DOH et al v. Lake Central School Corporation et al

Filing 13

OPINION AND ORDER, DENYING 8 Second MOTION for Clerks Entry of Default as to Defendants, LAKE CENTRAL SCHOOL CORPORATION, GEORGE BARANOWSKI, DR. LAWRENCE VERACCO, ROBERT MCDERMOTT, SEAN BEGLEY filed by Osama Haddad, DOH, Hind Haddad.. Signed by Judge Rudy Lozano on 3/6/12. (kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
D.O.H., a minor, by
Osama Haddad and Hind
Haddad,
Plaintiffs,
vs.
LAKE CENTRAL SCHOOL
CORPORATION, et al.,
Defendants,

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Case No. 2:11-CV-430

OPINION AND ORDER
This matter is before the Court on the Motion for Entry of
Default Against Defendants, filed by Plaintiffs, D.O.H., a minor,
by Osama Haddad and Hind Haddad, individually, and as his parents
and natural guardians, on December 28, 2011 (DE #8).

For the

reasons set forth below, the motion is DENIED.

BACKGROUND
On November 14, 2011, Plaintiffs filed their complaint against
Defendants in the Lake County Superior Court sitting in Crown
Point, Indiana, under Cause No. 45D10-111-CT-0207 (hereinafter the
“state claim”).

Counsel for all defendants appeared in the state

claim on November 15, 2011.

(DE #8, Ex. A.)

Plaintiffs then filed

an amended complaint on November 16, 2011. Defendants filed a
notice of removal on November 22, 2011.

(DE #2.)

In the notice,

Defendants acknowledged receipt of the first amended complaint and
moved for removal based on those allegations.
Plaintiffs

initially

moved

for

entry

(DE #2, pp. 2-3.)
of

default

against

Defendants on December 27, 2011 (DE #7), but then refiled it, and
the instant motion for clerk’s entry of default was filed on
December 28, 2011 (DE #8).

Later that same day, on December 28,

2011, Defendants filed an answer to the amended complaint (DE #9)
as well as a response in opposition to the instant motion (DE #10).
Defendants argue that under Local Rule 7(D) of the Lake County
Court Rules, the entry of an appearance automatically gave them a
30 day extension to file an answer, thus their responsive pleading
was not due until January 9, 2012.

In their reply, Plaintiffs

claim Defendants have misread the Lake County Local Rules, and,
furthermore, once removed, the federal rules applied to this case.
Thus, Plaintiffs still contend that the Clerk should enter default
in this case.

DISCUSSION
Rule 55(a) provides that “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.” Fed. R. Civ.
P. 55(a).

Here, presumably, the Clerk did not enter default

because Defendants filed an answer to the amended complaint on

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December 28, 2011, the same date the instant motion was filed.
This circuit favors a policy of promoting a trial based on the
merits, rather than default judgments.

Cracco v. Vitran Express,

Inc., 559 F.3d 625, 630-31 (7th Cir. 2009); see also C.K.S.
Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205
(7th Cir. 1984) (a “default judgment, like a dismissal, is a harsh
sanction

which

should

usually

be

employed

only

in

extreme

situations.”).
Under both Rule 55 and Rule 60, to set aside the entry of
default or a default judgment, the moving party must demonstrate
good cause for the default, quick action to correct it, and a
meritorious defense.

See Passarella v. Hilton Int'l Co., 810 F.2d

674, 676 (7th Cir. 1987); Bluegrass Marine Inc. v. Galena Road
Gravel, Inc., 211 F.R.D. 356, 357 (S.D. Ill. 2002).

The test for

setting aside a default should be applied less stringently where no
default judgment has been entered.
162 (7th Cir. 1994).
merits.

Jones v. Phipps, 39 F.3d 158,

This “lenient” standard favors trials on the

Cracco, 559 F.3d at 631.

In this case, an entry of

default was never even made by the Clerk.
Regardless of whether Defendants improperly read the Lake
County local rules governing when an answer was due, or even if
those rules are applicable in federal court, at most, Defendants
filed their answer 21 days late, and at best, they were not late at
all.

Defendants immediately filed their answer after this motion

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was filed.

This Court, like the Seventh Circuit, follows the

strong policy of favoring a trial on the merits.

Therefore, the

motion for clerk’s entry of default is DENIED.

CONCLUSION
For the aforementioned reasons,

the Motion for Entry of

Default Against Defendants is DENIED.

DATED: March 6, 2012

/s/ RUDY LOZANO, Judge
United States District Court

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