United States District Court, D. Nebraska
D. Thalken, United States Magistrate Judge.
matter is before the court on the named defendants’
motions to set aside default and for leave to file responsive
pleadings (Filing Nos. 26 and 28) and the plaintiff’s
motions for entry of default judgment (Filing Nos. 24 and
25). The defendants filed briefs (Filing Nos. 27 and 29)
corresponding with the motions to set aside.
plaintiff filed the instant action on January 25, 2016. See
Filing No. 1. The plaintiff sought summonses, which were
issued for both named defendants. See Filing No. 5. On March
16, 2016, the plaintiff filed a proof of service indicating
Coin Laundry had been served on March 7, 2016, through its
registered agent. See Filing No. 6. On March 23, 2016, an
attorney representing Coin Laundry entered an appearance
seeking an extension of time, until April 28, 2016, to file
an answer or otherwise respond to the plaintiff’s
complaint. See Filing No. 7. The court granted the motion.
See Filing No. 9. On March 24, 2016, Coin Laundry filed a
corporate disclosure statement, as required by Fed.R.Civ.P.
7.1, stating “‘Coin Laundry is a trade name but
is not a separate legal entity as referenced above.”
See Filing No. 10. On the same date, the plaintiff filed a
proof of service indicating Mayne Place, LLC was served on
March 21, 2016, through its registered agent. See Filing No.
11. On April 12, 2016, an attorney representing Mayne Place,
LLC filed a motion seeking an extension of time to answer
until May 12, 2016, which was granted, and a corporate
disclosure statement identifying the members of the limited
liability corporation. See Filing Nos. 13-15. The defendants
did not file answers or any other response to the complaint.
18, 2016, the plaintiff filed motions for clerk’s entry
of default based on the defendants’ failure to respond
to the complaint. See Filing Nos. 21 and 22.
On May 19, 2016, the Clerk of Court entered default.
See Filing No. 23. On June 7, 2016, the
plaintiff filed motions for default judgment.
See Filing Nos. 24 and 25.
9, 2016, the defendants filed their motions to set aside
default and for leave to file responsive pleadings. See
Filing Nos. 26 and 28. Counsel for the defendants state:
“Since this case was filed, the undersigned has
communicated with the counsel for the Plaintiff regarding the
issues presented in this case and possible resolution of the
same.” See Filing No. 26 - Motion p. 1. Additionally,
counsel has been unexpectedly out of the office with a
medical issue, ultimately requiring surgery. Id.
Further the defendants argue they have meritorious defenses,
which they describe. Id.; see also Filing No. 27 -
Brief. Finally, the defendants contend the plaintiff would
not suffer prejudice by relief from default. See Filing No.
26 - Motion p. 1.
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. The defendants show their counsel entered an
appearance in this case and initially sought extensions of
time to answer. Additionally, the defendants’ counsel
was in contact with the plaintiff’s counsel in attempt
to resolve the case. Unexpected medical issues delayed the
defendants’ answers. Nevertheless, the defendants
promptly reacted to the entry of default and diligently
attempted to rectify of the matter. It does not appear the
defendants engaged in any conduct to cause the delay, i.e.,
the delay was out of their control, rather than a willful
flaunting of the deadline. See In re Jones Truck Lines,
Inc., 63 F.3d 685, 687 (8th Cir. 1995). Any delay caused
by the defendants’ failure to file timely answers will
have little affect the progression of this matter. Upon
consideration, IT IS ORDERED:
defendants’ motions to set aside default and for leave
to file responsive pleadings (Filing Nos. 26 and 28) are
Clerk of Court shall modify the docket to show that the
entries of default are hereby set aside.
defendants shall have until June 29, 2016, to file answers or
otherwise respond to the ...