Adams v. Winfield Hospitality, Inc.

Filing 12

MEMORANDUM AND ORDER granting 9 Motion to Set Aside 6 Clerks Entry of Default ; granting 9 Motion for Leave to Answer out of time. The Defendant shall file an answer to the complaint no later than 14 days from the present Order. Signed by District Judge J. Thomas Marten on 05/22/2018. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GUADALUPE ADAMS,
Plaintiff,
vs.

Case No. 18-1039-JTM

WINFIELD HOSPITALITY, INC.,
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on the defendant’s motion to set aside the default
previously entered by the Clerk of the Court, and for extension of time to answer. (Dkt. 9).
Under Fed. R.Civ.P. 55(c), the court may set aside an entry of default for good cause.
This standard is a less demanding standard than the excusable neglect which must be
shown for relief from judgment under Fed.R.Civ.P. 60(b). See Dennis Garberg & Assocs. v.
Pack–Tech Int'l, 115 F.3d 767, 775 n.6 (10th Cir.1997). The standard is liberal because “the
preferred disposition of any case is upon its merits and not by default judgment.” Gomes
v. Williams, 420 F.2d 1364, 1366 (10th Cir.1970).
In deciding whether to vacate a default, the court will consider (1) whether the
defendant's culpable conduct led to the default; (2) whether plaintiff will be prejudiced by
setting aside the entry of default; and (3) whether defendant has a meritorious defense.

Gilmore v. Carlson, 72 Fed.Appx. 798, 801 (10th Cir.2003). “A court need not consider all of
the factors, and may consider other factors as well.” Guttman v. Silverberg, 167 Fed.Appx.
1, 4 (10th Cir.2005). The decision to set aside an entry of default lies within the discretion
of the trial court. Ashby v. McKenna, 331 F.3d 1148, 1152 (10th Cir.2003).
Here, default was entered after the plaintiff obtained service of process on “Magi
Bhakta as Authorised Agent” for Winfield Hospitality, Inc., (Dkt. 4). The defendant argues
that no proper service was obtained, as the agent actually authorized to accept service is
Jagdish Bhakta, according to records from the Kansas Secretary of State.
Defendant further stresses that it has acted promptly to cure the default (filing its
motion less than two weeks after default was entered), and that plaintiff will not be
prejudiced by setting the default aside. The plaintiff has filed no response to the motion to
set aside.
For good cause shown, and pursuant to D.Kan.R. 7.4, the court hereby grants the
defendant’s motion. (Dkt. 9). Defendant shall file an answer to the complaint no later than
14 days from the present Order.
IT IS SO ORDERED this 22nd day of May, 2018.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE