Busz v. David Gladieux et al
OPINION AND ORDER: GRANTS 22 MOTION to Vacate 16 Clerks Entry of Default and Response to Plaintiff's Motion for Judgment by Default by Defendant H&E Machined Specialties, Inc and 25 MOTION to Withdraw 18 Motion for Default Judgment filed by Bobby Jo Busz; DENIES AS MOOT 18 MOTION for Default Judgment as to Defendant H & E Machined Specialties, Inc. by Plaintiff Bobby Jo Busz. The Clerk's Entry of Default 16 is SET ASIDE. Signed by Chief Judge Theresa L Springmann on 5/15/2017. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
BOBBY JO BUSZ,
ALLEN COUNTY SHERIFF DAVID
GLADIEUX and H&E MACHINED,
CAUSE NO.: 1:17-CV-31-TLS
OPINION AND ORDER
A Clerk’s Entry of Default [ECF No. 16] was entered on April 25, 2017, against Defendant
H&E Machined Specialties, Inc. (H&E Machined). On April 27, 2017, the Plaintiff filed a Motion
for Default Judgment as to H&E Machined [ECF No. 18]. On May 1, 2017, H&E Machined filed
its Motion to Vacate the Clerk’s Entry of Default [ECF No. 22], pursuant to Federal Rule of Civil
Procedure 55(c), which permits the Court to “set aside an entry of default for good cause.” Fed. R.
Civ. P. 55(c). On May 4, 2017, the Plaintiff filed a Motion to Withdraw [ECF No. 25] in its Motion
for Default Judgment.
To have the Entry of Default vacated, H&E Machined must “show that it had good cause
for the late submission of its answer and that it acted in a timely fashion to have the default order
set aside.” Cracco v. Vitran Exp., Inc., 559 F.3d 625, 631 (7th Cir. 2009). The Defendant has
satisfied both of these inquiries. The Affidavit of Kari Zeplin [ECF No. 23–1] adequately explains
her neglect in responding per the due date. In particular, Ms. Zeplin affirms that numerous issues
with staffing turnover resulted in her inadvertent failure to respond, and she otherwise would have
responded promptly had she remembered the due date. See Cracco, 559 F.3d at 631 (finding good
cause where the defendant “did not willfully ignore the pending litigation, but rather, failed to
respond to the summons and complaint through inadvertence”).
When she learned of her mistake and the Clerk’s Entry of Default, Ms. Zeplin immediately
referred the matter to outside counsel, who entered a Notice of Appearance [ECF No. 19] and
promptly filed the pending Motion to Vacate the Clerk’s Entry of Default.
Ms. Zeplin’s Affidavit also satisfies the requirement that the Defendant show a
“meritorious defense.” See Cracco, 559 F.3d at 631 (finding that the purpose and intent of Rule
55(c) had been met where the defendant notified the plaintiff and the district court of the nature of
its defense and provided the factual basis for that defense).
Based on the foregoing, and in accordance with the policy in the Seventh Circuit “favoring
trial on the merits over default judgment,” id. (citing Sun v. Bd. of Trs. of the Univ. of Ill., 473 F.3d
779, 811 (7th Cir. 2007)), the Court will grant the Defendant’s Motion.
For the foregoing reasons, the Court GRANTS H&E Machined’s Motion to Vacate Clerk’s
Entry of Default [ECF No. 22], GRANTS the Plaintiff’s Motion to Withdraw Motion for Default
[ECF No. 25], and DENIES AS MOOT the Plaintiff’s Motion for Default Judgment [ECF No. 18].
The Clerk’s Entry of Default [ECF No. 16] is SET ASIDE.
SO ORDERED on May 15, 2017.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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