Xerox Corporation v. Graphic Management Services Inc. et al

Filing 30

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
________________________________________
XEROX CORPORATION,
Plaintiff,

11-CV-6156T
ORDER

v.
GRAPHIC MANAGEMENT SERVICES INC.,
GRAPHIC MANAGEMENT SERVICES, INC.,
MHW, INC., and DAVID TABAH,
Defendants.
________________________________________

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.

Plaintiff

filed

an

Amended

Complaint

against

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
manner.
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
the

entry

of

default,

oppose

plaintiff’s

motion

for

a

default

judgment, and seek permission to file an answer to the Amended
Complaint.

According to the defendants, the delay in responding to

the Amended Complaint was inadvertent, and resulted from excusable
neglect.

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.”

The Rule

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
excusable neglect.

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
Complaint.

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
Complaint.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
December 15, 2011
Page -2-