US Commodity Futures Trading Commission v. Harrison

Filing 40

ORDER denying Plaintiff's Motion for Entry of Default against Defendant Robert Staley Harrison; granting 39 Motion for Leave to File Answer Instanter. The clerk is directed to docket Defendants Answer. Signed by Honorable G Ross Anderson, Jr on 3/5/2013.(gpre, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION
U.S. Commodity Futures Trading
Commission,

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)
)
Plaintiff,
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v.
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)
Robert Stanley Harrison,
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)
Defendant.
)
________________________________ )

C/A No.: 8:13-cv-00327-GRA

ORDER

This matter comes before the Court on Plaintiff U.S. Commodity Futures
Trading Commission’s (“Plaintiff”) application for entry of default against Defendant
Robert Stanley Harrison (“Defendant”) (ECF No. 38) and Defendant’s “Unopposed
Motion for Leave to File Answer Instanter and Response in Opposition to Motion for
Clerk’s Entry of Default” (ECF No. 39). For the reasons stated herein, the Court shall
DENY Plaintiff’s application for entry of default and GRANT Defendant’s Motion for
Leave to File Answer Instanter.
Procedural History
Defendant was served with the complaint on February 7, 2013. See ECF No.
18. Accordingly, under Rule 12 of the Federal Rules of Civil Procedure, he had until
February 28, 2013 to file his answer. On February 27, 2013, Defendant filed a pro se
Motion for Extension of Time to File an Answer, which the Court denied. ECF Nos.
23 & 24. Later that day, Defendant filed an Emergency Motion for Reconsideration
and moved pursuant to Local Rule 12.01, D.S.C. and Plaintiff’s consent for a sevenday extension of time to file an answer and also for an additional extension of time to

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April 8, 2013, which was opposed by Plaintiff. See ECF Nos. 28 & 32. The Court, in
its discretion, denied the Motion for Reconsideration on March 1, 2013 and kept the
deadline for Defendant to file his answer on February 28, 2013. Plaintiff requested an
entry of default by the clerk on March 4, 2013 after Defendant had failed to answer.
ECF No. 38. Defendant filed his present “Unopposed Motion for Leave to File
Answer Instanter and Response in Opposition to Motion for Clerk’s Entry of Default”
on the same day. ECF No. 39.
Discussion
Under Rule 55(a) of the Federal Rules of Civil Procedure, the clerk is directed
to enter a party’s default “[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend.” Fed.R.Civ.P. 55(a). The
clerk has not yet entered a default in this case. Nevertheless, it is within a district
court’s “sound discretion” in deciding whether to direct that entry of default be made
as to a party. Brown v. Weschler, 135 F.Supp. 622, 624 (D.D.C. 1955).
Generally, there is a preference that “defaults be avoided and that claims and
defenses be disposed of on their merits.” Colleton Preparatory Acad., Inc. v. Hoover
Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). The Court has the discretion to set
aside any entry of default upon a showing of “good cause.” Fed.R.Civ.P. 55(c). The
Fourth Circuit, in Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th
Cir.2006), stated:
When deciding whether to set aside an entry of default, 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 party, whether there is a history of
dilatory action, and the availability of sanctions less drastic.

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Payne, 439 F.3d at 204–05. Moreover, “delay in and of itself does not constitute
prejudice to the opposing party.” Colleton Preparatory Acad., Inc., 616 F.3d at 418.
In this case, Plaintiff fails to show prejudice that would merit an entry of
default. Defendant has delayed only four days in filing his answer, and this delay has
not caused any prejudice to Plaintiff. Thus, because of the preference that claims
and defenses be disposed of on their merits, the Court finds that an entry of default is
not warranted in this case.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Entry of Default
against Defendant Robert Stanley Harrison is DENIED.
IT IS FURTHER ORDERED that Defendant’s Unopposed Motion for Leave to
File Answer Instanter is GRANTED. The clerk is directed to docket Defendant’s
Answer.
IT IS SO ORDERED.

March 5 , 2013
Anderson, South Carolina

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