Hawn v. Cook Pump Company et al

Filing 38

OPINION AND ORDER by Judge Claire V Eagan that HS Field Services, Inc.'s answer or other responsive pleading is due no later June 24, 2014. ; vacating/setting aside order(s); granting 31 Motion to Set Aside Clerks Entry of Default ( Re: 28 Clerk's Entry of Default, Ruling on Motion for Entry of Default by Clerk, 10 Third Party Complaint, 31 MOTION to Set Aside Clerks Entry of Default ) (Documents Terminated: 28 Clerk's Entry of Default, Ruling on Motion for Entry of Default by Clerk ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

BRANDON K. HAWN,
Plaintiff,
v.
COOK PUMP COMPANY et al.,
Defendants.

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Case No. 13-CV-0529-CVE-TLW

OPINION AND ORDER
Now before the Court is HS Field Services, Inc.’s Motion to Set Aside Default Judgment
(Dkt. # 31). Third-party Defendant HS Field Services, Inc. (HS) asks the Court to set aside the
default (Dkt. # 28) entered by the Court Clerk. HS claims that defendant Constellation Energy
Partners LLC (Constellation) filed third-party claims against HS, but it served process on Jack M.
Hough with the knowledge that Hough was in poor health. Dkt. # 31, at 2. The Court has reviewed
HS’ motion and, to avoid unnecessary delays to the other parties, the motion should be ruled on
without waiting for a response from Constellation.
Plaintiff Brandon K. Hawn filed this case alleging that he was injured in a workplace
accident, and he has asserted claims of negligence and manufacturer’s products liability against
Cook Pump Company (Cook) and Constellation.1 Constellation filed third-party claims (Dkt. # 10)
for breach of contract and indemnification against HS, and it served Hough, the registered agent for
HS, on April 8, 2014. Dkt. # 26. HS did not file an answer or other responsive pleading to the third-

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Hawn alleges that Cook and Constellation were not his employers, but Constellation disputes
this allegation and claims that it is treated as Hawn’s employer under Oklahoma law. See
Dkt. # 9, at 4.

party complaint, and Constellation asked the Court Clerk to enter HS’ default. The Court Clerk
entered HS’ default (Dkt. # 28) on May 23, 2014, but Constellation has not filed a motion for entry
of default judgment against HS. Even though HS has not filed an answer, it is represented by
counsel and HS’ counsel has entered an appearance in this case. Dkt. # 29. The parties have also
filed a joint status report (Dkt. # 33) and HS participated in the preparation of the joint status report.
The Federal Rules of Civil Procedure authorize the entry of default “[w]hen a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided
by these rules. . . .” Fed. R. Civ. P. 55(a). The court may set aside the entry of default for “good
cause shown.” Fed. R. Civ. P. 55(c). The standard for setting aside entry of default “poses a lesser
standard for the defaulting party than the excusable neglect which must be shown for relief from
judgment under Fed. R. Civ. P. 60(b).” Dennis Garberg & Associates, Inc. v. Pack-Tech Intern.
Corp., 115 F.3d 767, 775 n.6 (10th Cir. 1997). “In deciding whether to set aside an entry of default,
courts may consider, among other things, ‘whether the default was willful, whether setting it aside
would prejudice the adversary, and whether a meritorious defense is presented.’” Pinson v. Equifax
Credit Information Servs., Inc., 316 Fed. Appx. 744 (10th Cir. Mar. 10, 2009) (quoting Dierschke
v. O’Cheskey, 975 F.2d 181, 183 (5th Cir. 1992)).2 Default judgments are not favored, as the
preferred practice is to decide cases on their merits. Katzson Bros., Inc. v. United States
Environmental Protection Agency, 839 F.2d 1396, 1399 (10th Cir. 1988); Gomes v. Williams, 420
F.2d 1364, 1366 (10th Cir. 1970). The defaulting party has the burden to prove that the entry of

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Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. 32.1: 10th Cir. R. 32.1.
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default should be set aside. Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939, 943 (10th Cir.
1987).
HS asks the Court to set aside the Court Clerk’s entry of default, because its failure to answer
the third-party complaint was not willful and Constellation will not be prejudiced if the Court
Clerk’s entry of default is set aside. Although HS complains that Constellation served process on
Hough, the return of service states that Hough is the registered agent for HS and it appears that
service was proper. See Dkt. # 26. However, HS states that Hough is in poor health and that he was
not involved in the day to day operations of the business. Dkt. # 31, at 2. After receiving notice of
the lawsuit, HS participated in the preparation of a joint status report (Dkt. # 33), and HS’ default
has not delayed the proceedings. There is no basis for the Court to find that Constellation would be
prejudiced if the Court Clerk’s entry of default were set aside. HS has also identified defenses it
intends to raise in opposition to Constellation’s third-party claims, and there is a strong preference
for resolving claims on the merits. The Court finds that HS’ motion (Dkt. # 31) to set aside the
Court Clerk’s entry of default should be granted.
IT IS THEREFORE ORDERED that HS Field Services, Inc.’s Motion to Set Aside
Default Judgment (Dkt. # 31) is granted, and the Clerk’s Entry of Default (Dkt. # 28) is vacated.
IT IS FURTHER ORDERED that HS’ answer or other responsive pleading is due no later
June 24, 2014.
DATED this 17th day of June, 2014.

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