United States District Court, D. Nebraska
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendants' motion to
set aside the entry of default (filing 18). The plaintiff
opposes the motion (filing 19), but the defendants'
motion will be granted.
procedural history of this case is not complex. The plaintiff
filed its complaint (filing 1) on April 27, 2018. Service of
process was (purportedly) effectuated on June 6, 2018. Filing
10; filing 11; filing 12. The defendants' answer or
answers were due on June 27, see Fed. R. Civ. P.
12(a)(1), but no answer was filed. On August 13, the
plaintiff moved for entry of default, and the clerk's
entry of default was entered the next day. Filing 14; filing
15. Notice of the clerk's entry of default was mailed to
the defendants August 14, and on September 14 the present
motion to set aside the entry of default was filed. Filing
Civ. P. 55(c) provides that the Court "may set aside an
entry of default for good cause. . . ." When examining
whether good cause exists, the Court weighs 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). And although the same factors are
typically relevant in deciding whether to set aside entries
of default and default judgments, relief from a default
judgment requires a stronger showing of excuse than relief
from a mere default order. Johnson v. Dayton Elec. Mfg.
Co., 140 F.3d 781, 783 (8th Cir. 1998).
the defendants' explanation for default is that they
weren't properly served, and didn't actually receive
notice of the suit until after the default was entered.
Filing 18 at 1. The plaintiff insists that service was
proper. Seefiling 19 at 3-4. But regardless of
whether service was technically sufficient, the
defendants' representations-and the plaintiff does not
substantively dispute them-belie any "contumacious or
intentional delay or disregard for deadlines and procedural
rules." See Johnson, 140 F.3d at 784. This is,
instead, the sort of "marginal failure" to meet
pleading or other deadlines for which relief is appropriate:
the evidence shows a "good faith, relatively brief
default in the filing of an initial pleading, caused by poor
communication" between the defendants and their
employees. See id.
plaintiff offers a dog's breakfast of arguments to the
contrary. First, the plaintiff asserts that the defendants
filed a two-page motion instead of filing a separate motion
and supporting brief. Filing 19 at 2; see NECivR
7.1(a)(1)(A). But this is exactly the sort of motion that
"raises no substantial issue of law" and for which
"relief is within the court's
discretion"-meaning no brief was required. See
NECivR 7.1(a)(1)(B). It doesn't serve anyone's
interests, particularly the Court's, to demand that
parties say more than necessary.
plaintiff also complains about the defendants' failure to
cite legal authority. Filing 19 at 2-3; see filing
18. But the defendants' argument is factual, not
legal-and the Court is capable of finding Rule 55(c) all by
itself. It is, in fact, the plaintiff's showing that is
arguably deficient-the Court is to consider whether the
plaintiff was prejudiced, see Stephenson,
524 F.3d at 912, and in this case there is no basis for
concluding that the plaintiff has been prejudiced in a
"concrete way," see id. at 915, given that
"prejudice may not be found from delay alone or from the
fact that the defaulting party will be permitted to defend on
the merits." Johnson, 140 F.3d at 785.
the plaintiff claims that the defendants' proposed answer
(filing 18 at 11) doesn't present a meritorious defense.
Filing 19 at 4-5. But the plaintiff is suing the defendants
for, allegedly, unlawfully displaying the broadcast of a
boxing match. See filing 1. The defendants deny
showing the fight. Filing 18 at 11. That would, if supported
by the evidence, be as about as meritorious as defenses get.
Default judgments are not favored by the law, and the entry
of default judgment should be a rare judicial act. See
Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir.
1993); U.S. on Behalf of & for Use of Time Equip.
Rental & Sales, Inc. v. Harre, 983 F.2d 128, 130
(8th Cir. 1993). The circumstances here do not warrant
default judgment, so the defendants' default will be set
1. The defendants' motion to set aside entry of default
(filing 18) is granted.
2. The Clerk's Entry of Default (filing 15) is set aside.
 The plaintiff suggests that
"[s]hould the [defendants' proposed] answer be
filed, it would be subject to a Motion to Strike under
Federal Rule of Civil Procedure 12(f)." Filing 19 at 5.
The plaintiff is not encouraged to file such a motion.
See Whitten v. City of Omaha, 199 F.Supp. 3d 1224,
1235 (D. Neb. 2016); Infogroup, Inc. v. DatabaseLLC, 95
F.Supp. 3d 1170, 1194 (D. ...