United States District Court, D. Nebraska
JOHN M. CARTER, and on behalf of other Similarly situated; Plaintiff,
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
Smith Camp Chief United States District Judge
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.
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.
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.
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
I. Clerk's Entry of Default
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.
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.
Motion to Set Aside Clerk's Entry of Default
has, nevertheless, shown there is good cause to set aside the
Clerk's entry of default against it.
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.