Grimes v. Gary Community School Corporation et al
Filing
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OPINION AND ORDER granting 27 Motion to Set Aside Default against defendants A. Bradshaw and D. Goshay. Because the Plaintiffs Motion for Order Denying Motion to Set Aside Entry of Default by Clerk DE 31 is redundant, the 32 motion to strike it is GRANTED and the Court STRIKES DE 31 Motion. Signed by Chief Judge Philip P Simon on 5/7/14. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DARA M. GRIMES
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Plaintiff,
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v.
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GARY COMMUNITY SCHOOL CORPORATION, )
CITY OF GARY, D. GOSHAY AND
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A. BRADSHAW
)
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Defendants.
)
2:13-cv-00036
OPINION AND ORDER
This matter is before me on defendants A. Bradshaw’s and D. Goshay’s Motion to Set
Aside Clerk’s Entry of Default. Officers Bradshaw and Goshay didn’t respond to the complaint
and no attorneys entered appearances on their behalf because Bradshaw and Goshay, or the
attorney for their employer (ultimately also their attorney), believed that service on them was not
properly made. While they were wrong about that, there is nonetheless good cause to set aside
the clerk’s entry of default: the Officers appear to have potentially meritorious defenses, they did
not willfully or carelessly ignore what they believed to be valid service of process, they acted
promptly after the clerk entered default and have participated diligently in the litigation since
then, and the case is ongoing against other defendants so there is no efficiency benefit to
maintaining the entry of default against Bradshaw and Goshay. Therefore the Motion to Set
Aside Clerk’s Entry of Default is GRANTED.
BACKGROUND
Dara Grimes filed her complaint against defendants Gary Community School
Corporation (“GCSC”), the City of Gary, and Officers A. Bradshaw and D. Goshay on January
22, 2013. (I will refer to the latter two defendants, the only ones relevant to this Order, by their
names or as “the Officers.”) The complaint seeks to recover compensatory and punitive damages
for alleged violations of Grimes’s constitutional and civil rights by the defendants on January 21,
2011. An amended complaint was filed on February 28, 2013. (DE 7.) GCSC and Gary answered
the complaints, but Officers Bradshaw and Goshay initially didn’t. On April 25, 2013 Grimes
filed an Affidavit of Service of Summons of the Complaint and Amended Complaint on
Defendants. (Docket Entry 12.) The Affidavit indicated the following service: on both
Defendants by USPS certified mail with return receipt signed for by the Office of the Chief of
Police, Gary Police Department on January 29, 2013; on Bradshaw by USPS certified mail with
return receipt signed for at Bradshaw’s employment location, Lew Wallace H.S. on April 12,
2013; on Bradshaw by USPS certified mail with return receipt signed for by Bradshaw’s
employer as School Security Officer, Gary Community School Corporation, on April 12, 2013;
on Goshay by USPS certified mail with return receipt signed for at Goshay’s employer, the Gary
Police Department, on April 15, 2013; and on Goshay by USPS certified mail with return receipt
signed for by Goshay’s employer at the Gary Community School Corporation on April 12, 2013.
Shortly after the preliminary pretrial conference, at which the Officers were not
represented, Grimes moved for a Clerk’s Entry of Default against Bradshaw and Goshay
pursuant to Fed. R. Civ. P. 55(a). (DE 21, 22.) The Clerk entered default against the Officers the
same day, November 8, 2013. (DE 23, 24.) On November 14, 2013 an attorney for Bradshaw and
Goshay filed a Notice of Appearance in this matter (DE 25), and the same day filed both an
Answer to the Amended Complaint (DE 26) and a Motion to Set Aside Clerk’s Entry of Default.
(DE 27.) Grimes received an extension and eventually responded to the motion. (DE 30.) No
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reply was filed. Grimes has also filed a separate motion asking me to deny the motion to set
aside default (DE 31), and Bradshaw and Goshay moved to strike Grimes’s motion as redundant.
(DE 32.) Due to the delay in briefing, the issue of default slipped through without a prompt
Order by the Court, but discovery has proceeded apace nonetheless, and the case is on track for
timely disposition.
DISCUSSION
Relief from entry of a default requested prior to entry of judgment is governed by Federal
Rule of Civil Procedure 55(c) which provides that “[f]or good cause shown the court may set
aside an entry of default . . . .” “Rule 55(c) requires ‘good cause’ for the judicial action, not
‘good cause’ for the defendant’s error.” Sims v. EGA Prods., 475 F.3d 865, 868 (7th Cir. 2007).
The standard is essentially the same as that for vacating a default judgment under Rule 60(b);
however, relief under Rule 55(c) is more readily granted, while the application of the test for
relief under Rule 60(b) is “much more limited and stringent.” Jones v. Phipps, 39 F.3d 158, 162
(7th Cir. 1994) (citation omitted); see also see also Davis v. Hutchins, 321 F.3d 641, 646 n.2 (7th
Cir.2003); Pretzel & Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir.1994). In the
Seventh Circuit, “[a] party seeking to vacate an entry of default prior to the entry of final
judgment must show: (1) good cause for the default; (2) quick action to correct it; and (3) a
meritorious defense to the complaint.” Cracco v. Vitran Express, Inc., 559 F.3d 625, 630 (7th
Cir. 2009) (internal quotation marks and citations omitted). Disposition on the merits is
preferable to default. Id. at 631.
In their motion, Bradshaw and Goshay argue that they were not properly served with the
summons and complaint, because they were served at places of business. (DE 27 at ¶¶ 1, 3.)
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Bradshaw and Goshay have shown that they have several potentially meritorious defenses, as
evidenced by their answer to the amended complaint which, when read in conjunction with their
motion, provides more than a conclusory statement of non-liability. (See DE 26.) They have also
shown that they acted quickly to correct the situation, responding to the Clerk’s immediate entry
of default within six calendar days. Since then, they have also participated diligently in the
litigation.
Bradshaw and Goshay contend that they didn’t answer the complaint or have an attorney
enter an appearance for them because service was improper, since Grimes had them served at
their places of employment, outside the permitted means of service described in Fed. R. Civ. P.
4(e)(2). I disagree. Fed. R. Civ. P. 4(e), in relevant part, allows for service of summons as
permitted under state law governing service in the state where the district court is located. In
Indiana an individual may be served by sending a copy, with a return receipt, to the individual’s
residence, place of business or employment with a return receipt showing receipt of the
documents. Ind. R. Trial P. 4.1(A)(1). There is no dispute over whether Grimes mailed the
summons and complaint to Bradshaw and Goshay at their respective places of employment; she
did. She sent it to the central office of their employer as well as their actual sites of employment.
The service was received by someone at each facility, and in accordance with Indiana Rule 4.1
acknowledgment of receipt of service was sent to Grimes by the Postal Service. Therefore,
service of process was proper under Indiana procedures. See Claus v. Mize, 317 F.3d 725,
727-28 (7th Cir. 2003).
Although service was proper, I still find there is good cause to set aside the entry of
default because the record does not reflect a willful disregard of the lawsuit. Cracco, 559 F.3d at
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631. Attorney Coleman mistakenly believed that, due to improper service under the Federal
Rules, the Court had not acquired jurisdiction over Bradshaw and Goshay so there was no need
to answer on their behalf. Additionally, even though service was received at Bradshaw and
Goshay’s places of employment, the record does not show that it was ever forwarded to
Bradshaw and Goshay. The Officers may not have known that they had been sued individually,
since their employer’s attorney was handling the case for GCSC and may have received all of the
case-related documents.
Furthermore, allowing this case to proceed on the merits does not unfairly prejudice any
party. Bradshaw and Goshay have now submitted an answer to the amended complaint and
discovery is proceeding against all of the defendants. There is also likely to be significant
overlap of issues and discovery between the Officers and the other defendants, so it makes sense
to allow the Officers to proceed to disposition with the other defendants. Disposition on the
merits is preferable to disposition by default. This case involves questions of fact that should be
answered at trial, not avoided through the default process. Accordingly, I find that there is good
cause to set aside the clerk’s entry of default.
The delay in an order on the motion to set aside default may account for Grimes’s
redundant motion for an order denying the request to set aside default. In any event, Rule 12(f)
of the Federal Rules of Civil Procedure allows the court, on its own or on motion of a party, to
strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. Defendants Bradshaw and Goshay, by motion, have requested that I strike the
Plaintiff’s Motion (DE 31) because it is redundant. I agree. I have ruled on the matter so there is
no need to rule on it again. The defendant’s motion to strike is GRANTED. (DE 32.) The clerk
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is ordered to strike Grimes’s Motion for an Order Denying Defendants’ Goshay’s and
Bradshaw’s Motion to Set Aside Clerk’s Entry of Default by Clerk. (DE 31.)
CONCLUSION
I find that there is good cause to set aside the Clerk’s entry of default. Therefore I
GRANT the Motion to Set Aside Clerk’s Entry of Default against defendants A. Bradshaw and
D. Goshay. (DE 27.) Because the Plaintiff’s Motion for Order Denying Motion to Set Aside
Entry of Default by Clerk (DE 31) is redundant, the motion to strike it (DE 32) is GRANTED
and the Court STRIKES DE 31.
SO ORDERED.
ENTERED: May 7, 2014
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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