Holleman v. Buncich et al
Filing
190
OPINION and ORDER granting 187 Motion to Set Aside Entry of Default. The court VACATES the entry of default against Penny Cantu andORDERS Penny Cantu to answer the complaint on or before 10/31/2016.Signed by Chief Judge Philip P Simon on 10/24/2016. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT L. HOLLEMAN,
Plaintiff,
vs.
JOHN BUNCICH, et al.,
Defendants.
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CAUSE NO. 2:14CV019-PPS
OPINION AND ORDER
Robert L. Holleman, a pro se prisoner when he filed this lawsuit, was granted
leave to proceed against Sheriff Buncich, Dr. William Forgey and Penny Cantu, for
failing to provide him with his medically prescribed gluten-free diet while he was
incarcerated at the Lake County Jail. (DE 76.) Dr. Forgey has since been dismissed from
this case, leaving only Sheriff Buncich and Penny Cantu as defendants. Because Cantu
did not appear or otherwise defend the claim, the clerk entered default against her. (DE
111.) Cantu now moves to set aside the clerk’s entry of default. (DE 187.)
Rule 55(c) of the Federal Rules of Civil Procedure allows relief from entry of
default for good cause. The moving party must show (1) good cause to set aside the
default, (2) quick action to correct the default, and (3) the existence of a meritorious
defense to the complaint. Cracco v. Vitran Express, Inc., 559 F.3d 625, 630-31 (7th Cir.
2009). While the same test applies for motions seeking relief from default judgment
under Rule 60(b), the test is “more liberally applied in the Rule 55(c) context.” Id.
Furthermore, “[w]hether or not to vacate a default is in the sound discretion of the
district court.” Sun v. Board of Trustees of University of Illinois, 473 F.3d 799, 810 (7th Cir.
2007).
The cause offered by Cantu for her default is that she never received the
amended complaint or summons and knew nothing about this lawsuit until she was
told about it by Attorney Enslen on August 25, 2016. (DE 182-2; 188-6.) There is no
dispute that service was proper. The U.S. Marshal mailed the summons and amended
complaint via certified mail to Cantu at the Lake County Jail. An individual named “A.
Johnson” accepted service on her behalf. (DE 188-2.) Nevertheless, the summons and
amended complaint somehow got lost in the shuffle and never made it to Cantu.
Holleman believes Cantu’s assertion that she never received service is incredible
because the other two defendants in this case were served in the exact same manner, at
the exact same address, and they actively participated in this case. Holleman also
expresses fear that allowing Cantu to enter the litigation this late in the game will entice
other defendants to do the same. I do not share either of Holleman’s concerns.
Snafus happen, in the Lake County Jail as elsewhere. Holleman’s skepticism does
not persuade me to reject Cantu’s representation made under oath that she did not
receive notice of this lawsuit until she was told about it by Attorney Enslen. (DE 187-2.)
Cantu was added as a defendant in an amended complaint, so her service by mail was
accomplished at a different point in time from the service on the other defendants.
While the Lake County Jail apparently needs more reliable procedures in place, I do not
find any intentional wrongdoing or evasion of service, and I accept Cantu’s lack of
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actual notice of the lawsuit as good cause. 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”).
Second is the requirement of speedy action upon learning of the default
situation. Holleman points out that this motion was filed over a year after the default
was entered. However, the appropriate starting point is the time Cantu learned of the
default, not the time default was entered. Accepting that Cantu only learned of this
lawsuit on August 25, 2016 (DE 188-6), she took quick action to correct her delinquency.
Almost immediately, Attorney Enslen entered his appearance on her behalf and filed
the motion to vacate the entry of default. (DE 184, 187.)
Finally is the matter of a meritorious defense to Holleman’s allegations that he
was not served a gluten-free diet. In her affidavit, Cantu recounts that she reviewed the
Lake County Jail records and that Holleman was, in fact, served a gluten-free diet. (DE
187-2 at ¶¶ 5-7.) Holleman argues that this conclusion is insufficient to support a
meritorious defense and points out many potential holes in Cantu’s defense. However,
“[a] meritorious defense is not necessarily one which must, beyond a doubt, succeed in
defeating a default judgment, but rather one which at least raises a serious question
regarding the propriety of a default judgment and which is supported by a developed
legal and factual basis.” Jones v. Phipps, 39 F.3d 158, 165 (7th Cir. 1994). Under this
standard, I find that Cantu has offered a sufficiently meritorious defense to set aside an
entry of default.
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Clearly, Holleman would prefer that this case be concluded in his favor against
Cantu at once rather than litigated on the merits. While the court is not unsympathetic
to his position, there is a federal policy in favor of litigation on the merits, rather than
through entry of default judgment. Cracco, 559 F.3d at 631. Notably, Holleman has not
identified any particularized prejudice he suffered as a result of the delay, nor do I find
that to be the case. Indeed, Holleman is still actively litigating this case against Sheriff
Buncich. I have recently reopened discovery and scheduled a trial to commence on May
8, 2017. Thus, Holleman should have adequate time to conduct any necessary discovery
against Cantu and, absent any unforeseen delays, will have the ability to get his case
decided on the merits soon.
Under these circumstances, the motion to set aside the entry of default will be
granted. Holleman asks that before I vacate the entry of default I first “order Cantu to
provide a complete and thorough explanation of Cantu’s default and that the Court
then delay any further ruling until Plaintiff Holleman is able to investigate the factual
circumstances regarding Cantu’s receipt of the summons and Amended Complaint in
the ordinary course of discovery, including through appropriate depositions or other
discovery directed to Cantu and other knowledgeable persons.” (DE 188 at 7, n. 3.)
Respectfully, I’ll decline that invitation. It is now time to move on to the merits of the
case.
For these reasons, the court:
(1) GRANTS the motion to set aside the entry of default (DE 187);
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(2) VACATES the entry of default against Penny Cantu (DE 111); and
(3) ORDERS Penny Cantu to answer the complaint on or before October 31,
2016.
SO ORDERED.
ENTERED: October 24, 2016.
/s/ Philip P. Simon
Chief Judge
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