Iowa Based Milling LLC v. Fischer Excavating INC et al

Filing 104

ORDER denying 102 Plaintiff's Motion for Default Judgment. Fischer Excavating INC and Western Surety Company answers due 4/24/2017. See attached order. Entered by Magistrate Judge Jonathan E. Hawley on 04/07/2017. (RT, ilcd)

E-FILED

Friday, 07 April, 2017 12:38:29 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
UNITED STATES OF AMERICA and
STATE OF ILLINOIS for the use and
benefit of IOWA BASED MILLING,
LLC,
Plaintiffs,

Case No. 4:12-cv-04082-JEH

v.
FISCHER EXCAVATING, INC.;
CONCRETE STRUCTURES OF THE
MIDWEST, INC.; WESTERN
SURETY COMPANY; and
CONTINENTAL CASUALTY
COMPANY,
Defendants.
Order
Before the Court is Plaintiff, Iowa Based Milling, LLC’s (IMB), Motion
Requesting Entry of Default Against Defendants Western Surety Company and
Fischer Excavating. (D. 102). 1 Defendants Western Surety Company and Fischer
Excavating have filed a Response. (D. 103). For the reasons stated, infra, IBM’s
motion is DENIED. 2
IBM filed their initial Complaint in this case in August 2012. (D. 1). Fischer
Excavating filed its Counterlaim and IBM filed an Amended Complaint in October
2013.

(D. 27; 44).

In November 2013, Fischer Excavating answered IBM’s

Amended Complaint on the same day that all Defendants filed Motions to Dismiss

1
2

Citations to the Docket in this case are abbreviated as “D. __.”
The undersigned presides over this case with the consent of all parties. (D. 72).

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for Failure to State a Claim. (D. 45-49). The Court subsequently denied all
Defendants’ Motions to Dismiss. (D. 56). Fischer Excavating and Western Surety
Company acknowledge that they did not file answers in the wake of the Court’s
ruling. (D. 103 at pg. 2). Discovery in this case is complete and the parties have
agreed to proceed to a bench trial in May 2017. (D. 101).
IBM now argues the Court should enter default judgment against Western
Surety and Fischer Excavating for failure to answer all or part of its Amended
Complaint. (D. 102). Specifically, IBM asserts that the Court should allow entry
for default against Western Surety and Fischer Excavating pursuant to Federal
Rule of Civil Procedure 55(a). (D. 103). As is evident from the docket, both
Western Surety and Fischer Excavating have vigorously defended this claim for
over four years. The Court will not resolve this case on a technicality, especially
when IBM has not alleged prejudice. Sun v. Bd. Of Trustees of Univ. of IL, 473 F.3d
799, 811 (7th Cir. 2007) (“This Circuit has a well-established policy favoring a trial
on the merits over a default judgment. For that reason, a default judgment should
be used only in extreme situations, or when other less drastic sanctions have
proved unavailing.”). Therefore, IMB’s Motion for Entry of Default Judgment (D.
102) is DENIED.
Western Surety and Fischer Excavating must, however, file an answer to
IBM’s Amended Complaint within fourteen (14) days of the date of entry of this
order. Failure to file an answer within this timeframe will result in entry of default
judgment.
It is so ordered.
Entered on April 7, 2017
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
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