Murphy v. Lakey

Filing 32

ORDER ON MOTION FOR DEFAULT denying 28 Motion for Entry of Default. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID W. MURPHY,
Plaintiff,
v.

Case No. 1:10-cv-00149-BLW
ORDER ON MOTION FOR
DEFAULT

KEVIN LAKEY,
Defendant.

Before the Court is Plaintiff’s Motion for Entry of Default (Dkt. 28). The Court
having considered the Motion and being familiar with the record will deny the Motion for
reasons set forth below.
On October 5, 2011, the Court directed the Clerk of Court to issue a Summons and
copy of the Amended Complaint (Dkt .9) to the U.S. Marshal to effect service on
Defendant Kevin Lakey. Order, Dkt. 23. The Summons and Amended Complaint were
served October 14, 2011, and advised Defendant that he must file an Answer within 60
days, or by November 4, 2011. Summons, Dkt. 25. Defendant filed an Answer (Dkt. 26)
on November 16, 2011. On November 21, 2011, Plaintiff filed a Motion for Entry of
Default (Dkt. 28), now before the Court.
Under Rule 55(a), “[w]hen a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend, and the failure is shown by affidavit or

ORDER ON MOTION FOR DEFAULT - 1

otherwise, the clerk must enter the party’s default.” However, the Commentary to Rule
55’s 2007 Amendments indicates that the courts have rejected this language where an
intent to defend has been established. Here, such intent is established in the Defendant’s
filing of an Answer. The Court finds that the one time 12-day late filing does not justify
entry of default in this case, and that an adjudication on the merits would best serve the
interests of justice. Accordingly, the motion for default will be denied.
ORDER
IT IS ORDERED THAT Plaintiff’s Motion for Entry of Default (Dkt. 28) is
DENIED.

DATED: February 3, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

ORDER ON MOTION FOR DEFAULT - 2