Greater St. Louis Construction Laborers Welfare Fund et al v. Mason's Landscaping & Construction Services, Inc.

Filing 11

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant's motion to set aside the Clerk's Entry of Default is DENIED. (Doc. No. 8) IT IS FURTHER ORDERED that Defendant is granted five (5) days from the date of this Order to file its answer or other responsive pleading. Signed by Honorable Audrey G. Fleissig on 11/22/2011. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GREATER ST. LOUIS
CONSTRUCTION LABORERS
WELFARE FUND, et. al.,
Plaintiffs,

vs.
MASON’S LANDSCAPING &
CONSTRUCTION SERVICES, INC.,
Defendant.

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Case No. 4:11CV00317 AGF

MEMORANDUM AND ORDER

This matter is before the Court on the motion of Defendant Mason’s Landscaping
& Construction Services, Inc., to set aside, pursuant to Rule 60(b), the Clerk’s Entry of
Default entered herein on September 12, 2011. Defendant acknowledges receipt of the
summons and complaint on May 10, 2011, but contends that its principal, in
communicating with Plaintiff’s counsel, failed to understand the necessity of filing an
answer.
In determining whether to set aside an entry of default pursuant to Rule 60(b) the
Court must consider “whether the conduct of the defaulting party was blameworthy or
culpable, whether the defaulting party has a meritorious defense, and whether the other
party would be prejudiced if the default were excused.” See Stephenson v. El-Batrawi,

524 F.3d 907, 912 (8th Cir. 2008) (quoting Johnson v. Dayton Elec. Mfg. Co., 140 F.3d
781, 784 (8th Cir.1998)).
Upon consideration of these factors, the Court finds that Defendant’s conduct was
not blameworthy, despite its delinquency in answering Plaintiff’s complaint.
“Excusable neglect ‘is understood to encompass situations in which the failure to comply
with a filing deadline is attributable to negligence.’” Jefferson v. Hicks, 364 Fed. A’ppx
281, 283 (8th Cir. 2010) (quoting Ceridian Corp. v. SCSC Corp., 212 F.3d 398, 403 (8th
Cir. 2000)). Whether a party’s neglect of a deadline is excusable “is an equitable
decision turning on all relevant circumstances surrounding the party’s omission.” Id.
(internal quotation marks and citations omitted). “Although inadvertence, ignorance of
the rules, or mistakes construing the rules do not usually constitute excusable neglect, it is
clear that excusable neglect ... is a somewhat elastic concept and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.” Id. (internal
quotation marks and citations omitted). Given the relatively short delay that has ensued,
and Defendant’s alleged confusion about the posture of the case, the Court concludes that
its failure to file a timely answer is not culpable conduct.
Nor does the Court find that Plaintiffs have been prejudiced by Defendant’s failure
to file a timely answer. “[P]rejudice may not be found from delay alone or from the fact
that the defaulting party will be permitted to defend on the merits.” Johnson, 140 F.3d at
785. Instead, the asserted prejudice must be “concrete,” such as the “loss of evidence,
increased difficulty in discovery, or greater opportunities for fraud and collusion.” Id.

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(quoting Berthelson v. Kane, 907 F.2d 617, 621 (6th Cir.1990)). In this case, Plaintiffs
have not offered a showing of prejudice other than a minimal delay of a few months.
Finally, whether Defendant can mount a meritorious defense to Plaintiff’s
complaint remains to be seen, but given the “judicial preference for adjudication on the
merits,” the Court concludes that this factor will not prevent Defendant from prevailing on
its motion. Jefferson at 284 (citing Johnson, 140 F.3d at 784).
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to set aside the Clerk’s
Entry of Default is DENIED. (Doc. No. 8)
IT IS FURTHER ORDERED that Defendant is granted five (5)
days from the date of this Order to file its answer or other responsive pleading.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 22nd day of November, 2011.

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