Kalitta Air, LLC v. GSBD & ASSOCIATES LLC, et al
ORDER DENYING DEFENDANT CYNTHIA WESTMANS 98 MOTION TO SET ASIDE 96 CLERKS DEFAULT. Signed by District Judge Bernard A. Friedman. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
KALITTA AIR, LLC,
Civil Action No. 12-CV-13554
HON. BERNARD A. FRIEDMAN
GSBD & ASSOCIATES, LLC,
FIRST INTERNATIONAL EXCHANGE CORP., INC.,
FIRST INTERNATIONAL EXCHANGE GROUP, INC.,
CREE ENTERPRISES, LLC,
JUDITH CECILIA TAITE GOTTSHCALK,
STEPHEN SCOTT WESTMAN,
DHAFIR D. DALALY,
HAMOOD RUNCO & FERGESTROM,
SHELDON SANDWEISS and
MICHAEL T. LYON,
ORDER DENYING DEFENDANT CYNTHIA WESTMAN’S
MOTION TO SET ASIDE CLERK’S DEFAULT
This matter is presently before the Court on the motion of defendant Cynthia Westman “to
dismiss / set aside (Rule 60) or vacate entry of default” [docket entry 98]. Plaintiff has filed a response in
opposition. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion on the briefs.
This is a multi-count, multi-defendant, fraud, RICO, conversion, breach of contract and
conspiracy case. Defendant Cynthia Westman, who is representing herself, signed a Waiver of the Service
of Summons form on December 20, 2012 [docket entry 68], acknowledging that she had received a copy of
the complaint, that she waived formal service, and that she had 60 days from November 20, 2012, to file an
answer or a motion to dismiss pursuant to Fed. R. Civ. P. 12.
On February 21, 2013, well past the 60-day deadline to do so, defendant filed a motion to
dismiss [docket entry 89], essentially denying any involvement in the scheme alleged in the complaint. On
March 4, 2013, the Court denied defendant’s motion, and a similar motion filed by another defendant, for the
These motions must be denied because they do not seek dismissal for any
of the reasons listed in Fed. R. Civ. P. 12(b) (i.e., lack of subject matter
jurisdiction, lack of personal jurisdiction, improper venue, insufficient
process or service of process, failure to state a claim or
failure to join a required party). Defendants’ argument – essentially, that
they were not involved and did nothing wrong – goes to the merits of the
claims, not to whether claims has been stated and are procedurally proper.
Defendants therefore do not seek dismissal under Rule 12(b) but rather
summary judgment under Rule 56, and generally a party may not seek
summary judgment until after the opposing party has had a fair opportunity
to conduct discovery.
Docket entry 91.
Pursuant to Fed. R. Civ. P. 12(a)(4)(A), defendant was required to file a responsive pleading
within 14 days after receiving notice of the Court’s order denying her motion to dismiss. Assuming defendant
received a copy of the Court’s order within three days, her answer to the complaint was due by March 21,
2013. On May 16, 2013, plaintiff requested that the clerk enter defendant’s default [docket entry 94], as she
still had not answered the complaint. On May 17, 2013, the clerk entered defendant’s default [docket entry
In the motion now before the Court, defendant asks that the clerk’s default be set aside but
she offers no explanation for having failed to answer the complaint, which was due more than three months
ago. Without offering any detail or supporting documentation, defendant says only that she “requested an
extension of time to respond to allegations from Civil Action Number 12-13554 . . . [and that] Angela
Jackson, Attorney for Plaintiff granted an extension to respond due to my father’s illness with cancer.” Def.’s
Mot. at 2. Defendant then goes on to repeat the arguments she presented in her earlier motion to dismiss,
namely, that she knows nothing about plaintiff’s allegations.
Under Fed. R. Civ. P. 55(c), the Court “may set aside an entry of default for good cause.”
In deciding a motion under this rule, the Court must consider “whether (1) the default was willful, (2) a
set-aside would prejudice plaintiff, and (3) the alleged defense was meritorious.” United Coin Meter Co., Inc.
v. Seaboard Coastline RR, 705 F.2d 839, 844 (6th Cir. 1983), quoting Keegel v. Key West & Caribbean
Trading Co., Inc., 627 F.2d 372, 373 (D.C. Cir. 1980). In the present case, the first factor weighs against
setting aside the default, as defendant is now more than three months late in answering the complaint and the
excessive tardiness appears to be willful. The second factor weighs in favor of setting aside the default, as
defendant’s failure to answer does not appear to have prejudiced plaintiff. The third factor is entitled to little
weight either way, as the Court cannot evaluate defendant’s defense that she has no involvement in the
scheme alleged in the complaint.
In light of defendant’s unexcused failure to answer the complaint, the Court shall deny her
motion at this time to set aside the clerk’s default. If defendant answers the complaint within ten days of the
date of this order, she may renew her motion to set aside the clerk’s default. If defendant fails to answer the
complaint within ten days of the date of this order, plaintiff may file a motion for entry of default judgment
Dated: June 27, 2013
S/ Bernard A. Friedman___________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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