BROADCAST MUSIC, INC. et al v. DOWNTOWN INDY ENTERPRISES, INC. et al

Filing 22

ENTRY ON SECOND MOTION TO SET ASIDE JUDGMENT: GRANTED 18 Motion to Set Aside Default. Court determines that it is appropriate to set aside the entry of default and allow the case to proceed on the merits. To avoid confusion on the docket, the Court will permit docket no. 19 to remain and to operate as the Defendants' answer **SEE ENTRY**. Signed by Judge William T. Lawrence on 4/20/2010. (DWH)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION BROADCAST MUSIC, INC., et al., Plaintiffs, vs. DOWNTOWN INDY ENTERPRISES, INC., d/b/a ICE LOUNGE, et al., Defendants. ) ) ) ) ) CAUSE NO. 1:09-cv-1276-WTL-JMS ) ) ) ) )

ENTRY ON SECOND MOTION TO SET ASIDE JUDGMENT Over the Plaintiffs' objection, the Defendants' motion entitled Second Motion to Set Aside Judgment is GRANTED and the Defendants are GRANTED leave to file their Answer.1 While the Court understands and appreciates the Plaintiffs' position that the Defendants' anticipated defense has no legal merit, and while the test for setting aside an entry of default does speak in terms of articulating a "meritorious" defense, the Court believes that to be a misnomer, in that Cracco v. Vitran Exp., Inc., 559 F.3d 625, 630 (7th Cir. 2009), makes it clear that the question is not whether the defenses asserted have merit, to the extent that "merit" suggests that they are likely to prevail, but rather simply whether the defendant has "notified the plaintiff and the district court of the nature of [the] defense and provided the factual basis for that defense." The Defendants have now done so in this case, and the Court determines that it is appropriate to set aside the entry of default and allow the case to proceed on the merits. SO ORDERED: 04/20/2010
_______________________________ Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana

Copies to all counsel of record via electronic notification

The Defendants inexplicably filed their answer as a separate docket entry (dkt. no. 19) as well as attaching it as an exhibit to their motion. To avoid confusion on the docket, the Court will permit docket no. 19 to remain and to operate as the Defendants' answer.

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