Ancar v. Robertson et al

Filing 23

ORDER granting 15 Motion to Set Aside Judgment. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 7/25/2018. (SGO)

MIDDLE DISTRICT OF LOUISIANA

ALLEN ANCAR (#299054)

CIVIL ACTION

VERSUS
18-03-JWD-RLB
RANDALL ROBERTSON, ET AL.
ORDER
Before the Court is a Motion to Set Aside Clerk’s Entry of Default (R. Doc. 15) filed on
behalf of defendants Randall Robertson and William Folk. No opposition has been filed to the
motion. The motion is therefore unopposed.
Defendants Robertson and Folk were served on May 7, 2018, and on June 8, 2018 an
entry of default was entered against defendants Robertson and Folk pursuant to the plaintiff’s
Motion. See R. Docs. 10, 12 and 13. On June 13, 2018, defendants Robertson and Folk filed the
instant motion, wherein they assert that that the entry of default should be set aside due to a delay
in the assignment of counsel, there would be no prejudice to the plaintiff, and they have a
meritorious defense to the plaintiff’s claims.
“The court may set aside an entry of default for good cause.” Federal Rule of Civil
Procedure 55(c). “We are mindful that ‘good cause’ is not susceptible of precise definition, and
no fixed, rigid standard can anticipate all of the situations that may occasion the failure of a party
to answer a complaint timely.” In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992). “In
determining whether to set aside a default decree, the district court should consider whether the
default was willful, whether settling it aside would prejudice the adversary, and whether a
meritorious defense is presented.” Id. These factors are not exclusive, and another factor
includes if defendant acted expeditiously to correct the default. Id. “When ... a defendant's
neglect is at least a partial cause of its failure to respond, the defendant has the burden to

convince the court that its neglect was excusable, rather than willful, by a preponderance of the
evidence.” In re Chinese-Manufactured Drywall Products, 742 F.3d 576, 594 (5th Cir. 2014).
Here, the above factors weigh in favor of setting aside the entry of default. First, the
defendants’ default does not appear willful. Rather, there was a delay between service of process
and assignment of counsel. Second, the Court does not believe that the plaintiff would be
prejudiced by having to prove the merits of his claims, particularly considering the fact that this
case has no trial date set. Third, it appears that defendants may have a meritorious defense to the
federal claims pending against them. And fourth, the defendants acted expeditiously in
correcting the problem. The entry of default occurred on June 8, 2018, and the defendants
answered this suit on June 13, 2018. See R. Docs. 13 and 14.
In sum, defendants Robertson and Folk have demonstrated that setting aside the entry of
default is appropriate. Accordingly,
IT IS ORDERED that defendants’ Motion (R. Doc. 15) is GRANTED.
Signed in Baton Rouge, Louisiana, on July 25, 2018.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE