Walls v. Bednarz et al
ORDER granting 57 Motion to Set Aside Default. The entry of default as to Santos is VACATED. Santos is GRANTED leave to file his Answer or other responsive pleading on or before January 25, 2022. Signed by Chief Judge Nancy J. Rosenstengel on 1/11/2022. (anp)
Case 3:21-cv-00742-NJR Document 58 Filed 01/11/22 Page 1 of 2 Page ID #290
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 21-cv-742-NJR
MICHAEL BEDNARZ, et al.,
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on Defendant Venerio Santos’s motion to set aside
entry of default (Doc. 57).
Plaintiff Nirin Walls filed his Complaint on June 28, 2021 (Doc. 1). On August 19,
2021, the Court conducted its threshold review pursuant to 28 U.S.C. §1915A and found
that Walls stated claims against Santos. On August 19, 2021, a waiver of service was sent
to Venerio Santos (Doc. 11). On October 12, 2021, a second waiver of service was sent to
Santos (Doc. 26). On October 18, 2021, Santos returned the waiver of service (Doc. 28).
His Answer was due December 13, 2021. He failed to file an Answer or seek an extension
of time, and, accordingly, the Court entered default against him on January 7, 2022
On January 10, 2022, counsel for Santos entered his appearance and filed a motion
for leave to file Answer out of time (Docs. 52, 53, and 54). The Court denied the motion
because Santos was in default and had not first sought to vacate the default (Doc. 55).
Subsequently, Santos filed the pending motion to set aside the entry of default (Doc. 57).
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Case 3:21-cv-00742-NJR Document 58 Filed 01/11/22 Page 2 of 2 Page ID #291
Pursuant to Federal Rule of Civil Procedure 55(c), “[t]he court may set aside an
entry of default for good cause.” “In order to vacate an entry of default the moving party
must show: (1) good cause for default, (2) quick action to correct it, and (3) [a] meritorious
defense to plaintiff’s complaint.” Pretzel & Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 45
(7th Cir. 1994); Cracco v. Vitran Express, Inc., 559 F.3d 625, 630-31 (7th Cir. 2009). The
standard for setting aside an entry of default is the same as that for setting aside a default
judgment, but is applied more liberally. Cracco, 559 F.3d at 631.
Santos has met the standard for setting aside the entry of default. Santos notes that
his attorney failed to take notice of the December 13 Answer deadline for Santos because
counsel failed to note that Santos had returned the waiver of service. Counsel instead
believed that the waiver of service was still pending and had not been executed. Once
default was entered against Santos, counsel acted quickly to correct the mistake, first
filing a motion for leave to file an Answer and, when that was denied, filing the motion
to set aside the default. Finally, Santos argues that he has a meritorious defense.
Given that defaults are disfavored and the standard for vacating an entry of
default is liberally applied, the Court finds that Santos has met the requirements of Rule
55(c) and GRANTS the motion to set aside entry of default (Doc. 57). The entry of default
against Santos (Doc. 49) is VACATED. Santos is GRANTED leave to file his Answer or
other responsive pleading on or before January 25, 2022.
IT IS SO ORDERED.
DATED: January 11, 2022
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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