Grasshopper Motorcycles, Ltd. v. Rivera, Tim

Filing 13

ORDER denying 7 Motion for Entry of Default. Signed by Magistrate Judge Stephen L. Crocker on 6/13/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

GRASSHOPPER MOTORCYCLES, LTD.,
ORDER
Plaintiff,
v.

14-cv-320-slc

TIM RIVERA d/b/a Better Built Backrests,
Defendant.

_____________________________________________________________________________________
In this civil action for monetary, declaratory and injunctive relief, plaintiff Grasshopper
Motorcycles, Ltd. has brought claims against defendant Tim Rivera d/b/a Better Built Backseats
for trade dress infringement and unfair competition under § 43(a) of the Lanham Act, 15 U.S.C.
§ 1125(a), W is. Stat. § 100.18 and W isconsin common law. Now before the court is plaintiff’s
motion for entry of default. See dkt. 7. Plaintiff’s motion will be denied for the reasons set forth
below.
An entry of default against a party is proper only “[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). In this case, the summons and complaint were served on defendant on May 7, 2014,
and defendant had until May 28, 2014 to file an answer. On May 29, defendant, acting pro se,
filed a letter with the court, denying the allegations in plaintiff’s complaint and stating that he
believes “no infringement laws compromised.” See dkt. 5. The next day, plaintiff moved for entry
of default on the ground that defendant had failed to file a timely answer or responsive pleading
and that defendant’s letter fails to comport with the general rules of pleadings and fails to state
a defense.
The Seventh Circuit Court of Appeals has held that default is a drastic measure that courts
should impose only “in extreme situations where less drastic measures have proven unavailing.”
Silva v. City of Madison, 69 F.3d 1368, 1377 (7th Cir. 1995). Additionally, there is a “well
established policy” in this circuit for “favoring a trial on the merits over a default judgment.” Sun

v. Board of Trustees of University of Illinois, 473 F.3d 799, 811-12 (7th Cir. 2007). Thus, a court
may enter a default judgment “only when a party wilfully disregards pending litigation.” Id.
Although defendant’s answer to plaintiff’s complaint was one day late and thus untimely, he has
responded and is not “wilfully disregard[ing]” the suit.
Even if I agree that defendant’s answer violates Rule 8, this simply would mean that
defendant would have to file an amended answer that complies with Rule 8. Cf. Powers v. Snyder,
484 F.3d 929, 933 (7th Cir. 2007) (court should give plaintiff leave to replead if allegations in
complaint are vague). Although defendant’s answer is technically deficient, I do find that he has
attempted to defend this case and it is well established that pro se pleadings are entitled to a
liberal construction, Haines v. Kerner, 404 U.S. 519, 521 (1972). Furthermore, plaintiff does not
identify any unfair prejudice that it suffered as a result of defendant’s terse response to the
complaint. Under these circumstances, it would not be just to grant default on the basis of this
procedural misstep by a pro se defendant.
At the preliminary pretrial conference, the court will explain to defendant what he needs
to do to file a proper answer and will allow him time to file an amendment. In the meantime,
however, plaintiff’s motion for entry of default is denied.

ORDER
IT IS ORDERED that plaintiff Grasshopper Motorcycles, Ltd.’s motion for entry of
default, dkt.7, is DENIED.

Entered this 12 th day of June, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge