Richardson et al v. The Church of God International

Filing 98

MEMORANDUM OPINION AND ORDER denying Plaintiffs' 35 MOTION for Entry of Default by Clerk Against Pat Armstrong; denying Plaintiffs' 36 MOTION for Entry of Default by Clerk Against David Harris and denying Plaintiffs' 47 RENEWED MOTION for Entry of Default by Clerk Against Pat Armstrong. Signed by Senior Judge David A. Faber on 8/20/2014. (cc: all counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

TERESA RICHARDSON, et al.,
Plaintiff,
v.

Civil Action No: 1:13-21821

THE CHURCH OF GOD INTERNATIONAL,
et al.
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are plaintiffs’ motions for entry
of default by the Clerk against defendants Pat Armstrong and
David Harris (Doc. Nos. 35 and 36).
were filed pro se.

Initially, these motions

After having retained counsel, plaintiffs

filed a renewed motion for entry of default against Pat
Armstrong (Doc. No. 47).

For the reasons expressed herein,

these motions are denied.
Rule 55(a) of the Federal Rules of Civil Procedure provides
for entry of default when a party “has failed to plead or
otherwise defend” an action.

Where these facts are apparent,

entry of default by the Clerk becomes a formal matter.

Orange

Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185 (3rd
Cir. 1942).

Rule 55(c) of the Federal Rule of Civil Procedure
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provides for relief from both defaults and default judgments.
It permits relief from defaults “for good cause shown,” but
requires that default judgments be set aside in accordance with
Rule 60(b) of the Federal Rules of Civil Procedure.

Fed. R.

Civ. P. 55(c).
This provision clearly differentiates between relief from
“entry of default” pursuant to Rule 55(a) of the Federal Rules
of Civil Procedure, and “entry of default judgment” pursuant to
Rule 55(b)(2) of the Federal Rules of Civil Procedure.

A motion

to set aside “entry of default” is subject to a less rigorous
standard than that applied to a motion to set aside “entry of
default judgment.”

Rasmussen v. Am. Nat. Red Cross, 155 F.R.D.

549, 550 (S.D.W. Va. 1994).

The disposition of both types of

motions, however, is a matter which lies largely within the
discretion of the trial court.

Consol. Masonry & Fireproofing,

Inc. v. Wagman Const. Corp., 383 F.2d 249, 251 (4th Cir. 1967).
With respect to David Harris, the Clerk never entered a
default, and rightfully so.

Harris was not properly served

until February 11, 2014, making his responsive pleading due on
March 4, 2014.

Doc. No. 39.

dismiss on February 18, 2014.

Harris timely filed a motion to
Doc. No. 43.

As such,

plaintiffs’ motion for entry of default against David Harris
(Doc. No. 36) is denied.

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With respect to Pat Armstrong, the Clerk likewise did not
enter a default.

A review of the record reveals that a default

should have been entered.

Armstrong was served on January 9,

2014, making her responsive pleading due on January 30, 2014.
Doc. No. 16.

Armstrong failed to meet that deadline, and

plaintiffs moved for entry of default on February 6, 2014.
No. 35.

Doc.

Armstrong responded to this motion, attempting to

explain her delay on February 7, 2014.

Doc. No. 37.

She filed

an answer to the amended complaint on February 11, 2014, close
to two weeks after the initial deadline.
The formality of entry of a default against Armstrong
should have been followed.

Nonetheless, the court finds that

even if the Clerk had entered a default against Armstrong under
Rule 55(a), there would be good cause to set aside its entry.
Rule 55(c) must be “liberally construed in order to provide
relief from the onerous consequences of defaults and default
judgments.”

Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969).

The cases applying the rule express a clear preference for
adjudication on the merits when possible.
tardiness did not prejudice plaintiffs.

Armstrong’s slight
And while the delay was

certainly neglectful, it was not grossly so.

See id. at 130

(“[T]he shortness of the delay involved, the absence of gross
neglect . . ., the lack of prejudice . . ., and the assertion of

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what may be a meritorious defense” established an abuse of
discretion to not set aside a default judgment).
For the reasons expressed above, the court DENIES
plaintiffs’ motion for entry of default by Clerk against Pat
Armstrong (Doc. No. 35), DENIES plaintiffs’ motion for entry of
default by Clerk against David Harris (Doc. No. 36), and DENIES
plaintiffs’ renewed motion for entry of default by Clerk against
Pat Armstrong (Doc. No. 47).
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this 20th day of August, 2014.
Enter:

David A. Faber
Senior United States District Judge

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