Luttrell v. 2 Management of South Dakota et al

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Motion of Plaintiff Tracy Luttrell for Entry of Clerks Default against Defendant Kenneth Peterson Doc. No. 6 is DENIED. IT IS FURTHER ORDERED that the Motion of Defendant Kenneth Peterson to Set A side Clerks Entry of Default and for Extension of Time to File Answer to Plaintiffs Complaint is GRANTED in part and DENIED in part as follows: Defendants request for extension of time shall be granted, and Defendant Peterson shall have fourteen additional days, to and including March 3, 2014, to respond to the Complaint. Defendants motion to set aside Entry of Default, is Denied as moot. Doc.No. 10 . Signed by District Judge Audrey G. Fleissig on 2/18/2014. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRACY LUTTRELL,

)
)
Plaintiff,
)
)
vs.
)
)
2 MANAGEMENT OF SOUTH DAKOTA, )
INC. and KENNETH PETERSON,
)
)
Defendants.
)

Case No. 4:13CV02586 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the Motion of Plaintiff Tracy Luttrell for Entry
of Clerk’s Default against Defendant Kenneth Peterson (Doc. No. 6) and the Motion of
Defendant Kenneth Peterson to Set Aside Clerk’s Entry of Default and Request for
Extension of Time to File Answer to Plaintiff’s Complaint (Doc. No. 10). As noted in
Defendant’s motion, Peterson’s answer was due on February 12, 2014. Counsel for
Peterson was first retained on February 14, 2014, and spoke with counsel for Plaintiff on
February 17, 2014, requesting fourteen (14) additional days to respond to the complaint.
Counsel for Plaintiff declined the request for additional time, and indicated he would be
filing a motion for the clerk to enter default. No Clerk’s Order of Default has been
entered.
The Eighth Circuit has Afrequently endorsed the strong judicial policy against
default judgments@ and a Ajudicial preference for adjudication on the merits. . . .@
Oberstar v. F.D.I.C., 987 F.2d 494, 504 (8th Cir. 1993). Here, the Court notes that
Defendant requested additional time to respond just five days after the response was due

and apparently before Plaintiff filed the motion for entry of default. The Court further
notes that Plaintiff agreed to grant the co-defendant additional time to respond, and in his
motion for entry of default does not assert that any undue prejudice will be suffered if
default is not entered. Inasmuch as the case has only recently been filed, and the Court
can discern no undue prejudice that Plaintiff will suffer should Defendant Peterson be
allowed additional time to answer, Defendant’s request for additional time shall be
granted, and the motion for entry of an order of default shall be denied. The Court sees
no just cause to prohibit Defendant from defending the case on the merits.
Accordingly,
IT IS HEREBY ORDERED that the Motion of Plaintiff Tracy Luttrell for Entry
of Clerk’s Default against Defendant Kenneth Peterson [Doc. No. 6] is DENIED.
IT IS FURTHER ORDERED that the Motion of Defendant Kenneth Peterson to
Set Aside Clerk’s Entry of Default and for Extension of Time to File Answer to
Plaintiff’s Complaint is GRANTED in part and DENIED in part as follows:
Defendant’s request for extension of time shall be granted, and Defendant Peterson shall
have fourteen additional days, to and including March 3, 2014, to respond to the
Complaint. Defendant’s motion to set aside Entry of Default, is Denied as moot. [Doc.
No. 10].

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 18th day of February, 2014.

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