VILEN-BURCH v. BURCH

Filing 20

ORDER denying 18 Plaintiff's Motion For Entry of Default - The Court DENIES Ms. Vilen-Burch's Motion for Entry of Default, [dkt. 18 ]. For clarity of the record, however, the Court ORDERS Mr. Burch to file an Answer to the Complaint by April 22, 2013 so that the parties' positions are set forth in advance of the May 1, 2013 hearing. The Court also reminds the parties that any pre-hearing briefs shall be filed by April 24, 2013. [See dkt. 15 at 1.]. Signed by Judge Jane Magnus-Stinson on 4/10/2013. (copy to Jerry Burch via US Mail and via email) (JKS) Modified on 4/10/2013 (JKS).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MERITA VILEN-BURCH,
Plaintiff,
vs.
JERRY L. BURCH,
Defendant.

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1:13-cv-00216-JMS-TAB

ORDER
On April 8, 2013, Plaintiff Merita Vilen-Burch filed a Motion for Entry of Default based
on Defendant Jerry Burch’s “failure to plead or otherwise defend as provided by the Federal
Rules of Civil Procedure….” [Dkt. 18.] In support of her motion, Plaintiff submitted an affidavit from her counsel which stated that Mr. Burch was served with the Complaint, that he “has not
pled, answered or otherwise defended,” and that “the time for [him] to answer, plead or otherwise defend has been extended by the Court through March 18, 2013, which date has passed
without filing of a responsive pleading by [him].” [Dkt. 18-1.]
Fed. R. Civ. P. 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.” Here, while Mr. Burch has not timely answered the Complaint, he has “defended” this action – through attendance at a March 8, 2013
telephonic status conference, [see dkt. 15 at 1 (“Plaintiff appeared by counsel and Defendant appeared in person March 8, 2013, for a telephonic status conference”)], and by filing a Motion for
Extension relating to the due date for his Answer, [dkt. 16].
The Court finds that both of these actions demonstrate Mr. Burch’s intention to “defend”
this matter and, accordingly, DENIES Ms. Vilen-Burch’s Motion for Entry of Default, [dkt. 18].

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For clarity of the record, however, the Court ORDERS Mr. Burch to file an Answer to the Complaint by April 22, 2013 so that the parties’ positions are set forth in advance of the May 1, 2013
hearing. The Court also reminds the parties that any pre-hearing briefs shall be filed by April 24,
2013. [See dkt. 15 at 1.]
04/10/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Amy Kathleen Noe
[e-mail]

Distribution via U.S. Mail:
Jerry L. Burch
1369 W. Dan Grazin Dr.
Connersville, IN 47331

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