Callou Corporation v. Kev's Koncrete et al

Filing 42

ORDER granting 41 Motion to Set Aside Default. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CALLOU CORPORATION

CIVIL ACTION

VERSUS

NO.: 14-1701

KEV’S KONCRETE, L.L.C., ET AL.

SECTION: “A”(3)

ORDER
Defendant Michael Munna moves the Court to vacate/set aside the Clerk’s entry of
default on July 21, 2015 (Rec. Doc. 30). Rule 55(a) mandates entry of default where a party fails
to plead or otherwise defend a suit as provided in the Rules. Fed. R. Civ. P. 55(a). Rule 55(c)
provides that for good cause shown the court may set aside an entry of default. Fed. R. Civ. P.
55(c). “Good cause” is to be interpreted liberally. Effjohn Int’l Cruise Holdings, Inc. v. A & L
Sales, Inc., 346 F.3d 552, 563 (5th Cir. 2003) (citing Amberg v. Federal Dep. Ins. Corp., 934
F.2d 681, 685 (5th Cir. 1991)). The court looks to a variety of factors when determining whether
good cause exists including whether the failure to act was willful and whether the party acted
expeditiously to correct the default. Id. (citing Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir.
2000); Dierschke v. O’Cheskey, 975 F.2d 181, 184 (5th Cir. 1992)). The Fifth Circuit has
adopted a policy in favor of resolving cases on their merits and against the use of default
judgments. Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999). The
decision to grant or deny a motion to set aside a default rests within the sound discretion of the
trial court. See Ice Co. Prod. WLL v. C & R Refrig., Inc., No. 05-003, 2005 WL 1799517, *1
(E.D. Tex. July 26, 2005).

No default judgment has been entered in this case. The Clerk entered Defendant’s default
on July 21, 2015. Defendant was unrepresented at the time. On August 30, 2015, Defendant filed
the instant motion through counsel who explained that Mr. Munna promptly sought legal
assistance when he was served with the complaint, prior to the entry of default. However, before
Mr. Munna could obtain counsel, he suffered a stroke. After recovering and upon learning of the
entry of default, Mr. Munna filed a motion for an extension of time so that he could obtain an
attorney. Once he obtained counsel, he filed the instant motion.
In light of the foregoing factual circumstances, the Court concludes that good cause exists
to set aside the entry of default.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Set Aside Default (Rec. Doc. 30) filed by
Defendants is GRANTED.
October 2, 2015

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE