United States District Court, D. Nebraska
D. Thalken United States Magistrate Judge
matter is before the court on the Motion to Set Aside Entry
of Default and Quash Service (Filing No. 12) filed by the
defendant Danny’s Bar and Grill. The plaintiff did not
respond to the defendant’s motion.
plaintiff filed the instant action on January 15, 2016,
naming Danny’s Bar and Grill and Daniel J. Arcuri as
defendants. See Filing No. 1. The plaintiff sought summonses,
which were issued for both named defendants. See Filing No.
6. On March 24, 2016, the plaintiff filed a proof of service
indicating “Danny’s Bar and Grill” was
served by a constable serving Linda Lenard on behalf of
Danny’s Bar and Grill, on March 18, 2016. See Filing
No. 7. On April 20, 2016, the Clerk of Court entered default
against Danny’s Bar and Grill. See Filing No. 11.
April 22, 2016, Danny’s Bar and Grill filed the instant
motion seeking an order setting aside the entry of default
and quashing service. See Filing No. 12. This defendant
offers evidence Danny’s Bar and Grill is a trade name
registered with the State of Nebraska. See Filing No. 12 p.
4. This defendant argues Danny’s Bar and Grill is
merely a trade name, rather than a legal entity, and without
the capacity to be served process or sued. Id. at 2.
Further, this defendant argues Linda Lenard is without
authority to accept service on behalf of the corporation
using the trade name Danny’s Bar and Grill.
Id. Although the evidence shows Daniel J. Arcuri is
the president of the corporation using the trading name
Danny’s Bar and Grill, the plaintiff fails to show
service upon him.
entry of default may be set aside “for good cause
shown.” Fed.R.Civ.P. 55(c). Although a motion to set
aside an entry of default typically involves consideration of
the same factors as a motion to set aside default judgment
pursuant to Rule 60(b), relief from a mere default entry does
not require as strong of a showing as excuse from a default
judgment. Johnson v. Dayton Elec. Mfg. Co., 140 F.3d
781, 783 (8th Cir. 1998). There is a distinction because
“it is likely that a party who promptly attacks an
entry of default, rather than waiting for grant of a default
judgment, was guilty of an oversight and wishes to defend the
case on the merits.” Id. at 784. After all,
the judicial preference is to adjudicate claims on the
merits. Oberstar v. F.D.I.C., 987 F.2d 494, 504 (8th
in deciding issues of this kind, our court and others have
looked at whether the conduct of the defaulting party was
blameworthy or culpable, whether the defaulting party has a
meritorious defense, and whether the other party would be
prejudiced if the default were excused.”
Johnson, 140 F.3d at 783; see also Stephenson v.
El-Batrawi, 524 F.3d 907, 912 (8th Cir. 2008); C-B
Kenworth, Inc. v. General Motors Corp., 129 F.R.D. 13,
14-15 (D. Me. 1990) (holding “assertion of default to
be largely technical and further finds that Plaintiff will
not be substantially prejudiced by the filing of a late
answer”). Essentially, the court must determine whether
good cause exists to set aside default and allow the
defendant to proceed on the merits. See Fed.R.Civ.P. 6(b),
court finds good cause exists to set aside the entry of
default. Danny’s Bar and Grill shows it is not a legal
entity and the corporation using the Danny’s Bar and
Grill trade name was not properly served. Any delay caused by
the proper party’s failure to file a timely answer will
not affect the progression of this matter as another
defendant has not yet been served or filed an answer.
Additionally, Danny’s Bar and Grill promptly reacted to
the entry of default and diligently attempted to rectify of
the matter. It does not appear the defendant engaged in any
conduct to cause the delay, i.e., the delay was out of its
control, rather than a willful flaunting of the deadline. See
In re Jones Truck Lines, Inc., 63 F.3d 685, 687 (8th
Cir. 1995). The delay, here, was occasioned by the timing and
manner of service. Additionally, the plaintiff has yet to
show service has been timely attempted on the other named
defendant and president of the relevant corporation.
these circumstances, the plaintiff shall show cause why the
case should not be dismissed against the defendants pursuant
to Fed.R.Civ.P. 4(m) and NECivR 41.2. The plaintiff failed to
seek an extension of the deadline to complete service, which
expired on April 14, 2016, or provide an explanation for the
delay. See Fed.R.Civ.P. 4(m); NECivR 41.2 (“At any
time, a case not being prosecuted with reasonable diligence
may be dismissed for lack of prosecution.”). The
plaintiff must make a showing of good cause for the failure
of timely service or the action must be dismissed against the
defendant Daniel J. Arcuri. Upon consideration, IT IS
Motion to Set Aside Entry of Default and Quash Service
(Filing No. 12) is granted.
Clerk of Court shall modify the docket to show that the entry
of default is hereby set aside.
plaintiff has until the close of business on June 3, 2016, to
file with the Clerk of Court evidence of proper service for
Daniel J. Arcuri and show cause why this ...