State Farm Fire and Casualty Company v. Lowe's Companies, Inc. et al

Filing 53

ORDER granting 51 Motion to Withdraw and granting 52 Motion to Set Aside Default. The Clerk of Court's Entry of Default [DE 41] is SET ASIDE. Godfrey shall file a response to the second amended complaint within 14 days of the date of this Order. Signed by Senior Judge James C. Fox on 2/25/2016. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-441

STATE FARM FIRE AND CASUALTY
INSURANCE COMPANY,
Plaintiff,
vs.
LOWE'S COMPANIES , INC. , KEVIN
SAUL, individually and d/b/a Saul Mobile
Appliances, and EDDIE GODFREY,
individually and d/b/a Tri-County
Appliance Services,
Defendants.

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ORDER

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Before the Court are the following unopposed motions : (1) Plaintiffs Motion to
Withdraw Motion for Default Judgment [DE 51] ; and (2) Defendant Eddie Godfrey's Motion to
Set Aside Entry of Default and to file an answer out of time pursuant to Rule 55(c) of the Federal
Rules of Civil Procedure [DE 52].
A court may "set aside an entry of default for good cause." FED. R. Clv. P. 55(c).
Although the Fourth Circuit Court of Appeals disfavors defaults and encourages decisions on the
merits, see Colleton Preparatory Acad. , Inc. v. Hoo ver Universal, 616 F.3d 413, 417 (4th Cir.
201 0), the decision to set aside an entry of default "is a matter which lies largely within the
discretion of'' the district court.

Payne v. Brake, 439 F.3d 198, 204 (4th Cir. 2006).

In

exercising this discretion, a district court "should consider whether the moving party has a
meritorious defense, whether it acts with reasonable promptness, the personal responsibility of
the defaulting party, the prejudice to the [plaintiff] , whether there is a history of dilatory action,

State Farm Fire & Casualty Co. v. Lowe's Companies, Inc. el a!.
No . 5:14-CV-441-F
Page 2

and the availability of sanctions less drastic." Payne ex ref. Estate of Calzada v. Brake, 439 F.3d
198, 204-05 (4th Cir. 2006) (alteration added). Here, upon considering the above factors and
Plaintiffs request to withdraw its motion for default judgment, the Court finds good cause exists
to set aside the entry of default. 1
Based on the foregoing, it is ORDERED as follows:
1. Plaintiffs Motion to Withdraw Motion for Default Judgment [DE 51] is ALLOWED;
2. Godfrey's Motion to Set Aside Entry of Default [DE 52] is ALLOWED;
3. The Clerk of Court's Entry ofDefault [DE 41] is SET ASIDE; and
4. Godfrey shall file a response to the second amended complaint within 14 days of the date
of this Order.

SO ORDERED.
This the~('· day ofFebruary, 2016.

J~FOX
Senior United States District Judge

Godfrey's counsel explains the entry of default against his c lient arose due to a technical malfunction that
prevented counsel from receiving notices of e lectronic filings from the court. The court reminds counsel of his case
management duties . Despite acknowledging receipt of plaintiffs motion for reconsideration on March 5, 20 I 5,
counsel never questioned the status of this motion . Indeed, it appears counse l ignored this matter until the week of
February I 5, 2016. See Aff. Edwin W. Bowden ~ 4-5 ("I did not receive any further filings or notices from the
Court until I quite by accident and/or providence discovered a filing in my junk emai l box approximately one week
ago."). While the court sympathizes w ith counsel's technical difficulties, such difficulties do not explain counsel's
fai lure to review this case and CM-ECF on a periodic basis.