Easley v. Schilling Foods, LLC et al
AGREED ORDER granting 16 Motion to Set Aside Default. Signed by District Judge Sharion Aycock on 3/20/2017. (adm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 1:16CV213-SA-DAS
SCHILLING FOODS, LLC,
AND SUPERVALU, INC.
Before the Court for consideration is a Motion to Set Aside Clerk’s Entry of Default
pursuant to Rule 55(c), Federal Rules of Civil Procedure, [Dkt. 16], filed by the Defendant,
Schilling Foods, LLC, (hereinafter “Schilling Foods”).
A Complaint was filed by the Plaintiff against the Defendants, Schilling Foods and Super
Valu, Inc., on November 30, 2016. A waiver of the service of a summons, [Dkt. 10], was
executed by Don Schilling, III, on January 30, 2017, ostensibly on behalf of Schilling Foods,
which indicated that Schilling Foods had sixty (60) days from December 20, 2016, to answer or
responsively plead to the Plaintiff’s Complaint. While Don Schilling, III, is a minority member
of Schilling Foods, he is not an officer, the managing member, or the registered agent for
process. Accordingly, in its motion to set aside, Schilling Foods asserted that the request for the
waiver of process was not addressed to a person or entity designated in Rule 4(d)(1)(A)(ii),
Federal Rules of Civil Procedure. Because no answer or responsive pleading was filed within
the sixty (60) day period set forth on the wavier of process, the Plaintiff filed an application with
the clerk for an entry of default on February 23, 2017, [Dkt. 14], and the clerk entered a default
on February 24, 2017, [Dkt. 15].
The Plaintiff and Schilling Foods have agreed that the clerk’s entry of default should be
set aside, provided that Don V. Schilling, the designated registered agent for process, execute a
waiver of the service of a summons and enter an appearance in this cause on behalf of Schilling
Foods. Schilling Foods is agreeable to this procedure, and will file its Answer and Affirmative
Defenses within ten (10) days thereafter, in a form consistent with its proposed Answer and
Affirmative Defenses, which was attached as Exhibit “B” to its motion to set aside.
The Court is of the opinion that the terms and provisions of this Agreed Order are
reasonable and should be approved.
IT IS, THEREFORE, ORDERED AND ADJUDGED as follows:
The Clerk’s Entry of Default, [Dkt. 15], entered in this cause of action on
February 24, 2017, should be set aside. As such, the Motion to Set Aside Clerk’s Entry of
Default pursuant to Rule 55(c), Federal Rules of Civil Procedure, is sustained.
That Don V. Schilling, the registered agent for process for Schilling Foods, shall
execute a waiver of the service of a summons and enter the appearance of Schilling Foods in this
cause of action.
That within ten (10) days after the execution of the waiver of the service of a
summons, Schilling Foods shall file its Answer and Affirmative Defenses in a form consistent
with Exhibit “B,” attached to its Motion to Set Aside Clerk’s Entry of Default.
IT IS SO ORDERED this the 20th day of March, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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