Employers and Operating Engineers Local 520 Pension Fund et al v. A & A Hauling, Inc.

Filing 15

ORDER GRANTING 14 MOTION to Set Aside 11 Clerk's Entry of Default, filed by A & A Hauling, Inc., denying as MOOT 8 MOTION for Default Judgment. The Clerk of Court is directed to VACATE its Entry of Default at Doc. 11. Signed by Judge Staci M. Yandle on 03/4/2015. (rlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EMPLOYERS AND OPERATING
ENGINEERS LOCAL 520 PENSION FUND,
et al.,
Plaintiffs,

Case No. 14-cv-1238-SMY-PMF

vs.
A & A HAULING, INC.,
an Illinois Corporation,
Defendant.

ORDER
This matter comes before the Court on Defendant A & A Hauling’s Motion to Set Aside
(Doc. 14) wherein Defendant requests this Court vacate the Clerk’s Entry of Default on February
12, 2015 (Doc. 11).
Defendant was properly served and did not file a responsive pleading by the December
22, 2014 due date. After the Court ordered Plaintiffs to show cause on January 28, 2015, (Doc.
6) Plaintiffs moved for Entry of Default (Doc. 7) and Default Judgment (Doc. 8). The Clerk of
Court entered default against Defendant on February 12.
On February 23, counsel for Defendant, Thomas G. Maag, entered his appearance, filed
Defendant’s Answer (Doc. 13) and moved to set aside the Clerk’s Entry of Default. Counsel
explained that he had spoken with Plaintiff’s counsel before the end of 2014 concerning possible
resolution, but failed to file an answer because of an oversight due to the holidays and “an
extremely busy schedule.”
Federal Rule of Civil Procedure 55(c) allows the Court to set aside an entry of default for
good cause. In order to set aside an entry of default under Rule 55(c), the moving party must

demonstrate good cause for the default, quick action to correct it, and a meritorious defense to
the complaint. Employers and Operating Engineers Local 520 Pension Fund v. Green Trac,
LLC, 2014 WL 3747019 (S.D. Ill., July 30, 2014), citing U.S. v. DiMucci, 879 F.2d 1488, 1495
(7th Cir. 1989). The test is identical as to motions under both Rule 55(c) and Rule 60 (b),
however the application is more limited and stringent under Rule 60(b). Jones v. Phipps, 39 F.3d
158, 162 (7th Cir. 1994). The Seventh Circuit has a well-established policy favoring adjudication
on the merits over default. Passarella v. Hilton Intern. Co., 810 F.2d 674, 675 (7th Cir. 1987).
Defendant here has demonstrated quick action to correct the default by
contemporaneously filing an answer with the instant motion. Defendant has also provided a
meritorious defense. While Defendant’s weak showing of cause would not likely pass muster if
the motion sought to vacate under Rule 60(b), the hurdle under Rule 55(c) is less stringent.
Considering the Defendant’s belief that the parties were working to resolve Plaintiff’s claims, the
Court GRANTS Defendant’s Motion to Vacate Entry of Default and DIRECTS the Clerk of
Court to VACATE its Entry of Default at Doc. 11. Accordingly, Plaintiffs’ Motion for Default
at Doc. 8 is DENIED as MOOT.

IT IS SO ORDERED.
DATE: March 4, 2015

/s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

2