Xerox Corporation v. Graphic Management Services Inc. et al
ORDER denying 16 Motion for Default Judgment; granting 26 Motion to Vacate. Signed by Hon. Michael A. Telesca on 12/15/2011. (BMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GRAPHIC MANAGEMENT SERVICES INC.,
GRAPHIC MANAGEMENT SERVICES, INC.,
MHW, INC., and DAVID TABAH,
Plaintiff Xerox Corporation (“Xerox”), brings this diversity
action against defendants Graphic Management Services Inc., Graphic
Management Services, Inc., MHW, Inc., and David Tabah claiming that
the defendants breached two lease agreements, and a purchase agreement
relating to printing equipment sold or leased by Xerox to the
defendants on September 6, 2011, and having already personally served
the defendants upon filing of the original complaint, served the
Amended Complaint via United States Mail.
Although counsel for the
defendants, who is based in California, (as are the defendants)
contacted plaintiff’s attorney to discuss certain aspects of the case,
the defendants failed to answer or otherwise appear in a timely
On October 4, 2011, plaintiff sought an entry of default from the
Clerk of the Court.
The Clerk of the Court made an entry of default
against the defendants on October 5, 2011. Thereafter, on October 10,
2011, plaintiff moved for a default judgment on grounds that the
defendants had not appeared in or defended the action.
By motion dated November 21, 2011, defendants move to set aside
judgment, and seek permission to file an answer to the Amended
According to the defendants, the delay in responding to
the Amended Complaint was inadvertent, and resulted from excusable
Defendants also contend that their defenses to plaintiff’s
claims are meritorious, and plaintiff would suffer no prejudice if the
court were to grant defendants’ motion and permit defendants to answer
the Amended Complaint.
Rule 55 of the Federal Rules of Civil Procedure provides that the
Court may set aside an entry of default "for good cause.”
provides that an entry of default may also be vacated pursuant to
Rule 60(b), which provides that a party may be relieved from a
judgment based on a party’s mistake, inadvertence, surprise, or
In the instant case, defendants have adequately
explained that the delay in answering the Complaint was the result of
excusable neglect, and I find that plaintiff will in no way be
prejudiced by the defendants short delay in responding to the Amended
Accordingly, I grant defendants’ motion to vacate the
entry of default. Defendants shall have 30 days from the date of this
Order in which to file an Answer or otherwise move against the
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
December 15, 2011
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