Menard, Inc. v. Dial-Columbus, LLC et al

Filing 20

MEMORANDUM AND ORDER - The defendants' Motion to Set Aside Entry of Default (filing 14 ) is granted. The Clerk's Entry of Default (filing 12 ) is set aside. The defendants shall have until July 27, 2012, to file their responsive pleadings or motions. Ordered by Judge John M. Gerrard. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MENARD, INC., a Wisconsin
corporation,
4:12-CV-3077
Plaintiff,
vs.

MEMORANDUM AND ORDER

DIAL-COLUMBUS, LLC a/k/a DIAL
COLUMBUS LLC, a Nebraska
limited liability company; DKCCOLUMBUS, LLC, a Nebraska
limited liability company; and TERRY
L. CLAUFF, a Nebraska resident,
Defendants.
This matter is before the Court on the defendants' Motion to Set Aside
Entry of Default (filing 14). No response has been filed in opposition to the
defendants' motion. The motion is granted.
The procedural history of this case is not complex. The plaintiff filed its
complaint (filing 1) on April 19, 2012. Service of process was effectuated on
April 24. Filings 7, 8, and 9. The defendants' answers were due on May 15,
see Fed. R. Civ. P. 12(a)(1), but no answer was filed. On May 22, the plaintiff
moved for a clerk's entry of default, which was entered the same day. Filings
10 and 12. Notices of the clerk's entry of default were mailed to the
defendants on May 22, and on May 30, the present motion to set aside the
entry of default was filed.
Fed. R. Civ. P. 55(c) provides that the Court "may set aside an entry of
default for good cause . . . ." When examining whether good cause exists, the
Court weighs 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.
Stephenson v. El-Batrawi, 524 F.3d 907, 912 (8th Cir. 2008). And although
the same factors are typically relevant in deciding whether to set aside
entries of default and default judgments, relief from a default judgment
requires a stronger showing of excuse than relief from a mere default order.
Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998). The

defendants here are entitled to the more lenient "good cause" standard in
considering its motion to set aside. See id.
Here, the defendants' explanation for their default is that confusion
and miscommunication among the various defendants resulted in a failure to
file a timely response. Filing 15 at 4. While this does not exonerate them, it is
understood that relief from a default may be available even when the failure
to comply with the filing deadline is attributable to negligence. Ceridian
Corp. v. SCSC Corp., 212 F.3d 398, 403 (8th Cir. 2000). And the Eighth
Circuit draws a distinction between contumacious or intentional delay or
disregard for deadlines and procedural rules, and a "'marginal failure'" to
meet pleading or other deadlines. Johnson, 140 F.3d at 784
In this case, the evidence shows a "good faith, relatively brief default in
the filing of an initial pleading, caused by poor communication" among the
defendants. See id. The defendants have also alleged the existence of several
meritorious defenses to the plaintiff's claim, and obviously, the plaintiff's
failure to oppose the defendants' motion means that the merits of those
defenses are uncontested for purposes of this motion. Along the same lines,
the plaintiff's failure to oppose the motion means that there is no basis for
concluding that the plaintiff has been prejudiced in a "concrete way," see
Stephenson, 524 F.3d at 915, given that "prejudice 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. Therefore,
IT IS ORDERED:
1.

The defendants' Motion to Set Aside Entry of Default (filing
14) is granted.

2.

The Clerk's Entry of Default (filing 12) is set aside.

3.

The defendants shall have until July 27, 2012, to file their
responsive pleadings or motions.

Dated this 6th day of July, 2012.
BY THE COURT:

John M. Gerrard
United States District Judge
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