Beelman-Soto Productions, LLC, et al v. Foreshadow Photography, LLC, et al

Filing 29

ORDER granting 18 Motion to Set Aside Default. Signed by Judge Jay C. Zainey on 2/10/15. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BEELMAN-SOTO PRODUCTIONS,
LLC, ET AL.

CIVIL ACTION

VERSUS

NO: 14-1953

FORESHADOW PHOTOGRAPHY, LLC,
ET AL.

SECTION: "A" (5)

ORDER AND REASONS
Before the Court is a Motion to Set Aside Entry of Default
(Rec. Doc. 18) filed by defendant Merrill Capps.
the motion.

Plaintiffs oppose

The motion, set for hearing on January 28, 2015, is

before the Court on the briefs without oral argument.
On December 29, 2014, Plaintiffs moved for entry of default
against defendants Merrill Capps and Foreshadow Photography, LLC
(Rec. Doc. 15).

On December 30, 2014, the Clerk entered default

against the defendants.

(Rec. Doc. 16).

defendant Capps answered the complaint.1

On December 31, 2014,
(Rec. Doc. 17).

Capps now moves to have the entry of default set aside citing
a good faith error in failing to properly file an answer in this
Court after the present litigation was removed from state court.
Capps states that he did not receive any notice about the

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Capps, at the time proceeding pro se, also attempted to
answer on behalf of his company, defendant Foreshadow Photography,
LLC. However, he was informed that a company must be represented by
a licensed attorney to appear in federal court. See, e.g., Memon v.
Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir. 2004) (citations
omitted). Counsel for defendant Foreshadow Photography, LLC was
enrolled on January 28, 2015 but has not yet filed an answer on
behalf of the company. (Rec. Doc. 25).

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proceedings in this case after removal. He claims that a phone call
from counsel for defendant Todd Klick on December 29, 2014, after
Plaintiffs moved for an entry of default, was his first indication
that further action was required from him.
Rule 55(a) mandates entry of default where a party fails to
plead or otherwise defend a suit as provided in the Rules.
Civ. P. 55(a).

Fed. R.

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).
Capps has moved expeditiously to set aside the entry of
default, and he answered the complaint the day after the entry of

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default.

The docket sheet reveals that very little has taken place

in this litigation except with regard to the instant default.
Given the Fifth Circuit’s policy in favor of resolving cases on
their merits, the Court in its discretion will vacate the entry of
default as to defendant Merrill Capps.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Set Aside Entry of Default
(Rec. Doc. 18) filed by defendant Merrill Capps is GRANTED.

The

entry of default as to defendant Merrill Capps is VACATED.2
February 10, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

2

The Court notes that counsel has not yet moved to set aside
the entry of default against defendant Foreshadow Photography, LLC.
Therefore, the Court does not address the entry of default against
that defendant at this time.

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