ACG PIZZA PARTNERS LLC v. MYKULL ENTERPRISES INC et al

Filing 21

ORDER: The Clerk's entry of default against the Defendants be set aside. This case shall continue in the regular fashion. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 6/4/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ACG PIZZA PARTNERS, LLC,

Plaintiff,
v.
MYKULL ENTERPRISES, INC., and
MICHAEL CHARLES ELLIS,

Defendants.

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CIVIL ACTION NO. 5:14-CV-174 (MTT)

ORDER
Before the Court are the Defendants’ responses (Docs. 16, 17) to the Plaintiff’s
applications to the Clerk of Court (Docs. 12, 13) for entries of default. Now that the
Clerk has entered default against the Defendants, the Court construes the Defendants’
responses as motions to set aside the entries of default.
Under Fed. R. Civ. P. 55(c), “[t]he court may set aside an entry of default for
good cause.” “Good cause” is a mutable and generally liberal standard. Compania
Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948,
951 (11th Cir. 1996). Though not susceptible to a precise formula, among the factors
courts have considered in finding that good cause exists are “whether the default was
culpable or willful, whether setting it aside would prejudice the adversary, and whether
the defaulting party presents a meritorious defense.” Id.
In this case, the Defendants were one day late when they filed answers 22 days
after being personally served with the complaint. (Docs. 6, 8, 14, 15). See also Fed. R.

Civ. P. 12(a)(1)(A)(i) (allowing 21 days to respond to a complaint). The Defendants
contend their response was timely because they complied with the Court’s CM/ECF
Administrative Procedures for electronic filing, which provides that “[f]or the purpose of
computing time pursuant to applicable rules, allow three (3) days for both mail and
electronic service.” CM/ECF Administrative Procedures at 6.
The Court doubts this additional three days applies to answers filed in response
to complaints personally served on a defendant. See Fed. R. Civ. P. 5(b)(2); 6(d)
(providing an additional three days response time when the complaint was not
personally served). However, the Defendants’ reliance on the Court’s CM/ECF
Administrative Procedures appears to have been in good faith, and their construction of
its provisions is not entirely unreasonable even if it is wrong. Given that the answers
were only one day late, that the Defendants are clearly ready to defend, that there has
been no prejudice to the Plaintiff, and that the Court prefers to resolve disputes on their
merits, the Court finds good cause has been shown to set aside the Clerk’s entry of
default.
Accordingly, it is ORDERED that the Clerk’s entry of default against the
Defendants be set aside. This case shall continue in the regular fashion.
SO ORDERED, this 4th day of June, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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