Norman v. Lake Station Indiana Police Department and its Officers et al
OPINION AND ORDER GRANTING 44 MOTION to Set Aside 38 Clerks Entry of Default, 26 Clerks Entry of Default filed by Lake Station IN The City of, Allen Troy, McCann Kev. These defendants are ORDERED to answer or otherwise respond to the allegations of Plaintiff Lasandra Norman's Amended Complaint within 21 days after entry of this order. Signed by Judge Philip P Simon on 11/21/19. (Copy mailed to pro se party)(ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CASE NO.: 2:18-cv-204-PPS-JEM
CITY OF LAKE STATION, INDIANA,
TROY ALLEN, and KEV MCCANN,
OPINION AND ORDER
Lasandra Norman has sued various defendants, including the City of Lake
Station, Indiana, Troy Allen and Kev McCann, both of whom were apparently police
officers with the Lake Station Police Department at the time of the incident in question.
[DE 1.] Norman alleges that she was unconstitutionally searched and arrested by those
officers and suffered other compensable injuries as a result of their actions. But the
merits of those allegations aren’t presently at issue. Instead, this matter is before me on
defendants’ Motion to Set Aside the Entry of Default which has been granted against
them for failing to respond to this lawsuit for more than a year. [DE 35.]
Proceeding without a lawyer, Ms. Norman filed her case on May 25, 2018 and
soon thereafter amended her complaint. [DE 1, 4.] The Court granted her leave to
proceed in forma pauperis, and ordered the amended complaint served on the
defendants by the United States Marshal Services. [DE 6.] Service of the summons and
complaint was affected by certified mail on defendants Allen, McCann and the City of
Lake Station soon thereafter. [DE 8, 9, and 11.] But none of these defendants ever
responded or entered an appearance in the case. In fact, it was radio silence from all
three defendants for more than a year. On December 11, 2018, the Clerk entered a
default against the defendant City of Lake Station. A default against defendants Allen
and McCann was entered on August 13, 2019. [DE 38.] In their motion to set aside the
default, defendants state that Ms. Norman did not provide copies of any of these orders
to them, although they do not dispute that they were in fact served with the complaint.
On August 5, 2019, I gave Ms. Norman a deadline of September 6, 2019 to file
evidence of her damages—a necessary component before this case could possibly
proceed from an entry of default to a default judgment. [DE 35.] I also ordered that my
August 5 order be served on the defendants, effectively giving them one last chance to
respond to this lawsuit that had already been pending for more than a year. [Id.] On
August 14, 2019, three attorneys entered appearances on behalf of defendants Allen,
McCann and the City of Lake Station. [DE 39-41.] A week later, on August 21, 2019,
these defendants filed their motion to set aside the entries of default. [DE 44.] Ms.
Norman has not responded directly to that motion, but this matter is ripe for decision.
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 “[t]he court may set aside
an entry of default for good cause.” Fed. R. Civ. P. 55(c). A defendant seeking to have a
default set aside must show: (1) good cause to why the default should be set aside (i.e.,
adequately explain why they failed to respond to the lawsuit), (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). The defaulting party must show
that there is a reasonable explanation for the default that does not evidence willfulness.
Passarella v. Hilton Int'l Co., 810 F.2d 674, 678 (7th Cir. 1987). The defaulting party,
therefore, must demonstrate that the default resulted from “mistake, inadvertence,
surprise, or excusable neglect ....” Id. at 676. Entries of default are often set aside when a
party seeks it because the court system has a “policy of favoring trial on the merits over
default judgment.” Cracco, 559 F.3d at 631; id. (describing “the lenient standards” for
setting aside entries of default under Rule 55(c)).
Before diving into the merits, it’s worth mentioning the difference between the
entry of default, on the one hand, and default judgments on the other. The standard for
setting aside the entry of default and the standard for vacating a default judgment are
the same. See, e.g., United States v. DiMucci, 879 F.2d 1488, 1495 (7th Cir. 1989). But the
standard is applied in a more stringent way when a default judgment has been entered.
This is sensible given the text of Rule 55(c) which clearly makes a distinction between
entries of default and default judgments. Vacating a default judgment is more difficult
because Rule 60(b) and its “respect for the finality of judgments” comes into play. Jones
v. Phipps, 39 F.3d 158, 162 (7th Cir. 1994). Thus, in the context of a motion to vacate a
default judgment, a party must show “something more compelling than ordinary lapses
of diligence or simple neglect. . . .” Id. In other words, to vacate a default judgment, the
defaulting party must surmount a “high hurdle.” Id. By contrast, when a party is
seeking to set aside a clerk’s entry of default, the test is “more liberally applied.” Pretzel
& Stouffer v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir. 1994).
With these standards in mind, let’s dive in and see if the defendants have made a
sufficient showing. Attached to the defendants’ motion is the affidavit of Linda Taylor,
the executive secretary for the City of Lake Station’s Mayor’s Office. [See DE 44-1.] In
this affidavit, Ms. Taylor states that she is the person responsible for sorting and
processing mail for the City. The affidavit does not explain the circumstances exactly as
to why or how the summons and complaint in this case were misplaced but suggests a
mistake or error on the part of the assistant to the mayor who is generally responsible
for distributing legal mail to the necessary parties, including the City’s insurance carrier
and the Lake Station Police Department. [Id. at ¶¶ 3-5.] In any event, it seems to be the
case that the summons and complaint in this case was misplaced or lost in transit after it
was received by the City of Lake Station. There is no evidence of willfulness on the part
of any defendant and this appears to be a situation of a general mistake. Ms. Taylor
further states that she received nothing else related to this lawsuit until she received this
Court’s August 5, 2019 Order. [Id. at ¶¶ 6-8.] With no evidence to the contrary, I accept
the statements made in Ms. Taylor’s affidavit. It constitutes good cause. See, e.g., Sims v.
EGA Products, 475 F.3d 865 (7th Cir. 2007).
Next, I must analyze the defendants’ efforts to cure the default. Within two
weeks of this Court’s August 5, 2019 Order, the defendants received the order, obtained
legal counsel, filed their appearances and on August 21, 2019, filed their motion to set
the default aside. That is prompt action, especially as it relates to the individual
defendants who did not have a default entered against them until August 13 because
Ms. Norman (who again, is proceeding pro se) failed to seek a default against the
individual officers at the same time she promptly sought her default against the City of
Lake Station. [See DE 35 (discussing case history).] This was prompt enough action and
satisfies the low burden of Rule 55(c).
Third, I must address whether defendants have a meritorious defense.
Defendants state that as a result of the arrest at issue in Ms. Norman’s complaint, she
has been found guilty of operating a motor vehicle while intoxicated in an Indiana state
court. [DE 44 at ¶ 15.] That of course doesn’t necessarily mean her arrest was without
violations of her constitutional rights. Defendants further state that her complaint does
not contain any violations beyond mere unpleasantness on the part of the arresting
officers. While that isn’t entirely persuasive, and I’m certainly not expressing any view
on the ultimate merits of this case, it is at least a plausible defense and not frivolous on
its face. In other words, it “cannot be characterized as so conclusory as to be fatal.”
Cracco, 559 F.3d at 631. It sufficiently notifies the plaintiff of the defendants’ expected
defense and provides some factual basis for the defense. That is enough at this stage. Id.
The actual merits of that defense, however, will be handled at another time upon an
appropriate motion or at trial.
There is one last matter to address. Ms. Norman filed a letter with the Court
shortly after the defendants’ attorneys entered their appearances. [DE 43.] In this letter,
she attached the defendants’ counsels’ entries of appearance (which were served on her
via mail) and stated that she viewed these as “intimation tactics” and that she “will not
have nothing to do with this firm.” [DE 43.] The letter furthermore contains some rather
incendiary language and disparaging comments about defendants’ attorneys. Ms.
Norman is admonished that in these proceedings she must conduct herself with the
utmost professionalism, regardless of her feelings of having been seriously wronged by
the defendants. The Court will not tolerate otherwise.
Ms. Norman has chosen to represent herself in this lawsuit instead of hiring an
attorney. That is her right, but with that right comes a responsibility. As this matter will
have to be fully litigated, including a potential trial, Ms. Norman will be responsible for
being in contact with defendants’ attorneys. She must also have contact with
defendants’ attorneys in order to facilitate a potential settlement of the case. If she
personally does not want to have contact with the defendants’ lawyers, she will have to
hire her own attorney to handle the case.
For the foregoing reasons, defendants Troy Allen, Kevin McCann, and the City of
Lake Station’s Motion to Set Aside the Entry of Default is GRANTED. These defendants
are ORDERED to answer or otherwise respond to the allegations of Plaintiff Lasandra
Norman’s Amended Complaint within 21 days after entry of this order.
SO ORDERED on November 21, 2019.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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