Jefferson v. 3's Lounge & Package Inc. et al

Filing 16

ORDER - IT IS ORDERED: The defendant 3's Lounge & Package Inc.'s Motion to Set Aside Default Judgment and Leave to File Responsive Pleading (Filing No. 14 ) is granted. 3's Lounge & Package Inc. shall have until June 17, 2016, to file an answer or otherwise respond to the plaintiff's Complaint (Filing No. 1 ). The Clerk of Court shall modify the docket to show that the entry of default is hereby set aside. Ordered by Magistrate Judge Thomas D. Thalken. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

VERYL JEFFERSON,
Plaintiff,

8:16CV38

vs.
3’S LOUNGE & PACKAGE INC.;
RICHARD WALKER; and
DOES 1-5,

ORDER

Defendants.
This matter is before the court on the defendant 3’s Lounge & Package Inc.’s
Motion to Set Aside Default Judgment and Leave to File Responsive Pleading (Filing
No. 14). 3’s Lounge & Package Inc. filed a brief (Filing No. 15) in support of the motion.
The court construes the moving defendant’s motion as one to set aside the clerk’s entry
of default. On April 20, 2016, the Clerk of Court ordered default against 3’s Lounge &
Package Inc. based on its failure to plead or otherwise defendant this action. See Filing
No. 9.

The plaintiff did not seek, nor did the court enter, judgment against this

defendant.
The plaintiff filed the complaint on January 23, 2016. See Filing No. 1. On
March 4, 2016, the plaintiff sought summons only for the defendant 3’s Lounge and
Package Inc., which summons the Clerk of Court issued. See Filing Nos. 5. The
plaintiff filed proof of service for the defendant 3’s Lounge and Package Inc. on March
20, 2016. See Filing No. 6. On April 20, 2016, the Clerk of Court entered default as to
the defendant 3’s Lounge and Package Inc. See Filing No. 9. On May 16, 2016, the
court entered an order requiring the plaintiff to show cause why the case should not be
dismissed against all defendants for failure to prosecute. See Filing No. 11. On May
31, 2016, 3’s Lounge & Package Inc. filed the instant motion for relief from the entry of
default. See Filing No. 14. This defendant argues the court should set aside the default
because: 1) this defendant is not blameworthy or culpable for failing to file a response
to the Complaint, 2) a meritorious defense exists, and 3) the plaintiff would not be
prejudiced by setting aside the entry of default. See Filing No. 15 - Brief p. 1.

ANALYSIS
An entry of default may be set aside “for good cause shown.” Fed. R. Civ. P.
55(c). Although a motion to set aside an entry of default typically involves consideration
of the same factors as a motion to set aside default judgment pursuant to Rule 60(b),
relief from a mere default entry does not require as strong of a showing as excuse from
a default judgment. Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir.
1998). There is a distinction because “it is likely that a party who promptly attacks an
entry of default, rather than waiting for grant of a default judgment, was guilty of an
oversight and wishes to defend the case on the merits.” Id. at 784. After all, the judicial
preference is to adjudicate claims on the merits. Oberstar v. F.D.I.C., 987 F.2d 494,
504 (8th Cir. 1993).
“Traditionally, in deciding issues of this kind, our court and others have looked at
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.” Johnson, 140 F.3d at 783; see also C-B
Kenworth, Inc. v. General Motors Corp., 129 F.R.D. 13, 14-15 (D. Me. 1990) (holding
“assertion of default to be largely technical and further finds that Plaintiff will not be
substantially prejudiced by the filing of a late answer”). Essentially, the court must
determine whether good cause exists to set aside default and allow the defendant to
proceed on the merits. See Fed. R. Civ. P. 6(b), 55(c).
Under the circumstances, the court will construe 3’s Lounge & Package Inc.’s
motion as a motion to set aside entry of default. The delay caused by this defendant’s
failure to file a timely answer will not affect the progression of this matter as another
defendant has not yet filed an answer either. Additionally, this defendant promptly
reacted to the entry of default and diligently attempted to rectify of the matter. Counsel
for the defendant states the defendant only recently retained counsel, in just over one
month from clerk’s entry of default. See Filing No. 15 - Brief p. 1. This defendant
argues the delay in obtaining counsel does not amount to a willful flaunting of the
deadline. The court finds no prejudice to the plaintiff by virtue of the untimely answer.
The plaintiff failed to seek default judgment be entered against this defendant or to
prove service of process on the other named defendant. Finally, the moving defendant
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presents a defense, which may prove meritorious.

Accordingly, the court finds the

matter should be decided on the merits of the parties’ positions. Based on the facts
before the court, good cause exists to grant the motion to set aside the clerk’s entry of
default. Upon consideration,

IT IS ORDERED:
1.

The defendant 3’s Lounge & Package Inc.’s Motion to Set Aside Default

Judgment and Leave to File Responsive Pleading (Filing No. 14) is granted.
2.

3’s Lounge & Package Inc. shall have until June 17, 2016, to file an

answer or otherwise respond to the plaintiff’s Complaint (Filing No. 1).
3.

The Clerk of Court shall modify the docket to show that the entry of default

is hereby set aside.
Dated this 3rd day of June, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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