United States of America for the use of Ferguson Enterprises, Inc. v. West Bend Mutual Insurance Company

Filing 7

ORDER granting 6 Motion to Set Aside Judgment. The Order and Clerk's Judgment, Doc. Nos. 4, 5, are VACATED. This case is RESTORED to active docket of this Court. Signed by Judge James L Graham on 10/25/12. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
United States of America for
the use of Ferguson
Enterprises, Inc.
Plaintiff,
vs.

Civil Action 2:12-cv-460
Judge Graham
Magistrate Judge King

West Bend Mutual Insurance Company
Defendant.

ORDER
This

case

was

dismissed,

without

prejudice,

after

plaintiff failed to show cause why the record did not demonstrate
timely service of process.

Order, Doc. No. 4; Clerk’s Judgment,

Doc. No. 5. This matter is now before the Court on plaintiff’s
motion

for

relief

from

that

judgment.

Motion

to

Set

Aside

Judgment, Doc. No. 6.
Plaintiff has demonstrated that its failure to respond to
the order to show cause was initially attributable to a docketing
error on the part of the Clerk of this Court.

Its counsel’s

failure to respond after that docketing error was corrected was a
consequence of inadvertence and excusable neglect.
Civ. P. 60(b).

See Fed. R.

Plaintiff has also demonstrated defendant’s waiver

of service of process and plaintiff’s commitment to the prosecution
of the litigation.

Under these circumstances, the Court concludes

that plaintiff’s motion for relief from judgment, Doc. No. 6, is

meritorious.
Plaintiff’s motion for relief from judgment, Doc. No. 6,
is GRANTED. The Order and Clerk’s Judgment, Doc. Nos. 4, 5, are
VACATED. This case is RESTORED to the active docket of this Court.
Plaintiff is ORDERED to file the waiver of service of
process within seven (7) days of the date of this Order.

Date: October 25, 2012

s/James L. Graham
James L. Graham
United States District Judge

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