Moore et al v. All Cities Mortgage and Financial, Incorporated et al

Filing 23

ORDER granting 20 Motion to Set Aside 6 Clerks Entry of Default as to U. S. Bank National Association. Signed by District Judge Sean F Cox. (JHer)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Richard Moore, Cynthia Moore, husband and wife, Plaintiffs, v. All Cities Mortgage and Financial, Inc., et al., Case No. 08-15248 Honorable Sean F. Cox

Defendants. __________________________________________/ ORDER GRANTING DEFENDANT U.S. BANK NATIONAL ASSOCIATION'S MOTION TO SET ASIDE CLERK'S ENTRY OF DEFAULT This matter is currently before the Court on Defendant U.S. Bank National Association's Motion to Set Aside Clerk's Entry of Default. The Court finds that oral argument would not significantly aid the decisional process and therefore orders that the motions will be decided upon the briefs. See Local Rule 7.1(e)(2), U.S. District Court, Eastern District of Michigan. For the reasons below, the Court shall GRANT the motion. Plaintiffs filed this action in state court. The action was removed to this Court on December 22, 2008. On January 27, 2009, a Clerk's Entry of Default was entered against Defendant U.S. Bank National Association ("U.S. Bank"). (Docket Entry No. 6). Plaintiffs have not obtained a default judgment against U.S. Bank in this action. On February 2, 2009, U.S. Bank filed its Answer and Affirmative Defenses. (Docket Entry No. 12). On March 18, 2009, U.S. Bank filed the instant motion seeking to set aside the 1

clerk's entry of default. Plaintiffs have not filed any response in opposition to the motion and the time for doing so has passed. Federal Rule of Civil Procedure 55(c) provides that "[f]or good cause shown the court may set aside an entry of default." When evaluating either a motion to set aside an entry of default or a default judgment, the court considers three factors: 1) whether the default was the result of the defendant's willful or culpable conduct; 2) whether the plaintiff would be prejudiced if the default is set aside; and 3) whether the defendant asserts any meritorious defenses to the claims. United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 844-45 (6th Cir. 1989). "Rule 55(c) leaves to the discretion of the trial judge the decision whether to set aside an entry of default. However, a strong preference for trials on the merits in federal courts had led to the adoption of a somewhat modified standard of review where defaults are involved." Shepard Claims Service, Inc. v. William Darrah & Associates, 796 F.2d 190, 193 (6th Cir. 1986). In practice, a "somewhat more lenient standard" is applied where, as here, there has only been an entry of default and no default judgment has been issued. Id. After reviewing Defendant U.S. Bank's unopposed motion, the Court finds the applicable standard has been satisfied here and that the Court should set aside the clerk's entry of default. Accordingly, IT IS ORDERED that Defendant U.S. Bank's Motion to Set Aside Clerk's

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Entry of Default is GRANTED. IT IS SO ORDERED. S/Sean F. Cox Sean F. Cox United States District Judge Dated: April 15, 2009 I hereby certify that a copy of the foregoing document was served upon counsel of record on April 15, 2009, by electronic and/or ordinary mail. S/Jennifer Hernandez Case Manager

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