United States District Court, D. Nebraska
D. Thalken United States Magistrate Judge
matter is before the court on the defendant 3’s Lounge
& Package Inc.’s Motion to Set Aside Default Judgment
and Leave to File Responsive Pleading (Filing No. 14).
3’s Lounge & Package Inc. filed a brief (Filing No. 15)
in support of the motion. The court construes the moving
defendant’s motion as one to set aside the
clerk’s entry of default. On April 20, 2016, the Clerk
of Court ordered default against 3’s Lounge & Package
Inc. based on its failure to plead or otherwise defendant
this action. See Filing No. 9. The plaintiff did not
seek, nor did the court enter, judgment against this
plaintiff filed the complaint on January 23, 2016.
See Filing No. 1. On March 4, 2016, the plaintiff
sought summons only for the defendant 3’s Lounge and
Package Inc., which summons the Clerk of Court issued.
See Filing Nos. 5. The plaintiff filed proof of
service for the defendant 3’s Lounge and Package Inc.
on March 20, 2016. See Filing No. 6. On April 20,
2016, the Clerk of Court entered default as to the defendant
3’s Lounge and Package Inc. See Filing No. 9.
On May 16, 2016, the court entered an order requiring the
plaintiff to show cause why the case should not be dismissed
against all defendants for failure to prosecute. See
Filing No. 11. On May 31, 2016, 3’s Lounge & Package
Inc. filed the instant motion for relief from the entry of
default. See Filing No. 14. This defendant argues
the court should set aside the default because: 1) this
defendant is not blameworthy or culpable for failing to file
a response to the Complaint, 2) a meritorious defense exists,
and 3) the plaintiff would not be prejudiced by setting aside
the entry of default. See Filing No. 15 - Brief p.
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 Cir. 1993).
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 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), 55(c).
the circumstances, the court will construe 3’s Lounge &
Package Inc.’s motion as a motion to set aside entry of
default. The delay caused by this defendant’s failure
to file a timely answer will not affect the progression of
this matter as another defendant has not yet filed an answer
either. Additionally, this defendant promptly reacted to the
entry of default and diligently attempted to rectify of the
matter. Counsel for the defendant states the defendant only
recently retained counsel, in just over one month from
clerk’s entry of default. See Filing No. 15 -
Brief p. 1. This defendant argues the delay in obtaining
counsel does not amount to a willful flaunting of the
deadline. The court finds no prejudice to the plaintiff by
virtue of the untimely answer. The plaintiff failed to seek
default judgment be entered against this defendant or to
prove service of process on the other named defendant.
Finally, the moving defendant presents a defense, which may
prove meritorious. Accordingly, the court finds the matter
should be decided on the merits of the parties’
positions. Based on the facts before the court, good cause
exists to grant the motion to set aside the clerk’s
entry of default. Upon consideration, IT IS
defendant 3’s Lounge & Package Inc.’s Motion to
Set Aside Default Judgment and Leave to File Responsive
Pleading (Filing No. 14) is granted.
3’s Lounge & Package Inc. shall have until June 17,
2016, to file an answer or otherwise respond to the
plaintiff’s Complaint (Filing No. 1).
Clerk of Court shall modify the docket to show that the entry