Thomas v. GGP-Mall of Louisiana Holding, LLC et al

Filing 23

ORDER granting 11 Motion to Set Aside Default. Signed by Judge John W. deGravelles on 9/26/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DEBORAH THOMAS

CIVIL ACTION

VERSUS

NO. 14-CV-396

GGP – MALL OF LOUISIANA
HOLDING LLC; HIGBEE LOUISIANA,
LLC AND MACY’S RETAIL HOLDINGS,
INC.

JUDGE deGRAVELLES

MAG. BOURGEOIS

ORDER
Defendant Macy’s Retail Holdings, Inc. (Macy’s) seeks to set aside a default decree entered
on July 25, 2014 at the request of Plaintiff, Deborah Thomas.
On June 27, 2014, Thomas filed suit against Defendants alleging that the Macy’s and
Dillard’s stores within the Mall of Louisiana exhibited several conditions and characteristics which
violated ADA requirements mandating that such facilities be “accessible to and usable by
individuals with mobility disabilities...” (Doc. 1, p. 6.)
Defendants received service of Plaintiff’s Complaint on July 2, 2014. (Docs. 7, 7-1, & 7-2.)
Higbee and GGP, two of the Defendants herein, sought extensions of time in which to respond to
Plaintiff’s Complaint. (Docs. 3 & 4.) The Court granted the requests, giving those Defendants until
August 25, 2014 to file responsive pleadings. (Docs. 5 & 6.) Macy’s did not file a request for
extension of time within which to file responsive pleadings.
Executed service returns were entered into the record on July 24, 2014. (Docs. 7, 7-1, and
7-2.) The following day, July 25, 2014, Thomas sought a default order against Macy’s, which the
Clerk of Court entered the same day. (Docs. 8 & 9.) Macy’s filed a response to Plaintiff’s Complaint
on July 31, 2014, along with the Motion to Set Aside Default presently pending before the Court.
No default was sought against Defedants Higbee and GGP as an extension of time in which to

answer had previously been granted.
Fed.R.Civ.P. 55(c) provides that default decrees may be set aside if the party seeking relief
shows good cause. The decision to set aside a default decree lies within the sound discretion of the
district court. Traquth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983). In determining whether to set aside
a default decree, the district court should consider whether the default was willful, whether setting
it aside would prejudice the adversary, and whether a meritorious defense is presented. Meehan v.
Snow, 652 F.2d 274, 277 (2d Cir. 1981). Although a motion to set aside a default decree under
Fed.R.Civ.P. 55(c) is somewhat analogous to a motion to set aside a judgment under Fed.R.Civ.P.
60(b), the standard for setting aside a default decree is less rigorous than setting aside a judgment
for excusable neglect. Id. at 276.
Here, the record does not indicate and Plaintiff does not argue that Macy’s failure to file a
claim and answer within the time limits was willful. Soon after Macy’s learned of the default,
Macy’s filed an Answer to Plaintiffs’ Complaint, and filed the instant Motion to Set Aside Default.
There is no evidence that Macy’s acted willfully in failing to assert its opposition to the default
proceedings or in failing to timely file an Answer.
Furthermore, there is no evidence in the record that Plaintiff will be prejudiced if the default
decree is set aside. Prejudice to the adversary only exists if circumstances have changed since the
entry of default such that Plaintiff’s ability to litigate her claims has become materially impaired or
if relevant evidence has become lost or unavailable. Accu-Weather, Inc., 779 F. Supp. 801, 802
(M.D. Pa. 1991). As neither of the two Defendants had filed an Answer to Plaintiff’s Complaint at
the time the default was entered, and as Plaintiff has not demonstrated a change in circumstances
since entry of the default which would materially impair her claim, this Court finds Plaintiff will not
be prejudiced if the decree is set aside.

Finally, Defendant’s motion contains a meritorious defense. Macy’s has attached to its
Memorandum in Support of Motion to Set Aside Default the affidavit of Courtney M. Menges, legal
counsel for Macy’s. Ms. Menges, in her affidavit, states that Macy’s did not file a timely response
due to inadvertance and miscalculation. (Doc. 11-2.) The record clearly reveals that only eight days
after it was originally due, Macy’s has filed an Answer to Plaintiff’s Complaint which asserts
affirmative defenses.
In sum, on the record before us, the default was not willful, the Plaintiff will not be
prejudiced if the default decree is set aside, and Defendant alleges a meritorious defense. Therefore,
because there is no reason to deny Defendant a chance to assert its claim, Defendant’s Motion to Set
Aside Default is GRANTED.
Signed in Baton Rouge, Louisiana, on September 26, 2014.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA