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Carter v. Muldoon

United States District Court, D. Nebraska

March 21, 2018

JOHN M. CARTER, and on behalf of other Similarly situated; Plaintiff,
v.
WILLIAM MULDOON, individually and in his official capacity as Director of NLETC; DAVE STOLZ, individually and in his official capacity as Counsel for the NLETC; and DOES 1-25 INCLUSIVE, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motion to Set Aside Default, ECF No. 33, filed by Defendant Nebraska Law Enforcement Training Center (NLETC). Also before the Court are the Objection to Magistrate Judge's Order directing the Clerk to enter default, ECF No. 35, filed by NLETC, and the Motion for Default Judgment, ECF No. 41, filed by Plaintiff John M. Carter. For the reasons stated below, the Objection to Magistrate Judge's Order will be overruled; the Motion to Set Aside Default will be granted; and the Motion for Default Judgment will be denied.

         BACKGROUND

         On August 28, 2017, Carter filed his Complaint, ECF No. 1, against Defendant William Muldoon, the Director of NLETC; Defendant Dave Stolz, “legal counsel and staff member” for NLETC; and Defendant NLETC. Carter is suing Muldoon and Stolz both in their individual and official capacities. The Complaint claims the Defendants took various courses of action against him based on his race in violation of a number of federal and Nebraska state laws.

         A Motion to Dismiss, ECF No. 26, for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) was filed on behalf of Muldoon and Stolz, but no such motion or responsive pleading was filed on behalf of NLETC. Accordingly, Carter moved for a clerk's entry of default pursuant to Fed.R.Civ.P. 55(a) and Magistrate Judge Nelson ordered the Clerk of Court to enter default against NLETC for “fail[ure] to plead or otherwise defend in the time allowed by Federal Rule of Civil Procedure 12(a).” ECF No. 31, Page ID 108. Default was entered pursuant to the order. ECF No. 32.

         NLETC objected to Magistrate Judge Nelson's Order, and moved the Court to Set Aside the Clerk's entry of default under Fed.R.Civ.P. 55(c). Carter has moved for a default judgment against NLETC.

         DISCUSSION

          I. Clerk's Entry of Default

          The Clerk properly entered default against NLETC. Federal Rule of Civil Procedure 55(a) states “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). A Rule 12(b)(6) motion was filed, but only on behalf of Muldoon and Stolz; no defensive motion or pleading was filed on NLETC's behalf. Def.'s Mot. Dismiss, ECF No. 26, Page ID 83 (stating “Defendants William Muldoon and Dave Stolz move to dismiss Plaintiff's Complaint[.]”). As such, the Clerk correctly entered default against NLETC, and the Objection to Magistrate Judge's Order will be overruled.

         NLETC argues default should not have been entered because Carter did not properly serve NLETC with process under Fed.R.Civ.P. 4(j)(2)(B). NLETC Br. Mot. Default, ECF No. 29, Page ID 100. However, the proper way to challenge service of process is to assert a timely Rule 12(b)(5) motion to dismiss. NLETC was clearly named as a defendant in the Complaint, see ECF No. 31, yet no timely pleading or defensive motion was filed on its behalf. As such, the Clerk of Court correctly entered default under Rule 55(a) against NLETC.

         II. Motion to Set Aside Clerk's Entry of Default

         NLETC has, nevertheless, shown there is good cause to set aside the Clerk's entry of default against it.

         Federal Rule of Civil Procedure 55(c) provides “[t]he court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).” Fed.R.Civ.P. 55(c). “When examining whether good cause exists, the district court should weigh ‘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.'” Stephenson v. El-Batrawi, 524 F.3d 907, 912 (8th Cir. 2008) (quoting Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir. 1998)). The Court must also recognize that there is a “judicial preference for adjudication on the merits.” Johnson, 140 F.3d at 784 (quoting Oberstar v. F.D.I.C., 987 F.2d 494, 504 (8th Cir. 1993)).

         a. ...


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