors and may consider other factors in its
discretion. Hunt v. Ford Motor Co., 65 F.3d 178, *3 (10th Cir. 1995) (table decision)
(citing In re Dierschke, 975 F.2d 181, 183 (5th Cir.1992)). Guiding the Court's analysis
is the principle that “[t]he preferred disposition of any case is upon its merits and not by
default judgment.” Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970); see also
Katzson Bros. v. E.P.A., 839 F.2d 1396, 1399 (10th Cir. 1988) (noting that “default
judgments are not favored by courts”).
Defendant argues that he was out of the state on the date he was allegedly
served and therefore was not aware of this lawsuit. (Docket No. 28 at 2.) The Court,
therefore, concludes that Defendant is not culpable for his failure to timely appear in this
action. See United States v. Timbers Pres., Routt Cnty., Colo., 999 F.2d 452, 454 (10th
Cir. 1993) (citing 6 James W. Moore et al., Moore's Federal Practice ¶ 55.10[1] (2d
ed.1992)), abrogated on other grounds by Degen v. United States, 517 U.S. 820, 825
(1996); see also United States v. $285,350.00 in U.S. Currency, 547 F.App'x 886, 887
(10th Cir. 2013) (unpublished decision).

Plaintiff does not oppose the motion, therefore, the Court concludes that setting
aside the entry of default will not prejudice Plaintiff.
Defendant argues that he has a meritorious defense to Plaintiff’s claims. (Docket
No. 28 at 2.) However, “because the Court finds that two of the three [Gilmore] factors
tip in favor of granting the [motion], the Court need not address the third factor in order
to determine that good cause exists to set aside the entry of default.” Apex Mobility
Transp., LLC v. First Transit, Inc., No. 14-cv-02645-REB-MEH, 2015 WL 59553, at *3
(D. Colo. Jan. 2, 2015).
For these reasons, it is hereby
ORDERED that Defendant’s Uncontested Motion to Set Aside Entry of Default
and Request to File Answer Out of Time (Docket No. 28) is GRANTED. Accordingly, it
is further
ORDERED that Defendant shall respond to the Complaint (Docket No. 1) on or
before March 1, 2016. It is further
ORDERED that a Scheduling Conference is SET for April 7, 2016 at 11:00 a.m. It
is further
ORDERED that the parties shall file the proposed scheduling order on or before
March 31, 2016.
Date: February 16, 2016