Nabors v. Malone

Filing 21

ORDER denying 16 Motion for Default Judgment; granting 20 Motion to Set Aside Default. Signed by District Judge Sharion Aycock on 5/9/2018. (dbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MELINDA NABORS
V.

PLAINTIFF
CIVIL ACTION NO.: 1:17-cv-164-SA-DAS

PETE MALONE

DEFENDANT
ORDER

The Clerk entered a notice that pro se Defendant Pete Malone’s Answer was past due on
January 11, 2018, and upon motion of pro se Plaintiff Melinda Nabors, the Clerk entered a default
against Defendant on January 18, 2018. Plaintiff then requested the Court to enter a Default
Judgment against Defendant.1 Several days later, Defendant filed a Motion to Set Aside Entry of
Default [20], as well as his answer to the complaint. Defendant argues that he was unaware of the
necessity to respond to Plaintiff’s complaint until he received the letter of Default from January
18. He states that upon realization, he immediately responded by filing his answer one day later.
Plaintiff did not respond to Defendant’s Motion to set aside the default.
Federal Rule of Civil Procedure 55(c) provides that “[t]he court may set aside an entry of
default for good cause. . .” FED. R. CIV. P. 55(C). The Fifth Circuit Court of Appeals has instructed
district courts to use three factors to determine whether good cause exists to set aside a default: (1)
“whether the default was willful”; (2) “whether setting it aside would prejudice the adversary”;
and (3) “whether a meritorious defense is presented.” Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th
Cir. 2000) (citing In re Dierschke, 975 F.2d 181, 183-84 (5th Cir. 1992)).

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Because the Court today sets aside the Clerk’s Entry of Default [15], Plaintiff’s Motion for Default Judgment [16]
is DENIED.

Analysis and Discussion
The first factor the Court examines is whether the Defendant’s default was willful.
Although it is true that Defendant did not file a responsive pleading with the Court in the time
required by the Federal Rules of Civil Procedure, the record does not support a conclusion that the
Defendant was intentionally ignoring the litigation. Second, the Court looks at whether setting
aside the clerk’s entry of default against Defendant will prejudice Plaintiff. In considering whether
a plaintiff is at risk of prejudice, “the plaintiff must show that the delay will result in loss of
evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion.”
Lacy, 227 F. 3d at 293 (quoting Berthelsen v. Kane, 907 F. 2d 617, 621 (6th Cir. 1990)). Plaintiff
has not alleged prejudice as the Defendant’s motion was unopposed, and the Court is unaware of
any loss of evidence here.
Finally, the Court considers whether the Defendant has presented a meritorious defense.
Ultimately, in determining whether the defendant has presented a meritorious defense, “[t]he
underlying concern is to determine whether there is some possibility that the outcome of the suit
after a full trial will be contrary to the result achieved by the default.” Jenkins & Gilchrist a Prof’l
Corp. v. Groia & Co., 542 F.3d 114, 122 (5th Cir. 2008). Defendant’s Answer lays out defenses
that are potentially meritorious, though the facts are not yet fully developed.
Conclusion
Since most factors support setting aside the clerk’s entry of default against the Defendant,
the Court is satisfied that setting aside the default judgment is proper. Default judgments are
“generally disfavored in the law” and should not be granted on the claim when the defendant
merely “failed to meet a procedural time requirement.” Mason & Hanger-Silas Mason Co. v. Metal
Trades Council, 726 F.2d 166, 168 (5th Cir. 1984). As such, “where there are no intervening

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equities any doubt should, as a general proposition, be resolved in favor of the movant to the end
of securing a trial upon the merits.” Lacy, 227 F. 3d at 292 (citing Gen. Tel. Corp. v. Gen. Tel.
Answering Serv., 277 F.2d 919, 921 (5th Cir. 1960)).
For these reasons, the Defendant’s Motion to Set Aside Entry of Default [20] is
GRANTED, and Plaintiff’s Motion for Default Judgment [16] is DENIED.
SO ORDERED this 9th day of May, 2018.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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