29 ALR Fed 7

29 A.L.R. Fed. 7 Page 129 A.L.R. Fed. 7 (Originally published in 1976)

American Law Reports ALR Federal

The ALR databases are made current by the weekly addition of relevant new cases.

What constitutes "good cause" allowing federal court to relieve party of his default under Rule 55(c) of Fed-eral Rules of Civil Procedure

William H. Danne, Jr., J.D.

TABLE OF CONTENTS

Article OutlineIndexTable of Cases, Laws, and RulesResearch References

ARTICLE OUTLINE

I Prefatory matters§ 1[a] Introduction—Scope§ 1[b] Introduction—Related matters§ 1[c] Introduction—Text of relevant federal rules§ 2[a] Summary and comment—Generally§ 2[b] Summary and comment—Practice pointers

II General considerations§ 3 Relationship of Rule 55(c) to Rule 60(b)§ 4 Discretion of court under Rule 55(c)§ 5[a] Interpretation of "good cause" concept as it relates to sufficiency of excuse for inaction

—Generally§ 5[b] Interpretation of "good cause" concept as it relates to sufficiency of excuse for inaction

—Relaxation of standards where inaction is attributable to attorney rather than party personally§ 6[a] Other considerations affecting relief under Rule 55(c)—Existence of meritorious de-

fense§ 6[b] Other considerations affecting relief under Rule 55(c)—Prejudice to opposing party§ 6[c] Other considerations affecting relief under Rule 55(c)—Timeliness of motion§ 6[d] Other considerations affecting relief under Rule 55(c)—Amount involved in suit§ 6[e] Other considerations affecting relief under Rule 55(c)—Bad faith of defendant subse-

quent to entry of defaultIII Sufficiency of particular reasons for inaction

A Inaction of party§ 7[a] Doubt or confusion as to court's jurisdiction—Good cause established§ 7[b] Doubt or confusion as to court's jurisdiction—Good cause not established§ 8[a] Failure to receive notice—Of action itself§ 8[b] Failure to receive notice—Of taking of default§ 8[c] Failure to receive notice—Other notice§ 9 Misunderstanding of complaint or other suit document§ 10[a] Ignorance of requirements relative to answer—Need for answer§ 10[b] Ignorance of requirements relative to answer—Need for filing of answer

with court§ 11 Reliance on erroneous advice not to respond

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.


§ 12 Absence from jurisdiction following service of process§ 13[a] Other specified reasons—Good cause established§ 13[b] Other specified reasons—Good cause not established§ 14[a] Unexplained inaction—Good cause established§ 14[b] Unexplained inaction—Good cause not established

B Inaction of party's counsel§ 15[a] Mistake as to necessity of answer—Good cause established§ 15[b] Mistake as to necessity of answer—Good cause not established§ 16[a] Mistake as to time for answer—Misconception as to date of service§ 16[b] Mistake as to time for answer—Reliance upon erroneous answer period

specified in summons§ 16[c] Mistake as to time for answer—Belief that time had been extended by con-

sent of opposing counsel; good cause established§ 16[d] Mistake as to time for answer—Good cause not established§ 16[e] Mistake as to time for answer—Belief that time had been extended by opera-

tion of procedural rule§ 17[a] Failure to receive correct information regarding status of case—From files of

court clerk§ 17[b] Failure to receive correct information regarding status of case—From oppos-

ing counsel§ 18 Neglect of member of clerical staff§ 19 Reliance upon settlement negotiations§ 20 Other specified reasons§ 21[a] Unexplained inaction—Good cause established§ 21[b] Unexplained inaction—Good cause not established

C Inaction of party's insurer§ 22 Error or neglect in forwarding of suit papers to proper office§ 23 Mistaken belief that suit papers related to another pending case§ 24 Misplacement of suit papers through filing error

Research ReferencesINDEX

Absence from jurisdiction following service of process § 12Action, failure to receive notice of § 8[a]Actual notice, failure to receive § 8Advice not to respond, reliance on erroneous advice § 11Allegations or conclusory statements as to existence of meritorious defense, sufficiency of § 6[a]Amount involved in suit § 6[d]Another pending case, mistaken belief by party's insurer that suit papers related to § 23Answer, ignorance of or mistake as to requirements relative to §§10,15,16Antitrust Act, suit under §§13[a],16Appearance, mistake as to necessity of answer after entry of § 15[a]Attorney rather than party personally, relaxation of standards where inaction is attributable to § 5[b]Attorney's inaction §§15-21Auctioneer, action against § 13[b]Automobile accident case §§7[a],21[a],23,24Bankruptcy adjudication § 8[b]Bankruptcy trustee, action by § 16[d]Breach of contract action § 16[e]Change of address, failure to receive suit papers due to § 8[a]



Christmas holidays, absence from jurisdiction during § 12Civil Rights Act, suit under §§9,11,13[a],16[c],17[b],20Clayton Antitrust Act, suit under § 16[c]Clerical staff, neglect of member of § 18Clerk of court, failure to receive correct information regarding status of case from files of § 17[a]"Closed" file, mistakenly placing summons and complaint in § 24Complaint or other suit document, misunderstanding of § 9Computation of time for answer, mistake in § 16Conclusory statement of existence of meritorious defense, sufficiency of § 6[a]Consent of opposing counsel, belief as to extension of time for answer based on §16[c],16[d]Conversion action § 13[b]Copyright infringement action § 22Correct information regarding status of case, failure to receive § 17Counterclaim, amount involved in § 6[d]Court clerk, failure to receive correct information regarding status of case from files of § 17[a]"Crank" letter, misunderstanding written complaint as § 9Criminal conversation, action for § 19Culpable inadvertence § 5[a]Damages involved in suit, amount of § 6[d]Date of service of process, misconception as to § 16[a]Demand for judgment, effect of amount claimed in § 6[d]Deposition hearing, failure to appear at § 15[b]Derivative action by stockholders § 11Detective agency, suit against § 13[a]Discovery order, party's disobedience of § 2[b]Discretion of court under Rule 55(c) § 4Erroneous advice not to respond, reliance on § 11"Excusable neglect" § 5[a]Extension of time for answer by consent of opposing counsel, belief as to §16[c],16[d]Extension of time for answer by operation of procedural rule, belief as to § 16[e]Extraterritorial service of process § 7[b]Failure to receive correct information regarding status of case § 17Failure to receive notice § 8FBI agents, action for return of money taken by § 14[b]Files of court clerk, failure to receive correct information regarding status of case from § 17[a]Filing error, misplacement of suit papers by party's insurer due to § 24Filing of answer with court, ignorance of need for § 10[b]Fire, action for property damage sustained in §§13[b],16[a]Flood damage to home as cause for default § 8[a]Forfeiture of property for violation of tax law § 8[a]Forwarding of suit papers to proper office by party's insurer, error or neglect in § 22Gambling business property, forfeiture of § 8[a]Garnishee, default against § 14[b]General considerations §§3-6"Gross neglect", default caused by § 5[a]Guaranty of corporate note, suit on §§8[a],9Handwritten complaint, misunderstanding of § 9Illness in family as cause for default § 8[a]Insurer of party, inaction of §§22-24Intentional default § 5[a]"Internal omission" of insurer § 22Interrogatories, refusal to answer § 14[b]


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR55&FindType=L&ReferencePositionType=T&ReferencePosition=SP_4b24000003ba5


Introduction § 1Jones Act proceeding §§17[a],21[b]Judicial discretion under Rule 55(c) § 4Jurisdiction of court, doubt or confusion as to § 7Lack of jurisdiction by court, doubt or confusion as to § 7Legal advice not to respond, reliance on § 11Letter, mistaken belief as to mailing of § 20Liberal interpretation of Rule §§5[b],14[a]"Likewise", construction of term in Rule § 3Limitation of time for motion § 6[c]Long-arm statute, jurisdiction based on § 7[a]Longshoreman's action §§13[a],23Merger of corporations, suit to invalidate § 16[e]Meritorious defense, existence of § 6[a]Miscellaneous specified reasons §§13,20Misplacement of suit papers by party's insurer through filing error § 24Municipal court action, belief as to lack of jurisdiction due to pendency of § 7[a]Need for answer, ignorance of requirements as to § 10[a]Nondefaulting party, prejudice to § 6[b]Notice, failure to receive § 8Opposing counsel, failure to receive correct information regarding status of case from § 17[b]Other considerations affecting relief under Rule 55(c) § 6Other pending case, mistaken belief by party's insurer that suit papers related to § 23Overtime pay, action for § 20Particular reasons for inaction, sufficiency of §§7-24Party's inaction, sufficiency of particular reasons for §§7-14Personal injury action §§10[a],14-16,18,21-24Pleadings, misunderstanding of § 9Practice pointers § 2[b]Prefatory matters §§1,2Prejudice to opposing party § 6[b]Prison inmate, default judgment against § 14[b]Promptness in making motion § 6[c]Pro se complaint, misunderstanding of § 9Publication, failure to receive notice of service by § 8[a]"Reasonable time" for motion § 6[c]Registered agent for corporation, service on § 17[b]Related matters § 1[b]Relationship of Rule 55(c) to Rule 60(b) § 3Relaxation of standards where inaction is attributable to attorney rather than party personally § 5[b]Removal of proceedings §§7[a],15[b]Scope of annotation § 1[a]Secretary in attorney's office, neglect of § 18Securities laws, action involving violation of §§13[a],21[a]Service of process absence from jurisdiction following § 12misconception as to date of § 16[a]

Settlement negotiations, reliance upon § 19Sherman Act, suit under §§13[a],16Shipowner, action against § 13[a]Showing as to existence of meritorious defense, necessity of § 6[a]


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR60&FindType=L&ReferencePositionType=T&ReferencePosition=SP_a83b000018c76





Status of case, failure to receive correct information regarding § 17Stipulation for extension of time to plead § 2[b]Stockbroker, suit against §§8[a],13[a]Stockholders' derivative action § 11Substituted service of process § 7[a]Sufficiency of excuse for inaction, interpretation of "good cause" concept as it relates to § 5Summary and comment § 2Summons, reliance upon erroneous answer period specified in § 16[b]Switchboard operator, complaint and summons delivered to § 7[b]Taking of default, failure to receive notice of § 8[b]Tax law violation § 8[a]Technical point of law, counsel's misinterpretation on § 6[b]Text of relevant Federal Rules § 1[c]Third-party plaintiff § 2[b]Time for answer, mistake as to § 16Timeliness of motion § 6[c]Unexplained inaction §§14,21United States, action against § 16[b]Unpaid wages and commissions, action for § 15[b]Wife of defendant, service of summons and complaint on § 8[a]"Willful default" § 5[a]Wrongful death action § 21[a]

Table of Cases, Laws, and Rules

United States

11 U.S.C.A. Bankr. Rule 7055. See 6[a], 6[b]

15 U.S.C.A. §§ 77e(a) and 77. See 21[a]

21 U.S.C.A. § 881(a)(7). See 13[a]

26 U.S.C.A. §§ 4411, 4412. See 8[a]

26 U.S.C.A. § 7422(f)(1) and (2. See 13[a]

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c). See 7[a]

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c). See 4, 5[a], 6[a], 6[b], 6[c], 6[e], 8[a], 8[b], 13[a], 14[b], 20

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(a, c). See 8[a]

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b). See 8[a]

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b)(1). See 8[a]

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b)(4). See 4


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR60&FindType=L&ReferencePositionType=T&ReferencePosition=SP_6ad60000aeea7

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR60&FindType=L&ReferencePositionType=T&ReferencePosition=SP_3fed000053a85


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR55&FindType=L



http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=26USCAS7422&FindType=L&ReferencePositionType=T&ReferencePosition=SP_9daf00009de57

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=26USCAS4412&FindType=L


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=21USCAS881&FindType=L&ReferencePositionType=T&ReferencePosition=SP_36f10000408d4


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=15USCAS77E&FindType=L&ReferencePositionType=T&ReferencePosition=SP_8b3b0000958a4


28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b)(6). See 14[b], 21[a]

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(e)(4). See 7[a]

28 U.S.C.A. Fed. Rules Civ. Proc. Rules 55(c), 60(b). See 13[a]

29 U.S.C.A. §§ 1001 et seq.. See 6[a]

29 U.S.C.A. §§ 1801 et seq.. See 6[a]

42 U.S.C.A. § 1983. See 6[a], 8[a], 9, 13[a], 20

42 U.S.C.A. §§ 3601 et seq.. See 6[a]

First Circuit

Bedard v. Consolidated Mut. Ins. Co., 313 F. Supp. 1020 (D.P.R. 1970) — 2[b], 5[a], 6[c], 14[a]

Brand Scaffold Builders, Inc. v. Puerto Rico Elec. Power Authority, 364 F. Supp. 2d 50 (D.P.R. 2005) — 3, 14[b]

Brown v. Boats Unlimited, Inc., 128 F.R.D. 23 (D.R.I. 1989) — 13[a]

Carignan v. U.S., 48 F.R.D. 323 (D. Mass. 1969) — 5[a], 6[a], 14[b]

Coon v. Grenier, 867 F.2d 73, 13 Fed. R. Serv. 3d 96 (1st Cir. 1989) — 6[a], 6[b]

Debreceni v. Route USA Real Estate, Inc., 773 F. Supp. 498 (D. Mass. 1990) — 20

Edes v. Fredson, 344 F. Supp. 2d 209 (D. Me. 2004) — 4

Eisler v. Stritzler, 45 F.R.D. 27, 12 Fed. R. Serv. 2d 1161 (D.P.R. 1968) — 3, 4, 6[a], 6[b], 6[c], 6[d], 12

Federal Deposit Ins. Corp. v. Francisco Inv. Corp., 873 F.2d 474, 13 Fed. R. Serv. 3d 984 (1st Cir. 1989) — 6[a]

General Contracting & Trading Co., LLC v. Interpole, Inc., 899 F.2d 109, 16 Fed. R. Serv. 3d 174 (1st Cir. 1990) — 14[b]

Goodwin v. Roper Industries, Inc., 113 F.R.D. 53 (D. Me. 1986) — 22

Grover v. Commercial Ins. Co. of Newark, N.J., 108 F.R.D. 366 (D. Me. 1985) — 6[a], 6[c], 6[d]

Highdata Software v. Kothandan, 160 F. Supp. 2d 167, 49 Fed. R. Serv. 3d 84, 2001 DNH 66 (D.N.H. 2001) — 6[c]

Kingvision Pay-Per-View Ltd. v. Niles, 150 F. Supp. 2d 188 (D. Me. 2001) — 6[a], 6[b], 6[e]


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0004637&FindType=Y&SerialNum=2001653171






















http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR60&FindType=L&ReferencePositionType=T&ReferencePosition=SP_7fdd00001ca15

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR60&FindType=L&ReferencePositionType=T&ReferencePosition=SP_61d20000b6d76


KPS & Associates, Inc. v. Designs By FMC, Inc., 318 F.3d 1, 54 Fed. R. Serv. 3d 839 (1st Cir. 2003) — 4, 5[a], 6[a], 6[b]

Kryzak v. Dresser Industries, 118 F.R.D. 12 (D. Me. 1987) — 6[a], 6[b], 6[d], 13[a]

Leshore v. County of Worcester, 945 F.2d 471, 21 Fed. R. Serv. 3d 454 (1st Cir. 1991) — 20

Lucerne Farms v. Baling Technologies, Inc., 208 F.R.D. 463, 53 Fed. R. Serv. 3d 559 (D. Me. 2002) — 13[a]

Mach v. Florida Casino Cruise, Inc., 187 F.R.D. 15, 44 Fed. R. Serv. 3d 1217 (D. Mass. 1999) — 6[d]

Maine Nat. Bank v. F/V Cecily B. (O.N. 677261), 116 F.R.D. 66 (D. Me. 1987) — 5[a], 6[a], 6[d]

Marcantonio v. Primorsk Shipping Corp., 206 F. Supp. 2d 54 (D. Mass. 2002) — 7[a]

McGarey v. York County, 233 F.R.D. 220, 64 Fed. R. Serv. 3d 137 (D. Me. 2006) — 6[e]

Phillips v. Weiner, 103 F.R.D. 177, 40 Fed. R. Serv. 2d 689 (D. Me. 1984) — 5[a], 6[d]

Rodriguez Fernandez v. Urban Transit Solutions, Inc., 230 F.R.D. 273 (D.P.R. 2005) — 5[a], 6[a], 6[b], 6[c], 6[d]

Smith & Wesson, Div. of Bangor Punta Corp. v. U.S., 782 F.2d 1074, 19 Fed. R. Evid. Serv. 1500 (1st Cir. 1986) — 6[a]

Sonus Corp. v. Matsushita Elec. Industrial Co., Ltd., 61 F.R.D. 644, 18 Fed. R. Serv. 2d 354 (D. Mass. 1974) — 3, 6[a], 8[b]

Taylor v. Boston and Taunton Transp. Co., 720 F.2d 731 (1st Cir. 1983) — 13[b]

U.S. v. One Parcel of Real Property With Bldgs., Appurtenances, and Improvements, Known as 147 Div. Street, Located in City of Woonsocket, R.I., 682 F. Supp. 694 (D.R.I. 1988) — 6[a], 9, 13[a]

U.S. v. Ponte, 246 F. Supp. 2d 74 (D. Me. 2003) — 6[b]

U.S. v. Proceeds of Sale of 3,888 Pounds Atlantic Sea Scallops, 857 F.2d 46, 12 Fed. R. Serv. 3d 57 (1st Cir. 1988) — 11

U.S. v. $23,000 in U.S. Currency, 356 F.3d 157, 57 Fed. R. Serv. 3d 1029 (1st Cir. 2004) — 5[a], 6[a]

Vega Matta v. Alvarez de Choudens, 440 F. Supp. 246, 25 Fed. R. Serv. 2d 503 (D.P.R. 1977) — 6[a], 20

Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 58 Fed. R. Serv. 3d 1092 (1st Cir. 2004) — 6[b]

Wayland v. District Court, Biddeford, 104 F.R.D. 91 (D. Me. 1985) — 6[a], 6[b], 9



























Wayne Rosa Const., Inc. v. Hugo Key & Son, Inc., 153 F.R.D. 481 (D. Me. 1994) — 13[b]

Second Circuit

In re Interco Systems, Inc., 185 B.R. 447, 32 Fed. R. Serv. 3d 1073 (Bankr. W.D. N.Y. 1995) — 6[a]

In re Rymsbran Continental Corp., 177 B.R. 163 (E.D. N.Y. 1995) — 14[a]

Aberson v. Glassman, 70 F.R.D. 683, 21 Fed. R. Serv. 2d 794 (S.D. N.Y. 1976) — 6[a], 21[b]

Albert Levine Associates, Inc. v. Kershner, 45 F.R.D. 450 (S.D. N.Y. 1968) — 5[a], 6[a], 6[b], 16[e]

Argus Research Group, Inc. v. Argus Securities, Inc., 204 F. Supp. 2d 529, 53 Fed. R. Serv. 3d 39 (E.D. N.Y. 2002) — 3, 5[a], 6[a], 6[b]

B.N.P. Canada Inc. v. Horvath & Assoc. Studios, Ltd., 96 F.R.D. 225, 38 Fed. R. Serv. 2d 729 (S.D. N.Y. 1982) — 6[a]

Brock v. Unique Racquetball and Health Clubs, Inc., 786 F.2d 61, 4 Fed. R. Serv. 3d 482 (2d Cir. 1986) — 4, 21[b]

Broder v. Charles Pfizer & Co., 54 F.R.D. 583, 15 Fed. R. Serv. 2d 856 (S.D. N.Y. 1971) — 3, 6[c], 13[a]

Brown v. DeFilippis, 695 F. Supp. 1528 (S.D. N.Y. 1988) — 4, 5[a], 6[a], 6[b]

Canfield v. VSH Restaurant Corp., 162 F.R.D. 431 (N.D. N.Y. 1995) — 5[a], 9

Cyril v. Neighborhood Partnership II Housing Development Fund, Inc., 124 Fed. Appx. 26 (2d Cir. 2005) — 8[a], 20

DIRECTV, Inc. v. Hamilton, 215 F.R.D. 460 (S.D. N.Y. 2003) — 14[a]

Fariello v. Rodriguez, 148 F.R.D. 670 (E.D. N.Y. 1993) — 6[a], 6[b], 13[a], 20

Fashion Shop LLC v. Virtual Sales Group Corp., 525 F. Supp. 2d 436 (S.D. N.Y. 2007) — 6[a]

Ferraro v. Arthur M. Rosenberg Co. of New Haven, Conn., 156 F.2d 212 (C.C.A. 2d Cir. 1946) — 2[b]

Fine Shoe Co. v. Buckray, Inc., 131 F.R.D. 58 (S.D. N.Y. 1990) — 6[a], 6[b], 20

Grant v. City of New York, 145 F.R.D. 325 (S.D. N.Y. 1992) — 6[a], 6[b]

Harriman v. I.R.S., 233 F. Supp. 2d 451 (E.D. N.Y. 2002) — 6[a], 6[b]

Hawthorne v. Citicorp Data Systems, Inc., 219 F.R.D. 47 (E.D. N.Y. 2003) — 4

























Hernandez v. La Cazuela de Mari Restaurant, Inc., 538 F. Supp. 2d 528 (E.D. N.Y. 2007) — 6[a]

Hodges v. Jones, 873 F. Supp. 737 (N.D. N.Y. 1995) — 20

ILGWU Nat. Retirement Fund v. Empire State Mills Corp., 696 F. Supp. 885 (S.D. N.Y. 1988) — 6[a]

Kearney v. New York State Legislature, 103 F.R.D. 625, 40 Fed. R. Serv. 2d 1000 (E.D. N.Y. 1984) — 8[a]

LaManna v. Concord Mortg. Corp., 244 F.R.D. 148 (N.D. N.Y. 2007) — 6[b]

Lichtenstein v. Jewelart, Inc., 95 F.R.D. 511, 35 Fed. R. Serv. 2d 951 (E.D. N.Y. 1982) — 7[a]

Lowey Dannenberg Cohen PC v. Dugan, 249 F.R.D. 67 (S.D. N.Y. 2008) — 21[b]

Lutwin v. City of New York, 106 F.R.D. 502, 2 Fed. R. Serv. 3d 265 (S.D. N.Y. 1985) — 3, 6[a], 6[b], 20

Marziliano v. Heckler, 728 F.2d 151 (2d Cir. 1984) — 5[a], 6[a], 6[b], 16[d]

Men's Sportswear, Inc., In re, 834 F.2d 1134 (2d Cir. 1987) — 6[a], 6[b]

Morris v. Charnin, 85 F.R.D. 689 (S.D. N.Y. 1980) — 6[a], 6[b], 6[c], 13[a]

Nationwide Mutual Fire Ins. Co. v. Rankin, 199 F.R.D. 498 (W.D. N.Y. 2001) — 6[a], 6[b]

Niepoth v. Montgomery County Dist. Attorney's Office, 177 F.R.D. 111 (N.D. N.Y. 1998) — 5[a], 6[a], 6[b], 13[a]

Oliner v. McBride's Industries, Inc., 102 F.R.D. 561, 39 Fed. R. Serv. 2d 1280 (S.D. N.Y. 1984) — 6[b]

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48 (E.D. N.Y. 2008) — 4

Robinson v. Bantam Books, Inc., 49 F.R.D. 139, 14 Fed. R. Serv. 2d 284 (S.D. N.Y. 1970) — 5[a], 6[a], 22

Rogers v. Arzt, 1 F.R.D. 581 (S.D. N.Y. 1941) — 20

Roth, In reRoth, 172 B.R. 777, 31 Fed. R. Serv. 3d 280 (Bankr. S.D. N.Y. 1994) — 10[a]

Securities and Exchange Commission v. Vogel, 49 F.R.D. 297, 13 Fed. R. Serv. 2d 1222 (S.D. N.Y. 1969) — 3, 4, 5[a], 6[a], 6[b], 21[a]

Sprague & Rhodes Commodity Corp. v. M/V Procer Fulgencio Yegros, 617 F. Supp. 911 (S.D. N.Y. 1985) — 20

Springs v. Clement, 202 F.R.D. 387 (E.D. N.Y. 2001) — 5[a], 6[a]

Tesillo v. Emergency Physician Associates, Inc., 230 F.R.D. 287 (W.D. N.Y. 2005) — 5[a], 6[a], 6[b]

























Todtman, Nachamie, Spizz & Johns, P.C. v. Ashraf, 241 F.R.D. 451 (S.D. N.Y. 2007) — 13[b]

Traguth v. Zuck, 710 F.2d 90, 36 Fed. R. Serv. 2d 1189 (2d Cir. 1983) — 4

United Parcel Service of America v. Net, Inc., 185 F. Supp. 2d 274, 51 Fed. R. Serv. 3d 1475 (E.D. N.Y. 2002) — 4

U.S. v. Thornton, 113 F.R.D. 499 (D. Conn. 1986) — 6[a], 6[b]

U.S. v. $3,976.62 in Currency, 37 F.R.D. 564 (S.D. N.Y. 1965) — 8[a]

U.S. v. Tomasello, 569 F. Supp. 1 (W.D. N.Y. 1983) — 6[a]

U.S. S.E.C. v. Wang, 699 F. Supp. 44 (S.D. N.Y. 1988) — 6[a]

Vermont Mobile Home Owners' Ass'n, Inc. v. Lapierre, 94 F. Supp. 2d 519 (D. Vt. 2000) — 20

Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 109 F.R.D. 692, 4 Fed. R. Serv. 3d 999 (S.D. N.Y. 1986) — 6[a], 6[b]

Weisel v. Pischel, 197 F.R.D. 231 (E.D. N.Y. 2000) — 21[a]

Westmark Development Corp. v. Century Sur. Co., 199 F.R.D. 491, 49 Fed. R. Serv. 3d 1385 (W.D. N.Y. 2001) — 6[a], 6[b]

Williams v. Ward, 416 F. Supp. 1123 (S.D. N.Y. 1976) — 6[a]

Third Circuit

Accu-Weather, Inc. v. Reuters Ltd., 779 F. Supp. 801 (M.D. Pa. 1991) — 6[a], 6[b]

Admiral Home Appliances, a Div. of Magic Chef, Inc. v. Tenavision, Inc., 585 F. Supp. 14 (D.N.J. 1982) — 6[a]

Alopari v. O'Leary, 154 F. Supp. 78 (E.D. Pa. 1957) — 4, 5[a], 6[a], 6[b], 21[a]

Arthur Treacher's Franchise Litigation, In re, 92 F.R.D. 398 (E.D. Pa. 1981) — 3

Becker v. Smith, 554 F. Supp. 767, 37 Fed. R. Serv. 2d 791 (M.D. Pa. 1982) — 13[a], 20

Bell Tel. Laboratories, Inc. v. Hughes Aircraft Co., 73 F.R.D. 16 (D. Del. 1976) — 3, 6[a], 6[b], 13[b]

Bieros v. Nicola, 851 F. Supp. 681, 29 Fed. R. Serv. 3d 1169 (E.D. Pa. 1994) — 22

Canup v. Mississippi Val. Barge Line Co., 31 F.R.D. 282, 6 Fed. R. Serv. 2d 1034 (W.D. Pa. 1962) — 5[b], 21[b]


























Chapman v. Henry A. Dreer, Inc., 14 F.R.D. 218 (E.D. Pa. 1953) — 2[b]

Choice Hotels Intern., Inc. v. Pennave Associates, Inc., 192 F.R.D. 171 (E.D. Pa. 2000) — 13[a]

Collex, Inc. v. Walsh, 74 F.R.D. 443 (E.D. Pa. 1977) — 4

Dascenzo v. Blain, 19 Fed. R. Serv. 2d 384 (E.D. Pa. 1974) — 3, 17[b]

Display Equation, Inc. v. D.C. Industries, Inc., 134 F.R.D. 124 (W.D. Pa. 1990) — 6[a], 6[b], 13[a]

Dizzley v. Friends Rehabilitation Program, Inc., 202 F.R.D. 146 (E.D. Pa. 2001) — 4, 6[a], 6[b]

Elias v. Pitucci, 13 F.R.D. 500 (E.D. Pa. 1952) — 6[c], 21[b]

Elias v. Pitucci, 13 F.R.D. 13 (E.D. Pa. 1952) — 6[a], 6[c], 15[a], 21[b]

Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 9 Fed. R. Serv. 3d 1206 (3d Cir. 1987) — 6[a], 6[b]

Farnese v. Bagnasco, 687 F.2d 761, 34 Fed. R. Serv. 2d 1232 (3d Cir. 1982) — 5[a], 6[e]

General Tire & Rubber Co. v. Olympic Gardens, Inc., 85 F.R.D. 66, 28 Fed. R. Serv. 2d 1313 (E.D. Pa. 1979) — 4, 6[b]

Gillespie v. Hysmith, 44 F.R.D. 476 (W.D. Pa. 1968) — 17[a]

Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 35 Fed. R. Serv. 2d 1117 (3d Cir. 1983) — 6[a], 20

Hamilton v. Edell, 67 F.R.D. 18, 20 Fed. R. Serv. 2d 1119 (E.D. Pa. 1975) — 4, 5[a], 6[a], 6[b], 17[b], 20

Hritz v. Woma Corp., 732 F.2d 1178, 38 Fed. R. Serv. 2d 1631 (3d Cir. 1984) — 6[b]

Hutton v. Fisher, 359 F.2d 913 (3d Cir. 1966) — 6[a], 6[d], 16[c], 17[b]

Jackson v. Delaware County, 211 F.R.D. 282 (E.D. Pa. 2002) — 5[a], 6[a], 6[b]

Kulakowich v. A/S Borgestad, 36 F.R.D. 185, 9 Fed. R. Serv. 2d 55C.1, Case 1 (E.D. Pa. 1964) — 5[a], 6[a], 6[b], 13[a]

Lasky v. Continental Products Corp., 97 F.R.D. 716, 36 Fed. R. Serv. 2d 1134 (E.D. Pa. 1983) — 5[a], 15[a]

Mannke v. Benjamin Moore & Co., 375 F.2d 281, 10 Fed. R. Serv. 2d 1328 (3d Cir. 1967) — 3, 6[b], 14[a]

Medunic v. Lederer, 64 F.R.D. 403 (E.D. Pa. 1974) — 3, 5[a], 23

























Mettle v. First Union Nat. Bank, 279 F. Supp. 2d 598, 56 Fed. R. Serv. 3d 834 (D.N.J. 2003) — 6[a], 6[b]

Meyer v. Lavelle, 64 F.R.D. 533, 29 A.L.R. Fed. 1 (E.D. Pa. 1974) — 4, 6[a], 6[c], 13[a]

Momah v. Albert Einstein Medical Center, 161 F.R.D. 304 (E.D. Pa. 1995) — 14[a]

Nicholson v. Allied Chemical Corp., 200 F. Supp. 206, 5 Fed. R. Serv. 2d 971 (E.D. Pa. 1961) — 3, 5[a], 6[a], 6[c], 18

Nunn v. Reina, 21 F.R.D. 573 (E.D. Pa. 1958) — 3, 5[a], 6[a], 6[b], 6[c], 15[a]

Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185 (C.C.A. 3d Cir. 1942) — 2[b], 16[c]

Paramount Packaging Corp. v. H. B. Fuller Co. of N. J., 190 F. Supp. 178 (E.D. Pa. 1960) — 7[b]

Phillips v. Flynn, 61 F.R.D. 574 (E.D. Pa. 1974) — 6[a], 6[c], 7[a]

Quaker Valley School Dist. v. Employers Mut. Liability Ins. Co. of Wisconsin, 96 F.R.D. 423, 35 Fed. R. Serv. 2d 1424 (W.D. Pa. 1983) — 6[b]

Schartner v. Copeland, 59 F.R.D. 653, 17 Fed. R. Serv. 2d 916 (M.D. Pa. 1973) — 3, 4, 5[a], 6[a], 6[b], 8[a], 9, 11

Seanor v. Bair Transport Co. of Del., 54 F.R.D. 35 (E.D. Pa. 1971) — 2[b], 6[c], 14[b]

Smith v. City of Chester, 152 F.R.D. 492 (E.D. Pa. 1994) — 13[a]

Spica v. Garczynski, 78 F.R.D. 134, 25 Fed. R. Serv. 2d 244 (E.D. Pa. 1978) — 3, 6[a], 19, 22

Standard Grate Bar Co. v. Defense Plant Corp., 3 F.R.D. 371 (M.D. Pa. 1944) — 2[b]

Stuski v. U.S. Lines, 31 F.R.D. 188 (E.D. Pa. 1962) — 5[a], 6[a], 6[b], 6[c], 17[b], 23

Teal v. King Farms Co., 18 F.R.D. 447 (E.D. Pa. 1955) — 3, 5[a], 6[b], 20

Titus v. Smith, 51 F.R.D. 224, 14 Fed. R. Serv. 2d 1457 (E.D. Pa. 1970) — 5[a], 6[b], 6[c], 10[a], 11

Trachtman v. T. M. S. Realty and Financial Services, 393 F. Supp. 1342 (E.D. Pa. 1975) — 5[a], 6[a], 6[b]

Wagg v. Hall, 42 F.R.D. 589 (E.D. Pa. 1967) — 3, 5[a], 6[a], 6[b], 6[c], 22

Walker v. Tilley Lamp Co., Ltd., 467 F.2d 219 (3d Cir. 1972) — 14[b]

Wexler v. Pep Boys, Manny, Moe & Jack, 28 Fed. R. Serv. 2d 416 (E.D. Pa. 1979) — 2[b]

Wokan v. Alladin Intern., Inc., 485 F.2d 1232 (3d Cir. 1973) — 6[a]


























Fourth Circuit

Anderson v. Stanco Sports Library, Inc., 52 F.R.D. 108 (D.S.C. 1971) — 2[b]

Bank United v. Hamlett, 286 B.R. 839 (W.D. Va. 2002) — 6[a], 6[b]

Ciccarello v. Joseph Schlitz Brewing Co., 1 F.R.D. 491 (S.D. W. Va. 1940) — 2[b]

Colleton Preparatory Academy, Inc. v. Beazer East, Inc., 223 F.R.D. 401 (D.S.C. 2004) — 6[a]

Colleton Preparatory Academy, Inc v. Beazer East, Inc., 219 F.R.D. 105, 183 Ed. Law Rep. 861 (D.S.C. 2003) — 6[a], 6[c], 8[a]

Consolidated Masonry & Fireproofing, Inc. v. Wagman Const. Corp., 383 F.2d 249, 11 Fed. R. Serv. 2d 1212 (4th Cir. 1967) — 4, 5[a], 6[a], 6[c], 17[b], 18

Cox v. Sprung's Transport & Movers, Ltd., 407 F. Supp. 2d 754 (D.S.C. 2006) — 3, 6[a]

Currie v. Wood, 112 F.R.D. 408, 7 Fed. R. Serv. 3d 972 (E.D. N.C. 1986) — 4, 6[a], 6[b], 6[c]

Davis v. Carabo, 50 F.R.D. 468 (D.S.C. 1970) — 5[a], 6[a], 6[c], 21[a]

Ellington v. Milne, 14 F.R.D. 241 (E.D. N.C. 1953) — 5[a], 6[a], 6[b], 6[d], 24

Federal Deposit Ins. Corp. v. Spartan Mining Co., Inc., 96 F.R.D. 677, 35 Fed. R. Serv. 2d 1601 (S.D. W. Va. 1983) — 13[b]

Henry v. Metropolitan Life Ins. Co., 3 F.R.D. 142 (W.D. Va. 1942) — 2[b]

Huntington Cab Co. v. American Fidelity & Cas. Co., 4 F.R.D. 496 (S.D. W. Va. 1945) — 6[a], 6[b], 8[a]

Kinnear Corp. v. Crawford Door Sales Co., 49 F.R.D. 3, 14 Fed. R. Serv. 2d 169 (D.S.C. 1970) — 2[b]

Life Ins. Co. of North America v. Monroe, 236 F.R.D. 255 (D. Md. 2006) — 13[b]

Meeks v. Friedman, 128 Fed. Appx. 316 (4th Cir. 2005) — 4

Moran v. Mitchell, 354 F. Supp. 86 (E.D. Va. 1973) — 6[a], 16[c], 16[e]

Mosswood Oil & Gas Co. v Lauderman (1983, ND W Va) 38 FR Serv 2d 876 — 16[a]

Nelson v. Coleman Co., 41 F.R.D. 7 (D.S.C. 1966) — 5[a], 6[a], 13[b], 16[a]

Rasmussen v. American Nat. Red Cross, 155 F.R.D. 549 (S.D. W. Va. 1994) — 13[a]

Trueblood v. Grayson Shops of Tenn., Inc., 32 F.R.D. 190, 7 Fed. R. Serv. 2d 1118 (E.D. Va. 1963) — 3, 6[a]



























Vinten v. Jeantot Marine Alliances, S.A., 191 F. Supp. 2d 642, 52 Fed. R. Serv. 3d 1067 (D.S.C. 2002) — 7[a]

Watson v Herndon (1979, CA4) 27 Fed Rules Serv 2d 917 — 13[a]

Willis v. MCI Telecommunications, 177 F.R.D. 350 (E.D. N.C. 1998) — 5[a]

Fifth Circuit

Bavouset v. Shaw's of San Francisco, 43 F.R.D. 296 (S.D. Tex. 1967) — 2[b], 7[b]

Beall v. Cockrell, 174 F. Supp. 2d 512 (N.D. Tex. 2001) — 6[b]

Bonaventure v. Butler, 593 F.2d 625, 27 Fed. R. Serv. 2d 419 (5th Cir. 1979) — 13[a]

Burton v. Continental Cas. Co., 431 F. Supp. 2d 651 (S.D. Miss. 2006) — 6[a]

Dalminter, Inc. v. Jessie Edwards, Inc., 27 F.R.D. 491, 4 Fed. R. Serv. 2d 883 (S.D. Tex. 1961) — 3, 6[a], 10[b]

Davis v. Parkhill-Goodloe Co., 302 F.2d 489, 5 Fed. R. Serv. 2d 853 (5th Cir. 1962) — 2[b]

Dierschke, Matter of, 975 F.2d 181, 24 Fed. R. Serv. 3d 588 (5th Cir. 1992) — 5[a], 13[b]

Effjohn Intern. Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 56 Fed. R. Serv. 3d 410 (5th Cir. 2003) — 6[a], 6[b]

Employers Ins. of Wausau v. Dunaway, 626 F. Supp. 1144 (S.D. Miss. 1986) — 6[b]

Federal Sav. and Loan Ins. Corp. v. Kroenke, 858 F.2d 1067, 12 Fed. R. Serv. 3d 1223 (5th Cir. 1988) — 13[b]

Finch v. Big Chief Drilling Co., 56 F.R.D. 456, 16 Fed. R. Serv. 2d 1560 (E.D. Tex. 1972) — 2[b], 3, 5[a], 6[a], 6[b], 16[e]

McCloskey & Co. v. Eckart, 164 F.2d 257 (C.C.A. 5th Cir. 1947) — 6[a], 20

Riley v. Allstate Ins. Co., 166 F.R.D. 374 (E.D. La. 1996) — 13[a]

Robinson v. Griffith, 108 F.R.D. 152 (W.D. La. 1985) — 13[a]

Segars v. Hagerman, 99 F.R.D. 274 (N.D. Miss. 1983) — 16[c]

Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 30 Fed. R. Serv. 2d 1649 (5th Cir. 1981) — 13[a]

U.S. v. Hassell, 82 Fed. Appx. 372 (5th Cir. 2003) — 13[b]
























Ware v. Zeller, 214 Fed. Appx. 363 (5th Cir. 2006) — 5[a]

Whitman v. U.S. Lines, Inc., 88 F.R.D. 528 (E.D. Tex. 1980) — 19

Sixth Circuit

Akers v. Bonifasi, 629 F. Supp. 1212 (M.D. Tenn. 1984) — 6[a]

Berthelsen v. Kane, 907 F.2d 617, 17 Fed. R. Serv. 3d 61 (6th Cir. 1990) — 6[a], 6[b]

Bowens v. Aftermath Entertainment, 254 F. Supp. 2d 629 (E.D. Mich. 2003) — 5[a], 6[b]

Bricks, Inc. v. CME Housing Group, 209 F.R.D. 416 (W.D. Tenn. 2002) — 8[a], 14[b]

Burrell v. Henderson, 434 F.3d 826, 63 Fed. R. Serv. 3d 966, 2006 FED App. 0013P (6th Cir. 2006) — 5[a], 6[a], 6[b], 6[c]

Darwish v. Tempglass Group, Inc., 26 Fed. Appx. 477 (6th Cir. 2002) — 6[a]

Golden v. National Finance Adjusters, 555 F. Supp. 42 (E.D. Mich. 1982) — 6[a], 6[b], 17[a]

Gray v. John Jovino Co., Inc., 84 F.R.D. 46 (E.D. Tenn. 1979) — 13[b]

Hale v. McCall, 425 F. Supp. 396 (E.D. Tenn. 1976) — 6[a], 7[a]

Johnson v. Harper, 66 F.R.D. 103, 20 Fed. R. Serv. 2d 928 (E.D. Tenn. 1975) — 6[b], 6[c], 6[d], 14[a]

Kennerly v. Aro, Inc., 447 F. Supp. 1083, 25 Fed. R. Serv. 2d 511 (E.D. Tenn. 1977) — 20

Lawrence v. Chabot, 182 Fed. Appx. 442, 2006 FED App. 0347N (6th Cir. 2006) — 13[a]

Levy, Matter of, 75 B.R. 894 (Bankr. S.D. Ohio 1987) — 3

Mercer v. Jaffe, Snider, Raitt and Heuer, P.C., 730 F. Supp. 74 (W.D. Mich. 1990) — 6[a]

Mitchell v. Eaves, 24 F.R.D. 434, 2 Fed. R. Serv. 2d 839 (E.D. Tenn. 1959) — 5[a], 19, 21[a]

Newhouse v. Probert, 608 F. Supp. 978 (W.D. Mich. 1985) — 6[a], 6[b], 6[c], 10[a]

O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 56 Fed. R. Serv. 3d 867, 2003 FED App. 0288P (6th Cir. 2003) — 6[b], 13[a]

Raimondo v. Village of Armada, 197 F. Supp. 2d 833 (E.D. Mich. 2002) — 6[e], 13[a]

Rooks v. American Brass Co., 263 F.2d 166, 1 Fed. R. Serv. 2d 939 (6th Cir. 1959) — 5[a], 6[a], 6[b], 6[d], 8[a], 9

























Rose v. Elliott, 70 F.R.D. 422 (E.D. Tenn. 1976) — 7[a]

Savin Corp. v. C.M.C. Corp., 98 F.R.D. 509, 36 Fed. R. Serv. 2d 1308 (N.D. Ohio 1983) — 16[a]

Schram v. O'Connor, 2 F.R.D. 192 (E.D. Mich. 1941) — 2[b]

Scott v. I.R.S., 622 F. Supp. 537 (E.D. Tenn. 1985) — 13[a]

Shepard Claims Service, Inc. v. William Darrah & Associates, 796 F.2d 190, 5 Fed. R. Serv. 3d 393 (6th Cir. 1986) — 3, 16[c]

Simmons v. Ohio Civil Service Emp. Assoc., 259 F. Supp. 2d 677 (S.D. Ohio 2003) — 5[a], 6[a], 6[b]

Simmons v. Ohio Civil Service Emp. Assoc., 210 F.R.D. 207 (S.D. Ohio 2002) — 5[a], 8[b]

Singer Co. v. Greever and Walsh Wholesale Textile, Inc., 82 F.R.D. 1, 27 Fed. R. Serv. 2d 1114 (E.D. Tenn. 1977) — 19

United Coin Meter Co., Inc. v. Seaboard Coastline RR., 705 F.2d 839, 36 Fed. R. Serv. 2d 478 (6th Cir. 1983) — 14[a]

U.S. v. Cagle, 235 F.R.D. 641 (E.D. Mich. 2006) — 13[a]

U.S. v. Hill, 533 F. Supp. 810 (E.D. Tenn. 1982) — 12

U.S. v. Knox, 79 F. Supp. 714 (E.D. Tenn. 1948) — 14[b]

U.S. v. Real Property Constituting Approximately Fifty (50) Acres, Located in Sevier County, Tenn., 703 F. Supp. 1306 (E.D. Tenn. 1988) — 6[a], 6[b]

Victoria's Secret Stores v. Artco Equipment Co., Inc., 194 F. Supp. 2d 704 (S.D. Ohio 2002) — 5[a], 6[a], 6[b]

Weiss v. St. Paul Fire and Marine Ins. Co., 283 F.3d 790, 52 Fed. R. Serv. 3d 355, 2002 FED App. 0093P (6th Cir. 2002) — 13[a]

Williams v. Meyer, 346 F.3d 607, 2003 FED App. 0344P (6th Cir. 2003) — 6[a], 6[b], 6[e]

Wilson v. Winstead, 84 F.R.D. 218 (E.D. Tenn. 1979) — 20

Seventh Circuit

Allen Russell Pub., Inc. v. Levy, 109 F.R.D. 315 (N.D. Ill. 1985) — 6[a], 6[c]

Bluegrass Marine Inc. v. Galena Road Gravel, Inc., 211 F.R.D. 356 (S.D. Ill. 2002) — 5[a], 6[a]



























Boyer v. State of Wis., 55 F.R.D. 90 (E.D. Wis. 1972) — 4, 5[a], 6[b], 6[c], 14[a]

Breuer Elec. Mfg. Co. v. Toronado Systems of America, Inc., 687 F.2d 182, 11 Fed. R. Evid. Serv. 1293 (7th Cir. 1982) — 13[b]

Chandler Leasing Corp. v. UCC, Inc., 91 F.R.D. 81, 32 Fed. R. Serv. 2d 1007 (N.D. Ill. 1981) — 6[a], 20

Chapman v. Stricker, 81 Fed. Appx. 77 (7th Cir. 2003) — 13[a]

Christiansen v. Adams, 251 F.R.D. 358 (S.D. Ill. 2008) — 13[a]

Chrysler Credit Corp. v. Macino, 710 F.2d 363, 36 Fed. R. Serv. 2d 1197 (7th Cir. 1983) — 3, 16[d]

Constr. Industry Welfare Fund of Cent. Ill., Trustees of v. Rawdin Concrete Const., Inc., 237 F.R.D. 414 (C.D. Ill. 2006) — 6[a], 13[b]

Greaves, In re, 121 B.R. 234 (N.D. Ill. 1990) — 5[a]

Hanley v. Volpe, 48 F.R.D. 387 (E.D. Wis. 1970) — 2[b]

Higgason v. Autterson, 49 Fed. Appx. 73 (7th Cir. 2002) — 8[a]

Kadet-Kruger & Co. v. Celanese Corp. of America, 216 F. Supp. 249 (N.D. Ill. 1963) — 7[b]

Landau v. Cosmetic and Reconstructive Surgery Center, Inc., 158 F.R.D. 117 (N.D. Ill. 1994) — 6[a]

Medline Industries, Inc. v. Medline Rx Financial, LLC, 218 F.R.D. 170, 57 Fed. R. Serv. 3d 243 (N.D. Ill. 2003) — 5[a], 6[a]

Merrill Lynch Mortg. Corp. v. Narayan, 908 F.2d 246, 17 Fed. R. Serv. 3d 645 (7th Cir. 1990) — 14[b]

New Field Intern. Sales, Inc. v. Salem, 116 F.R.D. 215, 6 Fed. R. Serv. 3d 1352 (N.D. Ill. 1986) — 6[a], 13[a]

Outboard Marine Corp., In re, 359 B.R. 893 (Bankr. N.D. Ill. 2007) — 6[a]

U.S. v. Di Mucci, 879 F.2d 1488, 14 Fed. R. Serv. 3d 175 (7th Cir. 1989) — 6[a], 6[c], 13[a]

U.S. v. Dimucci, 110 F.R.D. 263 (N.D. Ill. 1986) — 21[b]

U.S. v. Topeka Livestock Auction, Inc., 392 F. Supp. 944, 17 U.C.C. Rep. Serv. 517 (N.D. Ind. 1975) — 3, 5[a], 6[a], 6[c], 13[b]

Eighth Circuit

Advanced Communication Design, Inc. v. Premier Retail Networks, Inc., 186 F. Supp. 2d 1009, 52 Fed. R. Serv. 3d 721 (D. Minn. 2002) — 14[b]



























Bruce v. Paxton, 31 F.R.D. 197 (E.D. Ark. 1962) — 3, 6[a]

Canal Ins. Co. v. Ashmore, 61 F.3d 15, 33 Fed. R. Serv. 3d 59 (8th Cir. 1995) — 8[c]

DIRECTV, Inc. v. Meyers, 214 F.R.D. 504 (N.D. Iowa 2003) — 16[c]

F. T. C. v. Packers Brand Meats, Inc., 562 F.2d 9 (8th Cir. 1977) — 12, 13[b], 21[b]

Hayek v. Big Brothers/Big Sisters of America, 198 F.R.D. 518, 49 Fed. R. Serv. 3d 1010 (N.D. Iowa 2001) — 7[a]

Iowa State University Research Foundation, Inc. v. Greater Continents Inc., 208 F.R.D. 602 (S.D. Iowa 2002) — 20

Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 40 Fed. R. Serv. 3d 695 (8th Cir. 1998) — 3, 10[a]

Jones v. Davey, 702 F. Supp. 752 (E.D. Mo. 1988) — 5[a]

Mackie v. U.S. Mfg., Inc., 219 F.R.D. 639, 58 Fed. R. Serv. 3d 452 (N.D. Iowa 2004) — 13[a]

Marshall v. Boyd, 658 F.2d 552, 29 Fed. R. Serv. 2d 487, 31 Fed. R. Serv. 2d 866 (8th Cir. 1981) — 20

999 v. Cox & Co., 574 F. Supp. 1026 (E.D. Mo. 1983) — 5[a]

Stephenson v. El-Batrawi, 524 F.3d 907 (8th Cir. 2008) — 6[a]

Webster Industries, Inc. v. Northwood Doors, Inc., 244 F. Supp. 2d 998 (N.D. Iowa 2003) — 8[a]

Widmer-Baum v. Chandler-Halford, 162 F.R.D. 545 (N.D. Iowa 1995) — 16[a]

Ninth Circuit

Apache Nitrogen Products, Inc. v. Harbor Ins. Co., 145 F.R.D. 674, 26 Fed. R. Serv. 3d 360 (D. Ariz. 1993) — 9

Cassidy v. Tenorio, 856 F.2d 1412, 12 Fed. R. Serv. 3d 412 (9th Cir. 1988) — 6[a]

Cohen v. Murphey, 222 F.R.D. 416 (N.D. Cal. 2004) — 6[b]

Community Dental Services v. Tani, 282 F.3d 1164, 51 Fed. R. Serv. 3d 1245 (9th Cir. 2002) — 21[a]

Cross v. Fong Eu, 430 F. Supp. 1036 (N.D. Cal. 1977) — 6[a], 6[d]

Franchise Holding II, LLC. v. Huntington Restaurants Group, Inc., 375 F.3d 922, 59 Fed. R. Serv. 3d 108 (9th Cir. 2004) — 7[a]


























Katzir's Floor and Home Design, Inc. v. M-MLS.com, 394 F.3d 1143 (9th Cir. 2004) — 3

Koninklijke Philips Electronics N.V. v. KXD Technology, Inc., 245 F.R.D. 470 (D. Nev. 2007) — 8[a]

Kornblum v. Millstone, 38 Fed. R. Serv. 2d 174 (9th Cir. 1983) — 5[a]

Madsen v. Bumb, 419 F.2d 4 (9th Cir. 1969) — 5[a], 6[a], 16[d]

McManus v. American States Ins. Co., 201 F.R.D. 493 (C.D. Cal. 2000) — 6[a], 6[b]

Mendoza v. Wight Vineyard Management, 783 F.2d 941, 4 Fed. R. Serv. 3d 42 (9th Cir. 1986) — 6[a], 6[b]

Mood v. Global Diamond Resources, Inc., 125 Fed. Appx. 113 (9th Cir. 2005) — 14[b]

O'Connor v. State of Nev., 27 F.3d 357 (9th Cir. 1994) — 13[a]

Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 8 Fed. R. Serv. 2d 37D.33, Case 1 (9th Cir. 1964) — 11, 15[b]

Provident Sec. Life Ins. Co. v. Gorsuch, 323 F.2d 839, 7 Fed. R. Serv. 2d 1123 (9th Cir. 1963) — 3, 5[a], 6[a], 6[b], 16[e]

Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140 (9th Cir. 1975) — 4, 5[a], 15[b]

Speidel v. Bryan, 164 F.R.D. 241 (D. Or. 1996) — 8[a]

Tri-Continental Leasing Corp., Inc. v. Zimmerman, 485 F. Supp. 495, 30 Fed. R. Serv. 2d 301 (N.D. Cal. 1980) — 6[a], 20

Ultrasonics, Inc., In re, 269 B.R. 856, 51 Fed. R. Serv. 3d 759 (Bankr. D. Idaho 2001) — 13[a]

U.S. v. Scharringhausen, 226 F.R.D. 406, 61 Fed. R. Serv. 3d 1 (S.D. Cal. 2005) — 11

Vonderplanitz v. City of Los Angeles, 43 Fed. Appx. 60 (9th Cir. 2002) — 6[a]

Walter E. Heller Western, Inc. v. Seaport Enterprises, Inc., 99 F.R.D. 36, 36 Fed. R. Serv. 2d 1059 (D. Or. 1983) — 6[a], 6[b], 6[c], 7[a]

Wilson v. Moore & Associates, Inc., 564 F.2d 366 (9th Cir. 1977) — 10[a]

Tenth Circuit

Crutcher v. Coleman, 205 F.R.D. 581 (D. Kan. 2001) — 5[a], 6[a]

Fink v. Swisshelm, 182 F.R.D. 630 (D. Kan. 1998) — 14[b]

























First Interstate Bank of Oklahoma, N.A. v. Service Stores of America, Inc., 128 F.R.D. 679 (W.D. Okla. 1989) — 6[a], 6[c]

Grandbouche v. Clancy, 825 F.2d 1463, 8 Fed. R. Serv. 3d 1037 (10th Cir. 1987) — 6[b], 6[e], 21[a]

Littlefield v. Walt Flanagan & Co., 498 F.2d 1133 (10th Cir. 1974) — 2[b]

Porter v. Brancato, 171 F.R.D. 303 (D. Kan. 1997) — 6[a], 6[b]

School-Link Technologies, Inc. v. Applied Resources, Inc., 471 F. Supp. 2d 1101, 61 U.C.C. Rep. Serv. 2d 913 (D. Kan. 2007) — 13[a]

Eleventh Circuit

In re Raynard, 171 B.R. 699, 30 Fed. R. Serv. 3d 711 (Bankr. N.D. Ga. 1994) — 11

A. C. Samford, Inc. v. U.S., 226 F. Supp. 72 (M.D. Ga. 1963) — 2[b], 4, 5[a], 5[b], 6[a], 6[b], 7[a], 16[b]

Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 54 Fed. R. Serv. 3d 709 (11th Cir. 2003) — 6[c]

Boron v. West Texas Exports, Inc., 680 F. Supp. 1532 (S.D. Fla. 1988) — 6[e]

Heaton v. Bonacker & Leigh, 173 F.R.D. 533, 38 Fed. R. Serv. 3d 1398 (M.D. Ala. 1997) — 3, 13[b]

Insituform Technologies, Inc. v. AMerik Supplies, Inc., 588 F. Supp. 2d 1349 (N.D. Ga. 2008) — 13[b]

Insurance Co. of North America v. Morrison, 154 F.R.D. 278 (M.D. Fla. 1994) — 14[b]

Jawish, In re, 260 B.R. 564 (Bankr. M.D. Ga. 2000) — 5[a], 6[a]

Jones v. Harrell, 858 F.2d 667 (11th Cir. 1988) — 2[a]

Justice, In re, 330 B.R. 872, 62 Fed. R. Serv. 3d 833 (Bankr. M.D. Ga. 2005) — 3

Olympia Holding Corp., In re, 230 B.R. 623, 43 Fed. R. Serv. 3d 44 (Bankr. M.D. Fla. 1999) — 8[a]

Rasmussen v. W. E. Hutton & Co., 68 F.R.D. 231, 22 Fed. R. Serv. 2d 733 (N.D. Ga. 1975) — 3, 4, 5[a], 6[a], 6[b], 6[c], 8[a], 13[a]

Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475 (N.D. Ga. 1997) — 6[a]

S.E.C. v. Simmons, 241 Fed. Appx. 660 (11th Cir. 2007) — 6[a]

Turner Broadcasting System, Inc. v. Sanyo Elec., Inc., 33 B.R. 996 (N.D. Ga. 1983) — 16[e]

U.S. v. Nalls, 177 F.R.D. 696 (S.D. Fla. 1997) — 6[a], 10[a]


























USA Flea Market, LLC v. EVMC Real Estate Consultants, Inc., 248 Fed. Appx. 108 (11th Cir. 2007) — 13[a]

District of Columbia Circuit

Barber v Turberville (1954) 94 App DC 335, 218 F2d 34 — 5[a] , 5[b], 6[a], 6[b], 19

Bennett v. U.S., 462 F. Supp. 2d 35 (D.D.C. 2006) — 8[a]

Biton v. Palestinian Interim Self-Government Authority, 239 F.R.D. 1 (D.D.C. 2006) — 13[b]

Biton v. Palestinian Interim Self Government Authority, 233 F. Supp. 2d 31 (D.D.C. 2002) — 6[a], 6[b]

Brown v. Weschler, 135 F. Supp. 622 (D. D.C. 1955) — 6[b], 7[a]

Candido v. District of Columbia, 242 F.R.D. 151, 68 Fed. R. Serv. 3d 224 (D.D.C. 2007) — 6[a]

Capital Yacht Club v. Vessel AVIVA, 228 F.R.D. 389 (D.D.C. 2005) — 5[a], 6[a], 6[b]

Draisner v Liss Realty Co. (1954) 94 App DC 53, 211 F2d 808 — 5[a] , 14[b]

Draisner v Liss Realty Co. (1954), 94 App DC 53, 211 F2d 808 — 2[b]

Gillespie v. Capitol Reprographics, LLC, 573 F. Supp. 2d 80 (D.D.C. 2008) — 3

Grynberg v. BP P.L.C., 596 F. Supp. 2d 74 (D.D.C. 2009) — 6[a]

International Painters and Allied Trades Union and Industry Pension Fund v. H.W. Ellis Painting Co., Inc., 288 F. Supp. 2d 22 (D.D.C. 2003) — 11

James Elec. Co. v. Cougar Enterprises, Inc., 111 F.R.D. 324, 4 Fed. R. Serv. 3d 87 (D.D.C. 1986) — 6[a], 6[b], 13[a]

Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 29 Fed. R. Serv. 2d 911 (D.C. Cir. 1980) — 5[a]

Reading v. U.S., 506 F. Supp. 2d 13 (D.D.C. 2007) — 8[a]

Schwarz v Thomas (1955) 95 App DC 365, 222 F2d 305 — 7[b]

Van De Berg v. Social Sec. Admin., 254 F.R.D. 144 (D.D.C. 2008) — 6[b]

Whittaker v. District of Columbia, 228 F.R.D. 378, 62 Fed. R. Serv. 3d 41 (D.D.C. 2005) — 5[a], 6[a]

I. Prefatory matters

§ 1[a] Introduction—Scope























According to Rule 55(c) of the Federal Rules of Civil Procedure, the text of which is reproduced in § 1[c], infra, a party against whom a default has been entered is required to show "good cause" in order to have it set aside. Treated in this annotation[1]are decisions in which the courts have discussed the circumstances under which such a party will or will not be granted relief in application of this "good cause" test.[2]

§ 1[b] Introduction—Related matters

Related Annotations are located under the Research References heading of this Anno-tation.

§ 1[c] Introduction—Text of relevant federal rules

The text of Rule 55(c) is as follows:

For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

Rule 60(b), to which Rule 55(c) refers, specifies:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable ne-glect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C.S., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

§ 2[a] Summary and comment—Generally

[Cumulative Supplement]Any discussion of the "good cause" standard of Rule 55(c) must begin with a consideration of its relationship to

Rule 60(b), which provides relief from final judgments or orders upon grounds such as "mistake, inadvertence, sur-prise, or excusable neglect." The last clause of Rule 55(c) states that a default judgment may be set aside "in accor-dance with Rule 60(b)." Given this language, the majority of courts have recognized that Rule 55(c) "good cause" is a standard exclusively governing requests for relief from default entries, the grounds enumerated in Rule 60(b) be-coming applicable when the default has ripened into a default judgment which is sought to be set aside. In view of the similarity between the two procedures, however, it is not surprising that in a few isolated decisions, motions to vacate default judgments have been entertained under the good cause test of Rule 55(c). (See § 3, infra.)

Although the more specific grounds for relief set forth in Rule 60(b) have frequently been regarded as included

















within the concept of "good cause" for purposes of Rule 55(c), the courts have generally acknowledged that "good cause" is a broader and more liberal standard than anything found in Rule 60(b), and that, consequently, something less may be required to warrant the opening of an entry of default than would be necessary to set aside a default judgment (§ 3, infra). Thus, while "excusable neglect" has often been considered a reason for inaction sufficient to satisfy the good cause test, several courts have recognized that relief may be granted under Rule 55(c) even when the neglect giving rise to the default cannot, strictly speaking, be characterized as excusable (§ 5[a], infra).

It has been uniformly recognized that the determination of whether good cause exists under Rule 55(c) is a mat-ter resting largely within the discretion of the trial judge, although some courts have added the proviso that in situa-tions of doubt, defaults should be set aside so that cases may be decided on their merits (§ 4, infra). In exercising this broad discretion, however, the courts have generally afforded relief where presented with certain basic explanations for the inaction giving rise to the default.

Thus, reasons like "excusable neglect," "mistake," "inadvertence," and "surprise"—all specified grounds for re-lief under Rule 60(b)—have commonly been regarded as reasons for inaction sufficient to meet the good cause test of Rule 55(c) (§ 5[a], infra). Moreover, where the inadvertence, mistake, or neglect resulting in the default is that of an attorney rather than the defaulting party himself, the courts have displayed a seldom articulated but definitely rec-ognizable tendency to afford relief under Rule 55(c) more liberally than they have where the defaulting party is per-sonally culpable (§ 5[b], infra). Good cause is not an entirely limitless standard, however, and it has been said by particular courts that a default should not be set aside in application thereof if it was attributable to "gross neglect," an "intentional lack of diligence," a "willful act," or the like (§ 5[a], infra).

In determining whether relief is appropriate under Rule 55(c), the courts have considered certain matters having nothing to do with the sufficiency of the defaulting party's excuse for the inaction which resulted in his default. These considerations would of course not be relevant to the question of good cause if that term was meant to signify nothing more than "good cause for inaction," but Rule 55(c) uses the term in a broader and different sense, requiring the defaulting party to show good cause why, as a matter of equity, he should be afforded relief under all the atten -dant circumstances. Such a showing may include the establishment of a sufficient excuse for inaction, but good cause is clearly a standard broad enough to permit the courts to consider other matters relevant to the efficacy or fairness of opening the default.

One such consideration has been whether the defaulting party has made a showing indicating that he has a meri-torious defense to the claim against him. In several cases, the courts have taken the position that relief should not be afforded under Rule 55(c) in the absence of such a showing, the theory being that an opening of the default could not conceivably serve the interests of justice if it could not affect the outcome of the suit (§ 6[a], infra). And while not expressly subscribing to this view, the courts in many other cases, in deciding to grant relief under Rule 55(c), relied in part upon the fact that the moving party had satisfactorily demonstrated that a meritorious defense existed (§ 6[a], infra). Indeed, it has never been suggested that a default may properly be set aside in the absence of such a showing. Regarding what constitutes a "showing" sufficient for this purpose, moreover, it has generally been ac-knowledged that a mere conclusory statement that a meritorious defense exists is inadequate (§ 6[a], infra).

A consideration given essentially the same type of treatment has been whether an opening of the default will re -sult in prejudice to the nondefaulting party. Thus, several courts have regarded the absence of such prejudice as a prerequisite to relief under Rule 55(c), while other courts, without subscribing to this view in so many words, have at least predicated a decision to open a default in part upon the fact that the nondefaulting party would suffer no harm as a result thereof. (See § 6[b], infra.)

Although Rule 55(c), unlike Rule 60(b), does not specify any time period within which relief must be requested, several courts have acknowledged that in order to be entitled to such relief the defaulting party must move therefor with reasonable promptness (§ 6[c], infra). And without expressly adopting this position, the courts in certain other
















cases, in connection with opening particular defaults, have made it a point to emphasize that the defaulting party had taken prompt curative action (§ 6[c], infra).

A final matter considered by the courts in construing Rule 55(c) has been what might be termed the monetary substantiality of the particular lawsuit. A default resulting in a sizeable recovery is obviously much more damaging to the defaulting party than one involving a comparatively trifling sum, and as a consequence the view has evolved that matters involving large amounts of money should not be determined by default judgment if it can reasonably be avoided. Subscribing to this view, the courts in several Rule 55(c) cases have at least partially predicated a decision to open a default upon the substantiality of the sum involved in the particular controversy. (See § 6[d], infra).

The foregoing principles and factors have been applied or considered relevant by the courts in cases involving defaults attributable to various reasons for inaction, and the particular facts and results of these decisions have been classified hereinafter according to whether the critical inaction was that of the defaulting party himself, his retained counsel, or his insurer.

Defaults resulting from inaction on the part of the defaulting party himself have been set aside under Rule 55(c) where it was shown that they were attributable to his failure to receive any actual notice of the lawsuit (§ 8[a], infra); his misunderstanding of the complaint or some other suit document, resulting in ignorance of the fact that an action had been instituted against him (§ 9, infra); his failure to appreciate that the Federal Rules require that an answer be filed with the court as well as served upon the opposing party's counsel (§ 10[b], infra); and his allegedly compelled absence from the jurisdiction following service of process (§ 12, infra). The same conclusion has been reached where no notice was given that a further delay in answering interrogatories and replying to certain admission re-quests would result in the entry of a default (§ 8[b], infra), but not where the defaulting party could offer no reason-able explanation for his failure to realize that he was required to answer the complaint after his insurance company had disclaimed coverage and returned the suit papers to him (§ 10[a], infra). Default entries have been set aside in several instances where it was shown that the defaulting party's inaction may have been induced by doubt or confu-sion regarding the court's jurisdiction, over himself personally or over the case (§ 7[a], infra), but Rule 55(c) relief has been denied to a defendant who deliberately avoided answering the complaint in the belief that he had not been validly served with process (§ 7[b], infra). By the same token, parties have been relieved of defaults attributable to their own inaction in some but not all instances where they were shown to have relied upon the advice of others not to respond (§ 11, infra). Rule 55(c) relief has been granted (§ 13[a], infra), as well as denied (§ 13[b], infra), where there were other specified reasons for a defaulting party's failure to take timely action, and the courts have set aside defaults in some cases where the precise reason for such inaction was not revealed (§ 14[a], infra). Rule 55(c) good cause has been held not to exist, however, where it appeared that the defaulting party could offer no explanation for his inaction (§ 14[b], infra).

Relief has frequently been granted under Rule 55(c) in cases involving defaults attributable to inaction on the part of the attorney representing the defaulting party. Thus, defaults have been set aside where a defense counsel's failure to take timely action was the result of his mistaken belief that he was not required to serve an answer after having filed an appearance in the case (§ 15[a], infra); his reliance upon the language of a summons indicating that he had a longer time period in which to serve an answer than that actually allotted to him (§ 16[b], infra); his erro-neous belief that settlement negotiations being conducted with opposing counsel contemplated the instant case, rather than another (§ 19, infra); and his inability to determine from reading a certain document in the court clerk's office that a summons had in fact been served (§ 17[a], infra). The same conclusion has been reached where the de-fault was caused by the neglect of a member of defense counsel's clerical staff, who failed to secure a stipulation for an extension of time in which to answer from opposing counsel (§ 18, infra), and defaults have generally been set aside upon a showing that counsel for the defendant mistakenly believed that such a stipulation existed or was bind -ing in the absence of court approval (§ 16[c], 16[d], infra). An attorney's misunderstanding or misinterpretation of the Federal Rules has been regarded as a good cause for setting aside a default where it resulted in a mistake as to the applicability of an exception to the requirement that an answer be filed within 20 days ( § 16[e], infra), but relief has been denied under Rule 55(c) where a defense counsel was ignorant of the basic fact that the Rules required him to file an answer after having the case removed from a state to a federal court ( § 15[b], infra). Relief has likewise








been denied where a defense counsel failed to clear up a misconception regarding the date process had been served, and thus did not know that the period for filing an answer had commenced earlier than he supposed (§ 16[a], infra), and the courts have generally rejected the argument that an attorney's delay in answering should be considered ex-cusable under Rule 55(c) to the extent that opposing counsel has failed to notify him that a default entry would be or had been applied for (§ 17[b], infra). Correspondingly, other specified reasons for attorney inaction have been held to warrant a finding of good cause for purposes of Rule 55(c) (§ 20, infra), and the courts have reached the same re-sult in most but not all cases in which the precise reason for such inaction was not revealed (§ 21, infra).

The courts have not been particularly liberal in granting relief from defaults attributable to the inaction of insur-ance companies which have assumed the defense of lawsuits against their insureds. Thus, Rule 55(c) relief has been denied in cases where, because of some error or neglect of an insurer in transmitting the suit papers from one of its offices to another, they either never arrived at the office charged with responding or they arrived there too late for the filing of a timely answer (§ 22, infra). Similarly, it has been held that good cause did not exist where the reason for the defendant's failure to file an answer was his insurer's mistaken belief that process papers served in the case related to another pending suit, although the same District Court has reached the opposite conclusion in a decision involving strikingly similar circumstances (§ 23, infra). On the other hand, Rule 55(c) relief has been granted where it was shown that the suit papers were ignored precisely because, upon their arrival at the insurer's office, a careless employee had placed them in a "closed" rather than active file (§ 24, infra).

CUMULATIVE SUPPLEMENT

Cases:

In personal injury action, record supported trial court's ruling that defendant had made bare minimum showing of good cause to support relief under Rule 55(c). Jones v Harrell (1988, CA11 Ga) 858 F2d 667, CCH Bankr L Rptr ¶72478.

[Top of Section]

[END OF SUPPLEMENT]

§ 2[b] Summary and comment—Practice pointers

[Cumulative Supplement]The practitioner desiring a total picture of the circumstances under which parties have been excused from their

defaults should be aware that although decisions construing the good cause standard of Rule 55(c) are largely defini-tive of the subject, cases somewhat beyond the scope of this annotation are likewise relevant. Specifically, while Rule 55(c) is directed to the concept of relief from an entry of default, and would thus seem to be the Rule clearly envisioned as the basis of any motion therefor, it remains a fact that, rightly or wrongly, requests to set aside default entries have been entertained under other Federal Rules, or have at least been disposed of without reference to or re-liance upon Rule 55(c).

For example, Federal Rule 6(b) provides in pertinent part that: when by these rules or by a notice given thereun-der or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. Parties technically in default have frequently been permitted to file late answers by courts applying Rule 6(b), although in most instances it did not appear that there had been a formal entry of default in need of opening (see, for example, Anderson v Stanco Sports Library, Inc. (1971, DC SC) 52 FRD 108; Davis v Parkhill-Goodloe Co., (1962, CA5 Fla) 302 F2d 489). In Schram v O'Con-nor (1941, DC Mich) 2 FRD 192, however, an entry of default had occurred, and the defendant's motion to set it


















aside relied upon both Rule 55(c) and Rule 6(b). Stating that "if Rule 6(b) means anything at all it is to cover just such a case as this," the court proceeded to grant the motion in application of that Rule, ignoring Rule 55(c) entirely.

Similarly, in cases where a default has been entered but a default judgment has not yet been rendered, some courts have appeared to open the default in application of Rule 60(b), which is supposed to relate only to relief from a "final" judgment or order. For example, in granting a motion to set aside a mere default entry, the court in Chap-man v Henry A. Dreer, Inc. (1953, DC Pa) 14 FRD 218, made no mention of Rule 55(c), observing only that "recent cases applying Rule 60(b) have uniformly held that that rule must be given a liberal construction. " It should be noted, moreover, that in the typical case where a default judgment is vacated pursuant to Rule 60(b), the court's or-der will direct that the action proceed to trial, thus implicitly setting aside the entry of default which preceded and acted as a foundation for the judgment. For the most part, the courts in such decisions have neither referred to nor in-dependently relied upon Rule 55(c) in connection with the latter determination (see, for example, Standard Grate Bar Co. v Defense Plant Corp. (1944, DC Pa) 3 FRD 371; Kinnear Corp. v Crawford Door Sales Co. (1970, DC SC) 49 FRD 3).

Of similar import are decisions involving motions under Rule 55(b)(2) for the entry of a default judgment. There is a substantial body of authority recognizing that a court is under no compulsion to grant a Rule 55(b)(2) mo-tion, but instead has considerable discretion in the matter (see 6 Moore's Federal Practice ¶55.05[2]). Where this dis-cretion is exercised in favor of denying the motion and permitting the case to proceed to trial, the court in effect sets aside an entry of default. Here too, however, the courts have frequently granted such relief without relying upon Rule 55(c) (see, for example, Henry v Metropolitan Life Ins. Co. (1942, DC Va) 3 FRD 142; Bavouset v Shaw's of San Francisco (1967, DC Tex) 43 FRD 296; Hanley v Volpe (1970, DC Wis) 48 FRD 387). It is thus apparent that not every decision involving relief from a default entry represents a construction of the good cause standard of Rule 55(c).

If defense counsel anticipates that he may not be able to serve an answer within the 20-day period specified in the Federal Rules, he should take certain steps to protect his client's interest. At the very least, he should immedi-ately file an appearance in the action. While this alone will not preclude the entry of a default if it is not followed by a responsive pleading, an appearance with the indication of a desire to contest the action may induce the court, in the exercise of its discretion, to refuse to enter a default (see 10 Wright and Miller, Federal Practice and Procedure: Civil § 2682). Moreover, pursuant to Rule 55(b)(2), a party who has appeared in the action is entitled to at least 3 days, written notice of any application for a default judgment. Additionally, defense counsel should immediately at -tempt to secure a stipulation from the plaintiff's attorney granting him an extension of time in which to plead. He should remember to obtain the court's approval of this arrangement, however, since it has been held that a stipulation of this nature is ineffective in the absence of such approval (see Orange Theatre Corp. v Rayherstz Amusement Corp. (1942, CA3 NJ) 130 F2d 185). If the stipulation cannot be obtained, defense counsel should promptly apply to the court for an enlargement of the time in which to answer. Rule 6(b) allows the court to grant such an enlargement, for mere "cause shown" and without the necessity of a formal motion, provided the request therefor is made before the expiration of the originally applicable time period. If an answer is already overdue, but a default has not yet been entered, defense counsel may still, under Rule 6(b), request an enlargement of time in which to respond, but in this event he must make a formal motion and establish that his failure to take timely action was the result of "excusable neglect." In the same situation, however, it has been recognized that a motion for relief under Rule 55(c) is appropri-ate even though there has not been a formal entry of default (see Orange Theatre Corp. v Rayherstz Amusement Corp. (1942, CA3 NJ) 130 F2d 185). Permission to file a late answer would then require a showing of good cause, a standard arguably more liberal than the excusable neglect test of Rule 6(b).

Counsel for the party seeking to obtain a default entry should be aware that although Rule 55(a) provides that the clerk of the court shall make the entry upon a mere demonstration of the fact of default "by affidavit or other -wise," the court itself has inherent power to take the same action, or to refuse to enter a default in the exercise of its discretion (see A. C. Samford, Inc. v United States (1963, DC Ga) 226 F Supp 72, infra § 16[b]). The entry of a de-fault may therefore not constitute a mere formality, and counsel should accordingly avoid taking steps which might prejudice his chances of obtaining it. In one decision, for example, the court denied a motion to direct the clerk of



http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR55&FindType=L&ReferencePositionType=T&ReferencePosition=SP_8b3b0000958a4









http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR55&FindType=L&ReferencePositionType=T&ReferencePosition=SP_c0ae00006c482




























the court to enter a default precisely because the plaintiff had waived his right thereto by consenting to numerous continuances following the defendant's failure to file a timely answer (Ciccarello v Jos. Schlitz Brewing Co. (1940, DC W Va) 1 FRD 491). Counsel should thus exercise some diligence in requesting a default entry, but he should definitely avoid giving the impression that he is overly anxious to win by default. In several cases, for example, de -faults attributable to the unintentional inaction of defense attorneys have been set aside by courts which have made it a point to emphasize that the plaintiff's attorney obtained the particular default without bothering to notify defense counsel of his delinquency. (§ 17[b], infra). Correspondingly, Rule 55(c) relief has generally been denied where it was shown that counsel for the nondefaulting party took steps to remind the opposing party of his delinquency be-fore seeking an entry of default (see, for example, Draisner v Liss Realty Co. (1954), 94 App DC 53, 211 F2d 808, cert den 348 US 877, 99 L Ed 690, 75 S Ct 115, infra § 14[b]).

It should also be remembered that Rule 55(a) permits a default to be entered as to any party against whom a judgment for affirmative relief is sought, not just defendants who have failed to answer complaints. Rule 55(d) specifically provides that the provisions of the Rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross claim or a counterclaim. Moreover, while Rule 55(a) contemplates the entry of a default only upon a party's failure to "plead or otherwise defend," a party who has filed a responsive pleading may still be subjected to a default entry for a later failure to comply with discovery rules. In this connection, see Seanor v Bair Transport Co. (1971, DC Pa) 54 FRD 35, infra § 14[b], where a default was entered after the defendants had persistently refused to answer certain interrogatories. Federal Rules 37(b)(2)(C) and 37(d) both provide that a default judgment may be entered as a sanction for a party's disobedience of a discovery or-der.

An application to open a default entry should be made with reasonable promptness, since a number of courts have recognized that a lack of diligence in this respect will preclude relief even if there was a good reason for the party's failure to plead or otherwise defend (§ 6[c], infra). It should be incorporated in a formal motion for relief un-der Rule 55(c), although such formality has not always been required. Thus, some courts have appeared to treat a party's opposition to a Rule 55(b) (2) motion for the entry of a default judgment as a sufficient motion for relief from a default entry under Rule 55(c) (see, for example, Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456), while in one decision a defendant's memorandum opposing the plaintiff's motion to strike his late answer was con-sidered a Rule 55(c) motion (see Bedard v Consolidated Mut. Ins. Co. (1970, DC Puerto Rico) 313 F Supp 1020). In any event, the grounds relied upon to establish good cause should be stated with particularity in the motion or a sup -porting affidavit, and a meritorious defense should be shown in the motion or in an affidavit or proposed answer ac-companying it. Specific facts supporting the meritorious defense claim should be set forth, since general denials and mere conclusory statements that a good defense exists have usually been held insufficient for this purpose ( § 6[a], infra). It should also be alleged and shown that the opposing party will suffer no prejudice as a result of the opening of the default, many courts regarding this as a prerequisite to relief (§ 6[b], infra), and if the circumstances justify such claims, it should probably be emphasized that the inaction giving rise to the default was that of an attorney, rather than the moving party himself, and that a denial of relief would have a monetary impact which is substantially damaging. The latter allegations are desirable precisely because the courts have shown considerable leniency in granting Rule 55(c) motions both when the moving party has not been personally negligent (§ 5[b], infra) and when the amount involved in the particular lawsuit is substantial (§ 6[d], infra).

Rule 60(b), which applies to relief from default judgments, permits a court to impose "such terms as are just" in granting such relief. In application of this provision, the courts have, inter alia, required defendants relieved of de-fault judgments to comply with certain discovery orders, to post a bond securing the amount of the judgment pend -ing trial on the merits, and to reimburse the plaintiff for costs incurred because of the default, such as court costs and attorney's fees (see annotation at 3 A.L.R. Fed. 956). While there is no exact counterpart to this provision in Rule 55(c), it has been recognized that conditions may be imposed in the setting aside of a default entry. For example, the court in Littlefield v Walt Flanagan & Co. (1974, CA10 Colo) 498 F2d 1133, acknowledged that the imposition of conditions or sanctions in an order vacating a default is a useful device in mitigating any prejudice which the plain-tiff might suffer by allowing the defendant to plead.

















http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR55&FindType=L&ReferencePositionType=T&ReferencePosition=SP_5ba1000067d06







Counsel representing a defendant faced with a claim for unliquidated damages should be aware that if his client concedes liability and wishes to contest only the plaintiff's right to recover the amount demanded, he will not neces-sarily be precluded from doing so by the fact that he has allowed a default to be entered. Rule 55(b)(2) authorizes the court to conduct whatever hearings are necessary on an application for the entry of a default judgment. It has generally been recognized that a default does not concede that the amount demanded is correct, and that when a de-fendant contests the amount of the claim a full hearing may be required on the issue of damages (see cases cited in 10 Wright and Miller, Federal Practice and Procedure: Civil § 2688). It might also be noted that a mere entry of de-fault has no res judicata effect until it has ripened into a default judgment (see 6 Moore's Federal Practice ¶55-03[2]).

While it is usually the party suffering the default entry who moves to set it aside, Rule 55(c) does not preclude the party who obtained the default from doing so. In this connection, see Ferraro v Arthur M. Rosenberg Co. (1946, CA2 Conn) 156 F2d 212, an action by a tailor to recover overtime compensation in which a default was entered upon the defendant employer's failure to answer the complaint after the plaintiff had filed a bill of particulars assert-ing, inter alia, that his workweek consisted of irregular hours. Nearly 8 months later, however, the plaintiff himself filed a motion to open the default entry under Rule 55(c), alleging only that he was dissatisfied with the attorneys who had filed the bill of particulars and had discharged them, that he had hired a new attorney, and that he now de -sired to amend the bill to allege that his workweek consisted of a regular 48 hours, a theory apparently entitling him to greater overtime recovery. While denying the motion, principally because the plaintiff could neither explain his delay nor show that his former attorneys were incompetent or inattentive, Justice Learned Hand expressly acknowl-edged that there is nothing in Rule 55(c) which would prevent a party who has obtained a default entry from later seeking to set it aside. Indeed, the decision suggests that it would be appropriate to grant Rule 55(c) relief on behalf of the very party who secured the default entry if, through the incompetence of counsel, he would otherwise be de-prived of the recovery to which he is entitled.


Cases:

Rule 55(c) does not, by its terms, require motion; Rule 55(c) requires only that "good cause" be shown. Wexler v Pep Boys, Manny, Mo & Jack (1979, DC Pa) 28 Fed Rules Serv 2d 416.

[Top of Section]

[END OF SUPPLEMENT]

II. General considerations

§ 3. Relationship of Rule 55(c) to Rule 60(b)

[Cumulative Supplement]

Synopsis

While the specific grounds for relief from a default or other final judgment which are listed in Rule 60(b) (for exam-ple, "mistake, inadvertence, surprise, or excusable neglect") have frequently been regarded as included within the concept of good cause for purposes of Rule 55(c), it is generally recognized that good cause is a broader and more liberal standard requiring less justification for relief than would be necessary under Rule 60(b). Rule 55(c) has usu-



















ally been interpreted to establish good cause as a test only where the relief sought is the opening of an entry of de -fault, but it has been considered a standard applicable to requests to vacate default judgments in a few isolated deci-sions.

Rule 55(c) provides that when a default judgment has been entered, it may be set aside in accordance with Rule 60(b), which lists various grounds for relief from a final judgment or order (§ 1[c], supra). Because of the obviously close relationship between the setting aside of a default entry and the opening of a default judgment, courts faced with construing the somewhat nebulous good cause standard of Rule 55(c) have been inclined to look to the more specific grounds for relief enumerated in Rule 60(b) and regard them as included within the concept of good cause.

A general expression of this approach is to be found in Medunic v Lederer (1974, DC Pa) 64 FRD 403, where the court, noting that an entry of default may be set aside for good cause shown under Rule 55(c), observed that in determining what constitutes such good cause, reference is generally made to Rule 60(b) relating to the opening of final judgments, including judgments by default, on grounds such as "mistake, inadvertence, surprise, or excusable neglect."

And reference is made to decisions, discussed in § 5[a], infra, wherein the courts acknowledged that a showing of some ground for relief under Rule 60(b), such as "excusable neglect," would establish the existence of a reason for inaction sufficient to satisfy the good cause standard of Rule 55(c). Indeed, one commentator has observed that "in general, any showing sufficient to justify relief under Rule 60(b) should qualify as 'good cause' for purposes of reopening a default entry" (10 Wright and Miller, Federal Practice and Procedure: Civil § 2694).

While the courts thus tend to incorporate Rule 60(b) grounds for relief within the definition of "good cause" for purposes of Rule 55(c), it is equally true that they generally do not regard these grounds as exhaustive of the good cause concept. Instead, it has been recognized that the good cause standard is broader and hence more liberal than any standard reflected in Rule 60(b), and that, accordingly, less is required to warrant relief from an entry of default under Rule 55(c) than would be required to set aside a default judgment pursuant to Rule 60(b). The following cases contain express statements to this effect.First Circuit

Eisler v Stritzler (1968, DC Puerto Rico) 45 FRD 27

Sonus Corp. v Matsushita Electric Industrial Co., (1974, DC Mass) 61 FRD 644Second Circuit

Securities & Exchange Com. v Vogel (1969, DC NY) 49 FRD 297

Broder v Charles Pfizer & Co. (1971, DC NY) 54 FRD 583

Lutwin v New York (1985, SD NY) 106 FRD 502, 2 FR Serv 3d 265, affd without op (CA2 NY) 795 F2d 1004

Third Circuit Teal v King Farms Co. (1955, DC Pa) 18 FRD 447

Nunn v Reina (1958, DC Pa) 21 FRD 573

Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395; Dascenzo v Blain (1974, DC Pa) 19 Fed Rules Serv 2d 384

Fourth Circuit Trueblood v Grayson Shops of Tennessee, Inc. (1963, DC Va) 32 FRD 190

Fifth Circuit Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456

Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231Seventh Circuit




































Chrysler Credit Corp. v Macino (1983, CA7 Ill) 710 F2d 363, 36 FR Serv 2d 1197

United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944

Thus, noting that a default may be set aside for good cause shown under Rule 55(c), whereas a party seeking to vacate a default judgment is required by Rule 60(b) to make a factual showing that his failure to answer was due to a reason such as "mistake inadvertence, surprise, or excusable neglect," the court in Eisler v Stritzler (1968, DC Puerto Rico) 45 FRD 27, observed that in view of this situation, a court might feel justified in setting aside a default entry on a showing that would not move it to set aside a default judgment.

Similarly, it was observed in Broder v Charles Pfizer & Co. (1971, DC NY) 54 FRD 583, that the good cause shown test of Rule 55(c) for setting aside a default entry is more lenient than the test under Rule 60(b) for setting aside a default judgment.

Noting that once a default judgment has been entered, an applicant for relief therefrom must comply with Rule 60(b), the court in Dascenzo v Blain (1974, DC Pa) 19 Fed Rules Serv 2d 384, added that the standards for relief un-der Rule 60(b) are probably more restrictive than the good cause standard for setting aside a default entry under Rule 55(c).

Observing that relief from a default judgment may be granted under Rule 60(b) for, inter alia, "mistake, inad-vertence, surprise, or excusable neglect," whereas a mere entry of default may be set aside for good cause shown un-der Rule 55(c), the court in Trueblood v Grayson Shops of Tennessee, Inc. (1963, DC Va) 32 FRD 190, added that while under either Rule the authority is to be exercised in the sound discretion of the trial court, justification for va-cating an entry of default is somewhat less stringent than what is required under Rule 60(b).

And, although indicating that the basic elements required for relief from a default entry under Rule 55(c) are the same as those required for relief from a default judgment under Rule 60(b), namely, a sufficient excuse for the de-fault, quick corrective action by the defaulting party, and the allegation of a meritorious defense, the court in United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944, acknowledged that in view of the broad good cause standard of Rule 55(c), such requirements are less stringently applied in the case of a default entry.

Most courts have acknowledged or acted upon the assumption that it is the good cause test of Rule 55(c) which governs requests for relief from default entries, while motions to set aside default judgments should be evaluated in terms of the moving party's ability to establish one of the grounds for relief listed in Rule 60(b). In some cases, how-ever, the distinction between the two Rules has seemingly been overlooked or ignored. Specifically, as indicated in § 2[b], supra, some courts have appeared to entertain motions to set aside mere entries of default under Rule 60(b). Correspondingly, the courts in the ensuing decisions stated or appeared to recognize that the good cause standard of Rule 55(c) is itself applicable in the determination of whether a default judgment should be set aside.

Comment

The impression seemingly entertained by these courts, namely, that the good cause standard of Rule 55(c) applies in both the opening of a default entry and the setting aside of a default judgment, could be attributable to the fact that the wording of Rule 55(c) is not entirely free from ambiguity. As previously indicated, Rule 55(c) reads: "for good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." The inclusion of the entire Rule within one sentence, as well as the use of the term "likewise" in the last clause, makes it susceptible to the interpretation that the phrase "for good cause shown" was meant to relate to both clauses thereof, with the result that good cause should somehow play a part in the determination of whether to set aside a default judgment. It is submitted that such an interpretation was never in -tended by the draftsman of the Rule, however, and the overwhelming majority of the courts have at least implicitly rejected it. It would be unnecessary and utterly meaningless for Rule 55(c) to state that a default judgment may be set aside "in accordance with Rule 60(b)" which specifies definite grounds for relief, if the same relief could be af-forded simply "for good cause." Perhaps, to avoid confusion, Rule 55(c) should have been worded the way one noted commentator reads it: "the court is authorized to set aside an entry of default 'for good cause shown'; and to set aside a judgment by default, if one has been entered, in accordance with Rule 60(b)." 6 Moore's Federal Practice ¶55.10[1].







































Thus, the court in Mannke v Benjamin Moore & Co. (1967, CA3 Pa) 375 F2d 281, construed Rule 55(c) to mean that "a court may set aside the entry of a default judgment for good cause," and proceeded to apply this stan -dard in deciding the merits of a motion to open a default judgment. To the identical effect are Nicholson v Allied Chemical Corp. (1961, DC Pa) 200 F Supp 206; and Wagg v Hall (1967, DC Pa) 42 FRD 589.

Similarly, in Dalminter, Inc. v Jessie Edwards, Inc. (1961, DC Tex) 27 FRD 491, it was said that "under Rule 55(c) the party seeking to set aside a default judgment must show good cause, and under Rule 60(b) some reason as stated therein must be present." The court went on to conclude that the particular defendant was entitled to relief pre-cisely because he had established both good cause and Rule 60(b) mistake or excusable neglect.

It was stated by the court in Bruce v Paxton (1962, DC Ark) 31 FRD 197, that "Rule 55(c) of the Federal Rules provides that a federal court may set aside a default judgment for good cause shown or in accordance with Rule 60(b)." Consequently, the court observed, where a defendant has been served validly, a default judgment will be opened only if he is able to show that he is entitled to relief "under Rule 55(c) or Rule 60(b)."

And it was said in Provident Secur. Life Ins. Co. v Gorsuch (1963, CA9 Ariz) 323 F2d 839, cert den 376 US 950, 11 L Ed 2d 970, 84 S Ct 966, that "the district court may, pursuant to Rules 55(c) and 60(b), Federal Rules of Civil Procedure, and for good cause shown, set aside a judgment by default."


Cases:

"Good cause" threshold for setting aside default is lower and more easily overcome than showing necessary for relief from default judgment under rule governing motions for relief from judgment. Fed.Rules Civ.Proc.Rules 55(c), 60(b), 28 U.S.C.A. Brand Scaffold Builders, Inc. v. Puerto Rico Elec. Power Authority, 364 F. Supp. 2d 50 (D.P.R. 2005).

Standard for setting aside entry of default is less rigorous than standard for setting aside default judgment. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Argus Research Group, Inc. v. Argus Securities, Inc., 204 F. Supp. 2d 529 (E.D. N.Y. 2002).

When applied to motion to set aside default judgment under FRCivP 55(c), standards of FRCivP 60(b) are gen-erally interpreted with greater liberality, and doubts resolved in favor of moving party, in view of preference for consideration of case on its merits. Bell Tel. Laboratories, Inc. v Hughes Aircraft Co. (DC Del) 73 FRD 16.

Factors set forth in cases deciding applications under Rule 60(b) are relevant to determination of whether "good cause" exists to warrant grant of Rule 55(c) motions setting aside judgment by default. Re Arthur Treacher's Fran-chisee Litigation (1981, ED Pa) 92 FRD 398.

In determining what constitutes good cause for purposes of Rule 55(c) to set aside default, factors described in Rule 60(b) for setting aside default judgment are relevant. Spica v Garczynski (ED Pa) 78 FRD 134.

Factors applicable to vacation of defaults should be applied more leniently when the action is one to vacate de -fault as opposed to one for relief from judgment, and the court should always keep an eye toward the preference for meritorious resolutions of disputes. Fed.Rules Civ.Proc.Rules 55(c), 60, 28 U.S.C.A. Cox v. Sprung's Transport & Movers, Ltd., 407 F. Supp. 2d 754 (D.S.C. 2006).

Although elements for relief under Rule 55(c) and Rule 60(b) are substantially the same, standards are applied more stringently on motion to vacate default judgment under Rule 60(b). Shepard Claims Service, Inc. v William Darrah & Associates (1986, CA6 Mich) 796 F2d 190, 5 FR Serv 3d 393.

Factors controlling decision of Rule 55(c) motion also applied to Rule 60(b) motion. Re Levy (1987, BC SD Ohio) 75 BR 894.

While elements for relief under Rule 55(c) and Rule 60(b), Federal Rules of Civil Procedure are substantially same, standards are applied more stringently when considering motion to vacate default judgment under Rule 60(b). Chrysler Credit Corp. v Macino (1983, CA7 Ill) 710 F2d 363, 36 FR Serv 2d 1197.

District court's initial order granting "motion for default judgment" was properly treated as entry of default, pur -suant to rule, as to defendant who did not file answer until one day after court entered that order, so defendant was entitled to "good cause" standard for relief from entry of default, which was more lenient than standard for relief





























































from default judgment. Fed.Rules Civ.Proc.Rules 55(a-c), 60(b), 28 U.S.C.A. Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 40 Fed. R. Serv. 3d (LCP) 695 (8th Cir. 1998).

Once a default judgment has been entered, an aggrieved party must proceed under the rule that provides relief from judgment or order for mistakes, inadvertence, excusable neglect, newly discovered evidence, or fraud to have the judgment set aside, rather than under the rule for setting aside a default. Fed.Rules Civ.Proc.Rules 55(c), 60(b), 28 U.S.C.A. Katzir's Floor and Home Design, Inc. v. M-MLS.com, 394 F.3d 1143 (9th Cir. 2004).

Internal communications breakdown and lack of a system for shepherding complaints through proper litigation process did not afford good cause for setting aside default entered against corporate defendant, especially consider-ing that defendant received second chance to avoid default judgment, and that defendant failed to respond to com-plaint for approximately five months, a long delay which risked causing serious prejudice to plaintiffs's claims. Heaton v. Bonacker & Leigh, 173 F.R.D. 533, 38 Fed. R. Serv. 3d (LCP) 1398 (M.D. Ala. 1997).

"Good cause" standard for setting aside entry of default is less rigorous than "excusable neglect" standard for setting aside default judgment. Fed.Rules Civ.Proc.Rules 55(c), 60(b), 28 U.S.C.A. In re Justice, 330 B.R. 872 (Bankr. M.D. Ga. 2005).

When moving to set aside default and default judgment, defendant is not required to prove a defense, only that its allegations contain hint of suggestion which, proven at trial, would constitute complete defense. Gillespie v. Capitol Reprographics, LLC, 573 F. Supp. 2d 80 (D.D.C. 2008).

[Top of Section]

[END OF SUPPLEMENT]

§ 4. Discretion of court under Rule 55(c)


Synopsis

Whether there is good cause for granting relief under Rule 55(c) is a matter resting largely within the discretion of the trial court, although it is sometimes said that in situations of doubt such discretion should be exercised in favor of setting aside defaults so that cases may be decided on their merits.

It has been acknowledged in virtually every case discussed in this annotation, expressly or by necessary impli-cation, that the determination of whether a default should be set aside in application of the good cause standard of Rule 55(c) is a decision resting largely within the discretion of the trial court. The following decisions are illustrative of those in which this basic principle was stated.

It was observed by the court in Eisler v Stritzler (1968, DC Puerto Rico) 45 FRD 27, that whether or not good cause exists for the setting aside of an entry of default under Rule 55(c) is a matter lying within the sound discretion of the trial judge, such discretion to be exercised with due regard to the peculiar facts and circumstances surrounding each case.

The disposition of a motion under Rule 55(c) is a matter which lies largely within the discretion of the trial judge, observed the court in Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Corp. (1967, CA4 Va) 383 F2d 249, adding that in view of this situation the action of the trial judge will not lightly be disturbed on appeal.

And it was observed in Savarese v Edrick Transfer & Storage, Inc. (1975, CA9 Ariz) 513 F2d 140, that the grant or denial of a Rule 55(c) motion to set aside a default is a matter left largely to the discretion of the district court.

These and numerous other courts have subscribed to the principle of judicial discretion in general, unqualified terms. In the ensuing decisions, however, the courts expressed a proviso, recognizing that in situations of doubt, trial judges should exercise their discretion in favor of setting aside defaults so that cases may be decided on their merits.

Thus, stating that defaults are not favored by the law, the court in Securities & Exchange Com. v Vogel (1969,




























DC NY) 49 FRD 297, acknowledged that any doubt should accordingly be resolved in favor of exercising judicial discretion to set aside a default, so that a determination may be made on the merits of the case.

Observing that defaults are looked upon with disfavor, since the interests of justice are best served by a trial on the merits, the court in Hamilton v Edell (1975, DC Pa) 67 FRD 18, said that although Rule 55(c) vests a broad dis-cretion in the trial judge to open an entry of default, motions for such relief should nevertheless be considered liber-ally, with any doubts being resolved in favor of setting aside the default. To the identical effect are Alopari v O'Leary (1957, DC Pa) 154 F Supp 78; Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395; and Meyer v Lavelle (1974, DC Pa) 64 FRD 533, 29 ALR Fed 1.

Similarly, stating that the grant or denial of a motion to set aside an entry of default under Rule 55(c) will usu-ally involve an exercise of sound discretion by the trial judge, although at times the grounds put forward by the mov-ing party, if proved or admitted, may entitle him to relief as a matter of law, the court in A. C. Samford, Inc. v United States (1963, DC Ga) 226 F Supp 72, observed that in any event, where there are no intervening equities, any doubt should generally be resolved in favor of the moving party to the end of securing a trial on the merits. To the same effect is Rasmussen v W. E. Hutton & Co (1975, DC Ga) 68 FRD 231.

And it was observed by the court in Boyer v Wisconsin (1972, DC Wis) 55 FRD 90, that while a motion to set aside an entry of default under Rule 55(c) is addressed to the discretion of the trial court, any doubt should be re-solved in favor of opening defaults so that cases may be decided on their merits.


Cases:

While the three factors that are typically considered by courts in deciding whether to grant relief from default, consisting of the willfulness of default, prejudice to nonmoving party, and whether movant has meritorious defense, are important and should be considered, district court's failure to expressly consider them does not necessarily con-stitute abuse of discretion. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) KPS & Associates, Inc. v. Designs By FMC, Inc., 318 F.3d 1 (1st Cir. 2003).

Factors that a trial court should consider in determining whether good cause has been shown to remove default are: (1) whether the default was willful; (2) whether setting it aside would prejudice the adversary; (3) whether a meritorious defense is presented; (4) the nature of the defendant's explanation for the default; (5) the good faith of the parties; (6) the amount of money involved; (7) the timing of the motion to set aside entry of default. Fed.Rules Civ.Proc.Rule 55, 28 U.S.C.A.(c). Edes v. Fredson, 344 F. Supp. 2d 209 (D. Me. 2004).

See Brock v Unique Racquetball & Health Clubs, Inc. (1986, CA2 NY) 786 F2d 61, 27 BNA WH Cas 973, 4 FR Serv 3d 482, § 21[b].

While decision on motion to set aside entry of default is committed to discretion of district court, abuse of dis -cretion need not be glaring to justify reversal. Traguth v Zuck (1983, CA2 NY) 710 F2d 90, 36 FR Serv 2d 1189.

In determining whether "good cause" has been shown to vacate default, court considers: (1) whether the default was willful; (2) the potential prejudice to the adversary if the default were set aside; and (3) whether a meritorious defense has been presented. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.App.(2000 Ed.) Pall Corp. v. Entegris, Inc., 249 F.R.D. 48 (E.D. N.Y. 2008).

If judgment is in fact void, court does not have discretion in deciding whether to vacate default judgment. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b)(4) Hawthorne v. Citicorp Data Systems, Inc., 219 F.R.D. 47 (E.D. N.Y. 2003).

Factors court considers in determining whether there is "good cause" to vacate default include: (1) willfulness of default; (2) potential prejudice to adversary; (3) presentation of meritorious defense; (4) defaulting party's good faith; and (5) fairness of result. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) United Parcel Service of America v. Net, Inc., 185 F. Supp. 2d 274 (E.D. N.Y. 2002).

Under Rule 55(c), trial judge has discretion to determine whether good cause exists to vacate default judgment; in making determination judge should consider whether default was willful, whether defendant has meritorious de-fense, and whether setting default aside will prejudice plaintiff. Brown v De Filippis (1988, SD NY) 695 F Supp 1528.









































When exercising discretion in determining whether to set aside entry of default, district courts must consider whether: (1) the plaintiff will be prejudiced if the default is set aside; (2) the defendant has a meritorious defense; and (3) the default was a product of the defendant's culpable or inexcusable conduct. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Dizzley v. Friends Rehabilitation Program, Inc., 202 F.R.D. 146 (E.D. Pa. 2001).

Before removing default judgment, court, in its broad, sound discretion, must consider whether defendant al -leges meritorious defense, whether plaintiff is substantially prejudiced thereby, and whether defendant's failure to re-spond constitutes excusable neglect; this standard is construed liberally because default judgments are regarded with disfavor, and doubts are to be resolved in favor of removing default judgments because resolution on merits best serves justice. General Tire and Rubber Co. v Olympic Gardens, Inc. (1979, ED Pa) 85 FRD 66.

Vacation of default judgment for failure to comply with notice requirements of Federal Rule of Civil Procedure 55(b)(2), where defendant did not file formal entry of appearance, is matter for discretion of court under Rules 55(c) and 60(b). Collex, Inc. v Walsh (DC Pa) 74 FRD 443.

District court did not abuse its discretion in denying defendant's motion to set aside entry of default and entering default judgment against him. Meeks v. Friedman, 128 Fed. Appx. 316 (4th Cir. 2005).

See Currie v Wood (1986, ED NC) 112 FRD 408, 7 FR Serv 3d 972, § 6[c].

[Top of Section]

[END OF SUPPLEMENT]

§ 5[a] Interpretation of "good cause" concept as it relates to sufficiency of excuse for inaction—Generally


Synopsis

"Mistake," "inadvertence," "surprise," and especially "excusable neglect"—all specified grounds for relief from a default judgment under Rule 60(b)—have been regarded as reasons for inaction sufficient to satisfy the good cause standard of Rule 55(c). It has been acknowledged, moreover, that relief may be granted under Rule 55(c) even where the neglect giving rise to the default is not, strictly speaking, excusable. Such relief will be denied, however, where the default is characterized as "willful" or shown to have been caused by "gross neglect."

While decisions construing Rule 55(c) are largely sui generis, they reveal that certain basic explanations for in-action have commonly been regarded as adequate to establish good cause and warrant the opening of a default, pro -vided any other applicable requirements for relief are satisfied (§ 6[a]- 6[c], infra). In particular, a handy frame of reference employed by the courts in interpreting the good cause standard of Rule 55(c) has been the list of grounds for relief from a default or other final judgment which appears in Rule 60(b), notably clause (1) thereof specifying the grounds of "mistake, inadvertence, surprise, or excusable neglect." In the following cases, the courts recognized that a showing of some such Rule 60(b) ground will establish a satisfactory explanation for inaction under Rule 55(c), or they simply acknowledged without reference to Rule 60(b) that "excusable neglect" or the like will suffice for purposes of Rule 55(c).

Comment

Perhaps an additional reason for regarding "excusable neglect" as a good cause under Rule 55(c) is to be found in the fact that it is the standard governing relief under Rule 6(b) from failures to take action within specified time lim-its. Specifically, Rule 6(b) provides in pertinent part: "When by these rules or by a notice given thereunder or by or-der of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion. . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . ." In effect, any Rule 55(c) motion to set aside a de-





























fault entry includes an implicit request for a type of relief envisioned by Rule 6(b), namely, permission to file a late pleading; the opening of a default would be virtually meaningless if the defaulting party could not thereafter defend himself by filing such a pleading. Indeed, as indicated in § 2[b], supra, some courts have in effect set aside entries of default in application of Rule 6(b). Given this similarity in the type of relief involved, it would seem that Rule 55(c) good cause should include the concept of "excusable neglect," as used in Rule 6(b). It could be argued, moreover, that if good cause is a standard more liberal than excusable neglect, as is generally assumed, Rules 55(c) and 6(b) are inconsistent precisely because they contemplate essentially the same species of relief. In other words, why should the excusable neglect standard of Rule 6(b) generally govern permission to file a late answer, while relief from a default and consequent permission to file an answer thereafter is presumably governed by the broader good cause test of Rule 55(c)?First Circuit

Carignan v United States (1969, DC Mass) 48 FRD 323 (appearing to recognize that mistake or excusable neglect would be sufficient)

Bedard v Consolidated Mut. Ins. Co. (1970, DC Puerto Rico) 313 F Supp 1020 (excusable neglect suffi-cient)

Second Circuit Albert Levine Associates, Inc. v Kershner (1968, DC NY) 45 FRD 450 (excusable neglect sufficient)

Robinson v Bantam Books, Inc. (1970, DC NY) 49 FRD 139, infraThird Circuit

Teal v King Farms Co. (1955, DC Pa) 18 FRD 447 (Rule 60(b) "mistake, inadvertence, surprise, or excus-able neglect" sufficient)

Alopari v O'Leary (1957, DC Pa) 154 F Supp 78 (inadvertence or excusable neglect sufficient)

Nunn v Reina (1958, DC Pa) 21 FRD 573 (mistake sufficient)

Nicholson v Allied Chemical Corp. (1961, DC Pa) 200 F Supp 206 (excusable neglect sufficient)

Stuski v United States Lines Co. (1962, DC Pa) 31 FRD 188 (mistake or inadvertence sufficient)

Wagg v Hall (1967, DC Pa) 42 FRD 589 (recognizing sufficiency of excusable neglect or "any other reason justifying relief," as stated in Rule 60(b))

Titus v Smith (1970, DC Pa) 51 FRD 224 (appearing to recognize that excusable neglect would be suffi-cient)

Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395, infra

Medunic v Lederer (1974, DC Pa) 64 FRD 403 (Rule 60(b) "mistake, inadvertence, surprise, or excusable neglect" sufficient)

Hamilton v Edell (1975, DC Pa) 67 FRD 18 (excusable neglect sufficient)

Trachtman v T. M. S. Realty & Financial Services (1975, DC Pa) 393 F Supp 1342 (excusable neglect suf-ficient)

Fourth Circuit Ellington v Milne (1953, DC NC) 14 FRD 241 (Rule 60(b) "mistake, inadvertence, surprise, or excusable































neglect" sufficient)

Nelson v Coleman Co. (1966, DC SC) 41 FRD 7 (appearing to recognize that mistake, inadvertence, or ex-cusable neglect would be sufficient)

Davis v Carabo (1970, DC SC) 50 FRD 468 (inadvertence sufficient)Fifth Circuit

A. C. Samford, Inc. v United States (1963, DC Ga) 226 F Supp 72 (excusable neglect sufficient)

Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456 (excusable neglect sufficient)

Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231. (excusable neglect sufficient)Sixth Circuit

Rooks v American Brass Co. (1959, CA6 Mich) 263 F2d 166 (Rule 60(b) mistake, inadvertence, or excus-able neglect sufficient)

Seventh Circuit Boyer v Wisconsin (1972, DC Wis) 55 FRD 90 (inadvertence sufficient)

United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944 (Rule 60(b) inadvertence sufficient)

Ninth Circuit Provident Secur. Life Ins. Co. v Gorsuch (1963, CA9 Ariz) 323 F2d 839, cert den 376 US 950, 11 L Ed 2d 970, 84 S Ct 966 (Rule 60(b) excusable neglect sufficient)

Madsen v Bumb (1969, CA9 Cal) 419 F2d 4 (appearing to recognize that excusable neglect would be suffi-cient)

Savarese v Edrick Transfer & Storage, Inc. (1975, CA9 Ariz) 513 F2d 140 (appearing to recognize that Rule 60(b) excusable neglect would be sufficient)

Dist Col Circuit Barber v Turberville (1954) 94 App DC 335, 218 F2d 34 (Rule 60(b) excusable neglect sufficient)

Thus, it was expressly acknowledged in Robinson v Bantam Books, Inc (1970, DC NY) 49 FRD 139, that an entry of default may be set aside for good cause under Rule 55(c) if the moving party has a meritorious defense and the failure to file a timely answer is shown to have been the result of mere excusable neglect.

Similarly, it was said by the court in Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395, that a Rule 55(c) motion to set aside a default entry may be granted whenever it is found that the nondefaulting party will not be prejudiced thereby, that the defaulting party has a meritorious defense, and that the default itself was not attributable to inexcusable neglect.

Assuming that excusable neglect constitutes a reason for inaction sufficient to satisfy the good cause require-ment of Rule 55(c), the next logical question is whether the same result can be reached when less justification can be shown for the inaction. In the following decisions, the courts expressly recognized that Rule 55(c) relief may be ap-propriate even where the neglect or inadvertence giving rise to the default cannot strictly be characterized as "excus-able," at least as that term is used in Rule 60(b). It should be noted that this position is consistent with the view dis-cussed in § 3, supra, that good cause is a standard more liberal than any of the standards set forth in Rule 60(b).

Noting that a motion to set aside a default entry is governed by the first clause of Rule 55(c), providing that re-lief may be granted for good cause shown, the court in Teal v King Farms Co. (1955, DC Pa) 18 FRD 447, observed that the Federal Rules evidently draw a distinction between what is required to make a good case for setting aside a default entry and what is required to set aside a default judgment, relief in the latter situation being subject to the Rule 60(b) requirement of a showing of excusable mistake, inadvertence, surprise, or neglect. And expressing the



































opinion that there would be no reason for this distinction unless Rule 55(c) was intended to commit the matter of re-lief from a default entry entirely to judicial discretion, the court concluded that inadvertence may constitute good cause even if it is not strictly excusable.

Similarly, it was acknowledged in Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456, that when the question is whether to enter A default judgment rather than vacate an existing default judgment, so that the good cause standard of Rule 55(c) is applicable, it is not absolutely necessary that the neglect or oversight offered as a reason for the delay in filing a responsive pleading be excusable.

When the question is whether to set aside a default under Rule 55(c), rather than vacate a default judgment pur-suant to Rule 60(b), said the court in Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231, it is not always necessary that the neglect or oversight causing the default be excusable.

And recognizing that only excusable inadvertence will justify the opening of a default judgment under Rule 60(b), the court in United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944, indicated that in view of the less stringent standards applied under Rule 55(c), an entry of default may well be set aside upon a show-ing of mere culpable inadvertence.

In several other decisions, moreover, the courts appeared to entertain views of even greater liberality, suggest-ing that little if any justification for inaction need be shown in order to warrant relief under Rule 55(c).

Thus, without indicating whether any actual excuse must be offered in explanation of the inaction resulting in the default, the court in Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Corp. (1967, CA4 Va) 383 F2d 249, observed that "generally a default should be set aside where the moving party acts with reasonable prompt-ness and alleges a meritorious defense."

Similarly, in Davis v Carabo (1970, DC SC) 50 FRD 468, the court acknowledged that since the philosophy of modern federal procedure favors trials on the merits, an entry of default should generally be set aside under Rule 55(c) where the moving party acts with reasonable promptness, a meritorious defense is alleged, and the default it-self has merely not been "willful."

And observing simply that "a trial on the merits is much to be preferred to a default," the court in Mitchell v Eaves (1959, DC Tenn) 24 FRD 434, proceeded to set aside a default entry under Rule 55(c), even though acknowl-edging that the no satisfactory explanation had been offered for the defendant's failure to answer.

It seems to be generally acknowledged that good cause is not a limitless standard, and that there is accordingly some point beyond which relief should not be granted under Rule 55(c). While the decisions usually do not define this outer limit, the courts in the following cases expressly recognized that certain reasons for inaction will definitely not justify a finding of good cause.First Circuit

Bedard v Consolidated Mut. Ins. Co. (1970, DC Puerto Rico) 313 F Supp 1020 ("intentional lack of dili-gence" or "gross negligence")

Second Circuit Securities & Exchange Com. v Vogel (1969, DC NY) 49 FRD 297 (gross neglect)

Third Circuit Alopari v O'Leary (1957, DC Pa) 154 F Supp 78 (gross neglect)

Stuski v United States Lines Co. (1962, DC Pa) 31 FRD 188 (gross neglect)

Kulakowich v A/S Borgestad (1964, DC Pa) 36 FRD 185 (gross neglect)

Titus v Smith (1970, DC Pa) 51 FRD 224 (gross neglect)

Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395 ("a willful act")

Medunic v Lederer (1974, DC Pa) 64 FRD 403 (gross negligence)

Hamilton v Edell (1975, DC Pa) 67 FRD 18 ("a willful act")

































Trachtman v T. M. S. Realty & Financial Services (1975, DC Pa) 393 F Supp 1342, infraFourth Circuit

Davis v Carabo (1970, DC SC) 50 FRD 468 ("willful" default)Fifth Circuit

Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231 (default resulting from "willfulness")Dist Col Circuit

Draisner v Liss Realty Co. (1954) 94 App DC 53, 211 F2d 808, cert den 348 US 877, 99 L Ed 690, 75 S Ct 115, infra

Thus, it was said in Trachtman v T. M. S. Realty & Financial Services (1975, DC Pa) 393 F Supp 1342, that a motion to set aside an entry of default will not be granted under Rule 55(c) if the court finds that the default itself was the result of "gross negligence or a willful act."

And it was acknowledged by the court in Draisner v Liss Realty Co. (1954) 94 App DC 53, 211 F2d 808, cert den 348 US 877, 99 L Ed 690, 75 S Ct 115, that the good cause required by Rule 55(c) for the opening of an entry of default does not exist where the default has been "willful and intentional."


Cases:

Good cause standard applicable to setting aside an entry of default is a liberal one. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. U.S. v. $23,000 in U.S. Currency, 356 F.3d 157 (1st Cir. 2004).

While district court, in deciding whether to grant motion for relief from default, should consider willfulness of default, prejudice to nonmoving party, and whether movant has meritorious defense, these factors are not talismanic, and court may consider others. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) KPS & Associates, Inc. v. Designs By FMC, Inc., 318 F.3d 1 (1st Cir. 2003).

See Maine Nat. Bank v F/V Cecily B (1987, DC Me) 116 FRD 66, § 6[d].In action for negligence based on incident of kidnap, rape, and robbery in parking lot, default would be set aside

where there existed meritorious defense and plaintiffs had suffered no prejudice, where there was no indication that defendants acted in bad faith in delaying filing of their answer to plaintiffs' complaint, where case was significant and involved large damage claim, and where defendants acted very quickly to attempt to remedy their delay in re -sponding. Phillips v Weiner (1984, DC Me) 103 FRD 177, 40 FR Serv 2d 689.

Among the factors that a court may consider in assessing good cause to set aside an entry of default judgment are whether: (1) the default was wilful, (2) a set-aside would prejudice plaintiff, (3) a meritorious defense is pre -sented, (4) the nature of the defendant's explanation for the default, (5) the good faith of the parties, (6) the amount of money involved, and (7) the timing of the motion. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Rodriguez Fer-nandez v. Urban Transit Solutions, Inc., 230 F.R.D. 273 (D.P.R. 2005), reconsideration denied, (July 26, 2005).

In deciding whether to set aside entry of default, district court should analyze whether default was willful, whether moving party has presented meritorious defense, and whether setting aside default would prejudice party who secured entry of default. Marziliano v. Heckler, 728 F.2d 151, 4 Soc. Sec. Rep. Serv. 170, Unempl. Ins. Rep. (CCH) ¶15153 (2d Cir. 1984).

Factors court considers when determining whether "good cause" exists to relieve party from entry of default are: (1) whether default was willful; (2) whether setting aside of default would prejudice adversary; (3) whether meritori-ous defense is presented; and (4) any other relevant equitable factors. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Argus Research Group, Inc. v. Argus Securities, Inc., 204 F. Supp. 2d 529 (E.D. N.Y. 2002).

For purpose of determining whether good cause existed to vacate default of county social services department and county caseworker in prisoner's § 1983 action against them asserting claims relating to communications with his son and to visitation and custody proceedings, the default was not willful where it resulted from miscommunication within county attorney's office. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Springs v. Clement, 202 F.R.D. 387 (E.D.N.Y. 2001).

Three principal factors apply in assessing whether "good cause" has been shown to justify setting aside entry of

































default judgment: (1) whether default was willful; (2) whether setting aside clerk's entry of default would prejudice adversary; and (3) whether meritorious defense is presented; other relevant equitable factors may also be considered, for instance, whether failure to follow rule of procedure was mistake made in good faith and whether entry of de -fault would produce harsh or unfair result. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Niepoth v. Montgomery County Dist. Attorney's Office, 177 F.R.D. 111 (N.D.N.Y. 1998).

"Good cause" requirement of FRCP 55(c) and criteria of FRCP 60(b) should be construed broadly. Canfield v VSH Restaurant Corp. (1995, ND NY) 162 FRD 431.

See Brown v De Filippis (1988, SD NY) 695 F Supp 1528, § 4.In determining whether to vacate an entry of default, the district court must consider: (1) whether the default

was willful; (2) whether setting aside the default judgment would prejudice the adversary; and (3) whether a merito-rious defense is presented. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Tesillo v. Emergency Physician Associates, Inc., 230 F.R.D. 287 (W.D. N.Y. 2005).

On motion to set aside default under Rule 55(c) District Court may consider defendant's culpability in allowing default and material bad faith conduct by defendant subsequent to entry of default which may justify court's refusal to set aside default. Farnese v Bagnasco (1982, CA3 Pa) 687 F2d 761.

In determining whether there is good cause to strike entry of default, court considers whether plaintiff will be prejudiced, whether default was result of defendant's culpable conduct, whether defendant has meritorious defense, and effectiveness of alternative sanction. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Jackson v. Delaware County, 211 F.R.D. 282 (E.D. Pa. 2002).

In determining whether good cause exists for vacating default, court must consider whether failure to answer was excusable, whether setting aside of default would prejudice plaintiffs, and whether defendant has asserted meri -torious defense to claim. Lasky v Continental Products Corp. (1983, ED Pa) 97 FRD 716, 36 FR Serv 2d 1134, com-panion case (ED Pa) 97 FRD 717, motion den (ED Pa) 569 F Supp 1225, later proceeding (ED Pa) 569 F Supp 1227, 38 FR Serv 2d 1524, later proceeding (ED Pa) 38 FR Serv 2d 1032.

Good cause, for purposes of setting aside entry of default, is shown when movant acts with reasonable prompt -ness to have default set aside and alleges meritorious defense. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Willis v. MCI Telecommunications, 177 F.R.D. 350 (E.D.N.C. 1998).

Physician was entitled to have set aside default judgment entered against him in prisoner's civil rights action, where physician did not intentionally fail to answer, he had a meritorious defense, and there was no prejudice to prisoner. 42 U.S.C.A. § 1983; Fed.Rules Civ.Proc.Rules 55(c), 60(b), 28 U.S.C.A. Ware v. Zeller, 214 Fed. Appx. 363 (5th Cir. 2006).

See Re Dierschke (1992, CA5 Tex) 975 F2d 181, § 13[b].When a defendant seeks relief from an entry of default, three equitable factors are considered to determine if

"good cause" has been shown: (1) whether culpable conduct of the defendant led to the default, (2) whether the de -fendant has a meritorious defense, and (3) whether the plaintiff will be prejudiced. Fed.Rules Civ.Proc.Rules 55(c), 60(b), 28 U.S.C.A. Burrell v. Henderson, 434 F.3d 826, 97 Fair Empl. Prac. Cas. (BNA) 281, 2006 FED App. 0013P (6th Cir. 2006).

In determining whether good cause to set aside entry of default exists, courts are required to weigh three factors: whether plaintiff will be prejudiced from reopening the case, whether defendant has a meritorious defense, and whether culpable conduct of defendant led to default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Bowens v. Af-termath Entertainment, 254 F. Supp. 2d 629 (E.D. Mich. 2003).

Unless the party seeking relief from a default judgment can demonstrate that his or her other conduct resulted from inadvertence, surprise, or excusable neglect without culpability, the court need not consider the evidence, if any, showing a lack of prejudice to the nonmoving party or the presence of a meritorious defense. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Simmons v. Ohio Civil Service Emp. Assoc., 259 F. Supp. 2d 677 (S.D. Ohio 2003).

Criteria to be considered in determining whether good cause exists to set aside a default are: (1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; and whether culpable conduct of the defendant led to the default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Simmons v. Ohio Civil Service Emp. Assoc., 210 F.R.D. 207 (S.D. Ohio 2002).

When a district court determines whether to grant a motion to vacate an entry of default, a balancing of three factors is required: (1) whether the plaintiff will be prejudiced by vacating an entry of default; (2) whether the defen-

















































dant has any meritorious defenses; and, (3) whether culpable conduct of the defendant led to the default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Victoria's Secret Stores v. Artco Equipment Co., Inc., 194 F. Supp. 2d 704 (S.D. Ohio 2002).

Showing of excusable neglect can establish good cause for default, for purpose of setting aside default judg-ment. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Medline Industries, Inc. v. Medline Rx Financial, LLC, 218 F.R.D. 170 (N.D. Ill. 2003).

To set aside default judgment, party must show good cause, and finding of good cause depends upon whether default was willful. Thus, in adversary proceeding in bankruptcy, court denied debtors' motion to vacate default judgment for creditors where debtors failed to show that default was not willful. Re Greaves (1990, ND Ill) 121 BR 234.

To vacate an entry of default, moving party must show: (1) good cause for default; (2) quick action to correct it; and (3) meritorious defense to plaintiff's complaint. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Bluegrass Marine Inc. v. Galena Road Gravel, Inc., 211 F.R.D. 356 (S.D. Ill. 2002).

Court, pursuant to Rule 55, would set aside entry of default "for good cause shown" where court found that it had apparent lack of personal jurisdiction over defendant. Jones v Davey (1988, ED Mo) 702 F Supp 752.

One of principal factors bearing on appropriateness of relieving party of default is whether default was willful; default may be deemed nonwillful where (1) actual return of service was filed on day when plaintiff moved for entry of default, and review of court file would therefore not have given defendants notice that they were in default, (2) there is no suggestion that defendant's counsel's mistaken belief as to date of service was anything but honest, good faith belief, and (3) plaintiff points to no fact, of which defendant's counsel had knowledge, that would have given defendant's counsel reason to suspect error, and (4) defendants acted promptly upon discovering that they were in default. 999 v Cox & Co. (1983, ED Mo) 574 F Supp 1026.

Trial court's order setting aside entry of default is not abuse of discretion, where there is no evidence that de -fault was willful, application for relief was brought on timely basis, and plaintiff was in no way prejudiced by entry of default. Kornblum v Millstone (1983, CA9 Cal) 38 FR Serv 2d 174.

Where the default was the result of the defendant's culpable conduct, the district court may refuse to set aside the default on that basis alone. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Crutcher v. Coleman, 205 F.R.D. 581 (D. Kan. 2001).

Four factors that courts in the Eleventh Circuit consider when seeking the "good cause" necessary to open a de -fault include consideration of (1) promptness of the defaulting party's action to vacate the default, (2) plausibility of the defaulting party's excuse for the default, (3) merit of any defense the defaulting party might wish to present in re-sponse to the underlying action, and (4) any prejudice the party not in default might suffer if the default is opened. Fed. Rules Bankr. Proc. Rule 7055, 11 U.S.C.A.; Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. In re Jawish, 260 B.R. 564 (Bankr. M.D. Ga. 2000).

Court abused its discretion in refusing to set aside entry of default against defendant who was not represented by attorney where plaintiff's counsel told defendant that default would not be sought until future date, where no prej-udice to plaintiff was shown, and where defendant alleged meritorious defense. Keegel v Key West & Caribbean Trading Co. (1980, App DC) 627 F2d 372.

To demonstrate good cause on a motion to set aside entry of default, the court should consider three criteria, re -solving all doubts in favor of the party seeking relief from the default: (1) whether the default was willful; (2) whether a set-aside would prejudice plaintiff; and (3) whether the defendant has presented a meritorious defense. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Capital Yacht Club v. Vessel AVIVA, 228 F.R.D. 389 (D.D.C. 2005).

The factors to be considered in the determination of whether to set aside a default judgment are whether: (1) the default was willful; (2) the alleged defense was meritorious; and (3) a set-aside would prejudice plaintiff. Fed.Rules Civ.Proc.Rule 60(b)(1), 28 U.S.C.A. Whittaker v. District of Columbia, 228 F.R.D. 378 (D.D.C. 2005).

[Top of Section]

[END OF SUPPLEMENT]

§ 5[b] Interpretation of "good cause" concept as it relates to sufficiency of excuse for inaction—Relaxation of












http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000611&DocName=USFRBPR7055&FindType=L




















standards where inaction is attributable to attorney rather than party personally

While relief has frequently been denied under the good cause standard of Rule 55(c) even though it appeared that the defaulting party was not personally responsible for the failure to plead or otherwise defend, the mistake or neglect inducing such inaction being that of his attorney, a perusal of the cases discussed throughout this annotation suggests that the courts have shown a somewhat greater tendency to set aside defaults in this situation than in the sit -uation where the defaulting party is personally at fault. The existence of such a tendency has rarely been expressly recognized, but the courts in the following decisions did make specific pronouncements in acknowledgement thereof.

In contrast, compare Canup v Mississippi Valley Barge Line Co. (1962, DC Pa) 31 FRD 282, where the court refused to relieve a defendant of a default caused by the inadvertence of his attorney precisely because the firm to which defense counsel belonged had persistently failed to file pleadings and briefs on time in past cases before the court.

Thus, indicating that Rule 55(c) should be given a liberal interpretation, especially where the defaulting party has not been personally negligent in the protection of his interests, the court in A. C. Samford, Inc. v United States (1963, DC Ga) 226 F Supp 72, noted that in such situations, the courts have been reluctant to attribute to parties the errors of their legal representatives. Relief was accordingly granted to a defendant whose failure to file a timely an -swer was attributable to his counsel's mistaken reliance upon an erroneous answer period specified in the summons, the court stating that the defendant had been diligent in referring the case to the attorney and should not be penalized for the attorney's failure to disregard the language of the summons.

Similarly, in setting aside a default entry at the request of a defendant whose attorney had inadvertently failed to file a timely answer, the court in Barber v Turberville (1954) 94 App DC 335, 218 F2d 34, emphasized that the de-fendant had not been personally negligent in the protection of her interests, and said that in such situations the courts have displayed a reluctance to attribute to parties the errors of their legal representatives.

§ 6[a] Other considerations affecting relief under Rule 55(c)—Existence of meritorious defense


Synopsis

Apart from offering a sufficient excuse for allowing the default to occur, a party seeking relief under the good cause standard of Rule 55(c) will normally be required to show that he has a meritorious defense to the claim against him. A mere conclusory statement that such a defense exists will generally be regarded as insufficient for this purpose.

Since the opening of a default would represent a fruitless gesture if it could not conceivably affect the outcome of the suit, it has generally been recognized that relief should not be afforded under Rule 55(c) unless the defaulting party makes some showing indicating that he has a meritorious defense to the claim against him. The following deci-sions contain express statements to this effect.First Circuit

Carignan v United States (1969, DC Mass) 48 FRD 323

Kingvision Pay-Per-View Ltd. v. Niles, 150 F. Supp. 2d 188 (D. Me. 2001)Second Circuit

Securities & Exchange Com. v Vogel (1969, DC NY) 49 FRD 297

Robinson v Bantam Books, Inc. (1970, DC NY) 49 FRD 139Third Circuit

Wokan v Alladin International, Inc. (1973, CA3 Pa) 485 F2d 1232

Stuski v United States Lines Co. (1962, DC Pa) 31 FRD 188

















Kulakowich v A/S Borgestad (1964, DC Pa) 36 FRD 185

Wagg v Hall (1967, DC Pa) 42 FRD 589

Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395

Phillips v Flynn (1974, DC Pa) 61 FRD 574

Meyer v Lavelle (1974, DC Pa) 64 FRD 533, 29 ALR Fed 1; Dascenzo v Blain (1974, DC Pa) 19 Fed Rules Serv 2d 384

Hamilton v Edell (1975, DC Pa) 67 FRD 18

Trachtman v T. M. S. Realty & Financial Services (1975, DC Pa) 393 F Supp 1342Fourth Circuit

Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Corp. (1967, CA4 Va) 383 F2d 249

Nelson v Coleman Co. (1966, DC SC) 41 FRD 7

Davis v Carabo (1970, DC SC) 50 FRD 468

Moran v Mitchell (1973, DC Va) 354 F Supp 86Fifth Circuit

McCloskey & Co. v Eckart (1947, CA5 Fla) 164 F2d 257

Dalminter, Inc. v Jessie Edwards, Inc. (1961, DC Tex) 27 FRD 491

Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231Seventh Circuit

United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944Eighth Circuit

Bruce v Paxton (1962, DC Ark) 31 FRD 197Ninth Circuit

Madsen v Bumb (1969, CA9 Cal) 419 F2d 4

Thus, it was said in Robinson v Bantam Books, Inc. (1970, DC NY) 49 FRD 139, that an entry of default can be set aside under Rule 55(c) only if the defendant has a meritorious defense.

Similarly, it was observed by the court in Trachtman v T. M. S. Realty & Financial Services (1975, DC Pa) 393 F Supp 1342, that a Rule 55(c) motion to set aside an entry of default will generally not be granted unless the de-faulting party can show, inter alia, that he has a meritorious defense to the action.

It was stated in Nelson v Coleman Co. (1966, DC SC) 41 FRD 7, that in order to be entitled to relief under Rule 55(c), the party in default must show, inter alia, that he has a meritorious defense to the claim against him.

It was observed in United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944, that an ab-solutely essential requirement for relief from a default entry under Rule 55(c) is that the defendant claim a meritori-ous defense with specificity.

And it was said by the court in Bruce v Paxton (1962, DC Ark) 31 FRD 197, that a defendant's entitlement to relief under Rule 55(c) ordinarily requires, but is not limited to, a showing that he has a meritorious defense.

Additionally, attention is directed to the following cases wherein the courts, without expressly stating that a



































party seeking relief under Rule 55(c) must show a meritorious defense, relied at least in part upon the fact that such a showing had been made in deciding to grant relief.First Circuit


Sonus Corp. v Matsushita Electrical Industrial Co. (1974, DC Mass) 61 FRD 644Second Circuit

Albert Levine Associates, Inc. v Kershner (1968, DC NY) 45 FRD 450Third Circuit

Hutton v Fisher (1966, CA3 Pa) 359 F2d 913

Elias v Pitucci (1952, DC Pa) 13 FRD 13

Alopari v O'Leary (1957, DC Pa) 154 F Supp 78

Nunn v Reina (1958, DC Pa) 21 FRD 573, infra

Nicholson v Allied Chemical Corp. (1961, DC Pa) 200 F Supp 206Fourth Circuit

Huntington Cab Co. v American Fidelity & Casualty Co. (1945, DC W Va) 4 FRD 496

Ellington v Milne (1953, DC NC) 14 FRD 241Fifth Circuit

A. C. Samford, Inc. v United States (1963, DC Ga) 226 F Supp 72

Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456Sixth Circuit

Rooks v American Brass Co. (1959, CA6 Mich) 263 F2d 166Ninth Circuit

Provident Secur. Life Ins. Co. v Gorsuch (1963, CA9 Ariz) 323 F2d 839, cert den 376 US 950, 11 L Ed 2d 970, 84 S Ct 966

Dist Col Circuit Barber v Turberville (1954) 94 App DC 335, 218 F2d 34

Illustrative of such decisions is Nunn v Reina (1958, DC Pa) 21 FRD 573, where the court concluded that there was good cause for setting aside an entry of default under Rule 55(c), precisely because the defendant's failure to an-swer was attributable to a mere mistake of his counsel, prompt action had been taken to cure the default, and a meri -torious defense to the action had been asserted.

Among those courts acknowledging that relief should not be granted under Rule 55(c) in the absence of some showing of a meritorious defense, few have addressed themselves to the precise question of what type of showing will satisfy this requirement. Where the issue has been discussed, however, it has generally been recognized that a mere conclusory statement that a meritorious defense exists is insufficient for this purpose.

Comment

A wider range of views appears to be entertained by the courts in cases involving relief from default judgments un -der Rule 60(b), where the requirements of a showing of some meritorious defense likewise prevails. As noted in Trueblood v Grayson Shops of Tennessee, Inc. (1963, DC Va) 32 FRD 190, courts interpreting Rule 60(b) follow three general standards relative to what satisfies this requirement: (1) some courts have insisted upon a specific recitation of facts which, if proven, would establish a meritorious defense; (2) others have been satisfied by mere al -legations or conclusory statements that a meritorious defense exists, or have accepted even bare denials in the de -


























faulting party's motion or supporting affidavit; and (3) a few courts have seemed to rely solely upon an oral state-ment to this effect, or have appeared to grant relief on the basis of their own assumption that a meritorious defense existed.

Thus, it was indicated in Securities & Exchange Com. v Vogel (1969, DC NY) 49 FRD 297, that an entry of de-fault should not be set aside pursuant to Rule 55(c) unless the defendant, in addition to claiming the existence of a meritorious defense, presents a factual basis for this claim.

Similarly, observing that an entry of default can be set aside under Rule 55(c) only if the defendant has a meri-torious defense, the court in Robinson v Bantam Books, Inc. (1970, DC NY) 49 FRD 139, added that a mere conclu-sory statement by the defendant that he has a meritorious defense will not suffice in this respect, it being necessary that he state underlying facts in support of such a claim.

It was acknowledged in Wagg v Hall (1967, DC Pa) 42 FRD 589, that before granting a motion for relief under the good cause standard of Rule 55(c), the court should require either a specific recitation of facts supporting the claim of a meritorious defense, or at least a "credible allegation that such a defense exists."

And see Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Co. (1967, CA4 Va) 383 F2d 249, where the court denied a Rule 55(c) motion to set aside a default entry, emphasizing, inter alia, that the defendant had done nothing more than allege in a conclusory fashion that a meritorious defense existed. Although acknowledg-ing that some cases might conceivably be interpreted to lend implicit support to the proposition urged by the defen-dant, namely, that he was required to do no more than simply assert that he had a meritorious defense, the court pointed out that the trial judge in the instant case had called upon the defendant to state underlying facts in support of the meritorious defense claim. It was held that the trial judge had not abused his discretion in requiring such a showing.

Similarly, the view was expressed in Nelson v Coleman Co. (1966, DC SC) 41 FRD 7, that on a Rule 55(c) mo-tion, a mere statement that a meritorious defense exists is insufficient, since the party in default must show the court what defense he has to the action which he would be prevented from asserting.

But compare Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231, where the court held that a defen-dant's mere allegation that he had a meritorious defense to the action was not so "insubstantial" as to preclude the setting aside of a default entry under Rule 55(c). In connection with this determination, the court deemed it notewor-thy that some courts have not appeared to require elaboration on the facts underlying a meritorious defense, a mere allegation of the defense being sufficient.

It was stated by the court in United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944, that since an absolutely essential requirement for relief from a default entry under Rule 55(c) is that the defendant claim a meritorious defense with specificity, a conclusory statement that such a defense exists is not sufficient.

In Madsen v Bumb (1969, CA9 Cal) 419 F2d 4, it was concluded that a defendant had not made the requisite showing of a meritorious defense to support his Rule 55(c) motion for relief from a default entry, since a proposed answer tendered along with the motion stated a mere general denial without facts substantiating it, and a "defense" asserted in an accompanying affidavit was in the nature of a counterclaim having no relation to the facts charged against him in the complaint.

Also holding or recognizing that relief should not be afforded under Rule 55(c) unless defaulting party makes some showing indicating that he has meritorious defense to claim against him:First Circuit

Federal Deposit Ins. Corp. v Francisco Invest. Corp. (1989, CA1 Puerto Rico) 873 F2d 474, 13 FR Serv 3d 984

Second Circuit Marziliano v. Heckler, 728 F.2d 151, 4 Soc. Sec. Rep. Serv. 170, Unempl. Ins. Rep. (CCH) ¶15153 (2d Cir. 1984)

United States v Tomasello (1983, WD NY) 569 F Supp 1, 83-1 USTC ¶9413

Fariello v Rodriguez (1993, ED NY) 148 FRD 670

Westmark Development Corp. v. Century Sur. Co., 199 F.R.D. 491 (W.D.N.Y. 2001)



























Nationwide Mutual Fire Ins. Co. v. Rankin, 199 F.R.D. 498 (W.D.N.Y. 2001)

Aberson v Glassman (DC NY) 70 FRD 683

Williams v Ward (DC NY) 416 F Supp 1123, revd on other grounds (CA2 NY) 556 F2d 1143, cert dismd 434 US 944, 54 L. Ed. 2d 323, 98 S Ct 469

Lawrence v Willow Point on the Bay (In re Interco Sys.) (1995, BC WD NY) 185 BR 447, 27 BCD 911, 32 FR Serv 3d 1073

Third Circuit Bell Tel. Laboratories, Inc. v Hughes Aircraft Co. (DC Del) 73 FRD 16

Sixth Circuit Golden v National Finance Adjusters (1982, ED Mich) 555 F Supp 42, 1983-1 CCH Trade Cases ¶65323

Mercer v Jaffee, Snider, Raitt & Heuer, P.C. (1990, WD Mich) 730 F Supp 74

Hale v McCall (DC Tenn) 425 F Supp 396Seventh Circuit

New Field International Sales, Inc. v Salem (1986, ND Ill) 116 FRD 215, 6 FR Serv 3d 1352Ninth Circuit

Tri-Continental Leasing Corp. v Zimmerman (1980, ND Cal) 485 F Supp 495

Walter E. Heller Western, Inc. v Seaport Enterprises, Inc. (1983, DC Or) 99 FRD 36, 36 FR Serv 2d 1059

Cross v Fong Eu (DC Cal) 430 F Supp 1036Eleventh Circuit

In re Jawish, 260 B.R. 564 (Bankr. M.D. Ga. 2000)


Cases:

Relevant factors a court considers in determining whether there is good cause to set aside an entry of default are whether: (1) the default was willful; (2) a set–aside would prejudice plaintiff; and (3) the alleged defense was meri-torious. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. U.S. v. $23,000 in U.S. Currency, 356 F.3d 157 (1st Cir. 2004).


In determining whether to set aside default decree, trial court should consider whether default was willful, whether setting it aside would prejudice adversary, and whether meritorious defense is presented. Thus, in civil ac-tion, trial court erred in refusing to set aside default where inference of defendant's willfulness was not supportable, reviewing court was at loss to deduce how any prejudice might exist, and defendant did file in trial court separate af-fidavit of meritorious defense. Coon v Grenier (1989, CA1 RI) 867 F2d 73, 13 FR Serv 3d 96.

In action by disappointed bidder to enjoin Army from proceeding with pistol procurement program, trial court properly exercised discretion in setting aside default judgment against Army for failure to plead or otherwise defend since trial court found existence of good cause inasmuch as action had been juggled among three federal courts and


























Army had shown existence of meritorious defense. Smith & Wesson, Div. of Bangor Punta Corp. v United States (1986, CA1 Mass) 782 F2d 1074, 33 CCF ¶74233, 19 Fed Rules Evid Serv 1500.

See Kryzak v Dresser Industries (1987, DC Me) 118 FRD 12, § 13[a].See Maine Nat. Bank v F/V Cecily B (1987, DC Me) 116 FRD 66, § 6[d].Although case was monetarily significant and plaintiff would suffer little prejudice if default judgment for

plaintiff were set aside, default judgment would be granted where defendant did not plead meritorious defense of fraudulent misrepresentation, defendant's good faith was called into question when defendant missed another dead-line by failing to file timely amended affirmative defense, defendant did not expedite filing of motion to set aside default judgment, and defendant exhibited casual attitude toward court deadlines from outset of litigation. Grover v Commercial Ins. Co. (1985, DC Me) 108 FRD 366.

See Wayland v District Court, Biddeford (1985, DC Me) 104 FRD 91, § 9.Among the factors that a court may consider in assessing good cause to set aside an entry of default judgment

are whether: (1) the default was wilful, (2) a set-aside would prejudice plaintiff, (3) a meritorious defense is pre -sented, (4) the nature of the defendant's explanation for the default, (5) the good faith of the parties, (6) the amount of money involved, and (7) the timing of the motion. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Rodriguez Fer-nandez v. Urban Transit Solutions, Inc., 230 F.R.D. 273 (D.P.R. 2005), reconsideration denied, (July 26, 2005).

Defaults should generally be set aside when it has not been willful and moving party acts with reasonable promptness and alleges meritorious defense to action. Vega Matta v Alvarez De Choudens (DC Puerto Rico) 440 F Supp 246, affd without op (CA1 Puerto Rico) 577 F2d 722.

See United States v One Parcel of Real Property with Bldgs., Appurtenances, & Improv., etc. (1988, DC RI) 682 F Supp 694, § 13[a].

Under Rule 55(c), factors governing whether party should be relieved from default are whether default was willful, whether setting it aside would prejudice adversary, and whether meritorious defense is presented. Re Men's Sportswear, Inc. (1987, CA2 NY) 834 F2d 1134, CCH Bankr L Rptr ¶72126.

In action by United States Government to recover housing assistance payment from landlord and tenant on ground that landlord had occupied housing unit for which he had received housing assistance, landlord and tenant would be permitted to set aside default judgment where Government would have ample opportunity to prove its case, meritorious defense might be present when landlord had one witness who was willing to testify that landlord had not lived at property in question, and there was no showing that default was willful when landlord and tenant es-tablished that default occurred due to inability to secure counsel. United States v Thornton (1986, DC Conn) 113 FRD 499.

Despite any meritoriousness of anticipated defense, default judgment should not be vacated if default was will -ful. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Hernandez v. La Cazuela de Mari Restaurant, Inc., 538 F. Supp. 2d 528 (E.D. N.Y. 2007).

In determining whether to vacate entry of default, court considers: (1) whether default was willful, (2) whether setting aside default would prejudice the adversary, and (3) whether a meritorious defense is presented. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Harriman v. I.R.S., 233 F. Supp. 2d 451, 90 A.F.T.R.2d 2002-7407 (E.D. N.Y. 2002).

Defendant, claiming meritorious defense warranting vacation of default, need not establish that it will prevail on its defense; rather, defendant need only present some evidence to support its defense. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Argus Research Group, Inc. v. Argus Securities, Inc., 204 F. Supp. 2d 529 (E.D. N.Y. 2002).

In determining whether there is "good cause" to vacate a default, the court focuses on the wilfulness of the de -fault, the potential prejudice to the adversary, and the presentation of a meritorious defense; other equitable factors that may be considered include whether the failure to follow a rule of procedure was a mistake made in good faith, and whether the entry of default would bring about an unfair result. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Springs v. Clement, 202 F.R.D. 387 (E.D.N.Y. 2001).

Defense is "meritorious," supporting vacatur of entry of default, if it is good at law so as to give fact finder some determination to make. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Niepoth v. Montgomery County Dist. Attorney's Office, 177 F.R.D. 111 (N.D.N.Y. 1998).

Failure to establish a meritorious defense is sufficient to deny a motion to vacate a default judgment. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.App.(2000 Ed.) Fashion Shop LLC v. Virtual Sales Group Corp., 525 F. Supp. 2d 436 (S.D. N.Y. 2007).










































Under Rule 55(c) court may set aside entry of default for "good cause shown," with its discretion guided by whether default was willful, whether setting it aside would prejudice adversary, and whether meritorious defense was presented. Thus, in slander action, court set aside default entry where "good cause" warranted it; although de -fendant attorney's conduct suggested willfulness, delay alone did not establish prejudice, defendant presented meri-torious defense, and strong policies favored resolution of disputes on merits. Grant v New York (1992, SD NY) 145 FRD 325.

See Fine Shoe Co. v Buckray, Inc. (1990, SD NY) 131 FRD 58, § 20.In action by United States Securities and Exchange Commission (SEC), seeking to exact penalties and recover

profits derived from alleged insider trading scheme, court would deny defendant's motion to set aside default judg-ment since defendant had to show—but failed to show—that he had meritorious defense, that default was not will -ful, and that no prejudice to adversary would result from setting default aside; defendant's conduct indicated that he not only lacked meritorious defense, but that he also disregarded authority of court, and that he strove to unjustly prejudice SEC's chances of recovery. United States SEC v Wang (1988, SD NY) 699 F Supp 44.

Under Rule 55(c), absolute criterion to setting aside default judgment is that defendant claim with specificity meritorious defense. Thus, in action under Employee Retirement Income Security Act, 29 U.S.C.A. §§ 1001 et seq., court would deny defendant's motion to set aside default judgment since defendant was unable to allege meritorious defense. ILGWU Nat. Retirement Fund v Empire State Mills Corp. (1988, SD NY) 696 F Supp 885.

See Brown v De Filippis (1988, SD NY) 695 F Supp 1528, § 4.Where default of defendant might not have been willful due to period of political and labor unrest in Bolivia;

defendant demonstrated existence of possible defense of lack of personal jurisdiction, factual dispute as to existence of contract, and necessity of contractual dispute being subject to Bolivian law; and prejudice suffered by plaintiff could be modified by having defendant post bond to secure future judgment and having defendant pay plaintiff's at-torney's fees for motion of judgment by default, plaintiff's motion for default in breach of contract action for failure to purchase seamless steel tubing would be denied under Rule 55(c). Walpex Trading Co. v Yacimientos Petrolif-eros Fiscales Bolivianos (1986, SD NY) 109 FRD 692, 4 FR Serv 3d 999.

See Lutwin v New York (1985, SD NY) 106 FRD 502, 2 FR Serv 3d 265, affd without op (CA2 NY) 795 F2d 1004, § 20.

Defendant against whom plaintiff took default judgment is required to demonstrate that he had meritorious de-fense before judgment can be set aside, even though default judgment was taken in violation of local court rules pro-hibiting service by mail as basis for entry of default judgment. B.N.P. Canada, Inc. v Horvath & Assoc. Studios, Ltd. (1982, SD NY) 96 FRD 225.

See Morris v Charnin (1980, SD NY) 85 FRD 689, § 13[a].In determining whether to vacate an entry of default, the district court must consider: (1) whether the default


In determining whether to lift default under Rule 55(c), trial court must consider whether lifting default would prejudice plaintiff and whether defendant has prima facie meritorious defense. Emcasco Ins. Co. v Sambrick (1987, CA3 Pa) 834 F2d 71, 9 FR Serv 3d 1206.

Lessee against whom lessor brings action to recover amounts allegedly owed under lease is entitled to order set -ting aside default judgment entered against it where no prejudice accrues to lessor, meritorious defense is available to lessee and lessee's conduct in failing to timely answer is not willful. Gross v Stereo Component Systems, Inc. (1983, CA3 Pa) 700 F2d 120.

On motion for vacating default or default judgment, district court, in exercising its discretion, must consider: (1) whether plaintiff will be prejudiced, (2) whether defendant has meritorious defense, and (3) whether default was re -sult of defendant's culpable conduct. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Mettle v. First Union Nat. Bank, 279 F. Supp. 2d 598 (D.N.J. 2003).

Good cause is not established for setting aside default pursuant to Rule 55(c) or 60(b), where defendant knew from demand letter that claim was not for insignificant amount and his attitude showed arrogance and disregard of consequences, rather than mistake, inadvertance, or excusable neglect, and where, although motion to set aside de-fault mentioned undisclosed defenses, no draft of answer setting out defenses was submitted with motion itself. Ad-miral Home Appliances, Div. of Magic Chef, Inc. v Tenavision, Inc. (1982, DC NJ) 585 F Supp 14 , affd without op





































(CA3 NJ) 735 F2d 1347.In determining whether there is good cause to strike entry of default, court considers whether plaintiff will be

prejudiced, whether default was result of defendant's culpable conduct, whether defendant has meritorious defense, and effectiveness of alternative sanction. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Jackson v. Delaware County, 211 F.R.D. 282 (E.D. Pa. 2002).

Employer's contention that it fired employee because of her insubordination was a facially meritorious defense, satisfying requirement for setting aside entry of default. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Dizzley v. Friends Rehabilitation Program, Inc., 202 F.R.D. 146 (E.D. Pa. 2001).

Factors to be considered in determining "good cause" includes sufficiency of excuse, quick action in filing mo -tion to set aside, and meritorious defense. Spica v Garczynski (ED Pa) 78 FRD 134.

In contract action court granted defendants' motion to set aside entry of default where plaintiff would not be prejudiced, and where defendant had demonstrated meritorious defenses to plaintiff's claim. Accu-Weather, Inc. v Reuters, Ltd. (1991, MD Pa) 779 F Supp 801.

In civil action for damages, court granted defendant's motion under Rule 55(c) to set aside default judgment where defendant made showing of good cause; there was no evidence that plaintiff would be prejudiced by setting aside default, defendant proffered prima facie meritorious defense, and court concluded that defendant's conduct had not been culpable. Display Equation, Inc. v D.C. Industries, Inc. (1990, WD Pa) 134 FRD 124.

See Currie v Wood (1986, ED NC) 112 FRD 408, 7 FR Serv 3d 972, § 6[c].In determining whether to vacate default entered against party, court must consider, in addition to whether party

has meritorious defense, personal responsibility of the party, the prejudice to the party, whether there is a history of dilatory action, and the availability of sanctions less drastic. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Cox v. Sprung's Transport & Movers, Ltd., 407 F. Supp. 2d 754 (D.S.C. 2006).

In the context of a motion to set aside the entry of default judgment, all that is necessary to establish the exis-tence of a meritorious defense is a presentation or proffer of evidence, which, if believed, would permit either the court or the jury to find for the defaulting party. Fed.Rules Civ.Proc.Rule 55, 28 U.S.C.A. Colleton Preparatory Academy, Inc. v. Beazer East, Inc., 223 F.R.D. 401 (D.S.C. 2004).

Default judgment generally should be set aside where moving party acts with reasonable promptness and al -leges meritorious defense. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Colleton Preparatory Academy, Inc v. Beazer East, Inc., 219 F.R.D. 105 (D.S.C. 2003).

In addition to satisfying one of the six requirements of Federal Rule of Civil Procedure governing motions for relief from judgment, party seeking to set aside default judgment must also show timeliness, a meritorious defense and lack of unfair prejudice to plaintiff. 11 U.S.C.A. Bankr. Rule 7055; Fed. Rules Civ. Proc. Rules 55, 60(b), 28 U.S.C.A. Bank United v. Hamlett, 286 B.R. 839 (W.D. Va. 2002), aff'd, 47 Fed. Appx. 673 (4th Cir. 2002).

Factors court considers in determining whether "good cause" exists for setting aside entry of default include: (1) whether failure to act was willful; (2) whether setting default aside would prejudice adversary; and (3) whether meri-torious claim has been presented. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Effjohn Intern. Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 56 Fed. R. Serv. 3d 410 (5th Cir. 2003).

Relief from entry of default should be granted where defaulting party acts with reasonable diligence in seeking to set aside default and tenders meritorious defense. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Burton v. Conti-nental Cas. Co., 431 F. Supp. 2d 651 (S.D. Miss. 2006).

On consideration of request for relief from default judgment, defense is "meritorious" if there is some possibil-ity that the outcome of the suit after a full trial will be contrary to the result achieved by the default; if a defense is good at law, regardless of the likelihood of success, it will be considered meritorious. Fed.Rules Civ.Proc.Rule 60(b), 28 U.S.C.A. Burrell v. Henderson, 434 F.3d 826, 97 Fair Empl. Prac. Cas. (BNA) 281, 2006 FED App. 0013P (6th Cir. 2006).

In deciding whether relief is warranted, in a motion for relief from default judgment, three factors are relevant: (1) whether the party seeking relief is culpable, (2) whether the party opposing relief will be prejudiced, and (3) whether the party seeking relief has a meritorious claim or defense. Fed. Rules Civ. Proc. Rule 60(b)(1), 28 U.S.C.A. Williams v. Meyer, 346 F.3d 607, 2003 FED App. 0344P (6th Cir. 2003).

District court did not abuse its discretion by setting aside default judgment against automobile accident defen-dant; defendant had meritorious defenses, plaintiff was not unfairly prejudiced, and defendant's conduct, even if careless, was not willful or culpable. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Darwish v. Tempglass Group,















































Inc., 26 Fed. Appx. 477 (6th Cir. 2002).Court would reverse entry of default judgment in civil action against defendant although defendant was guilty

of evasion of process, plaintiff failed to demonstrate that he would be prejudiced by reopening of case, and defen -dant demonstrated meritorious defense. Berthelsen v Kane (1990, CA6 Mich) 907 F2d 617, 17 FR Serv 3d 61.

In action by repossession service company against trade association alleging that association restricted manner in which plaintiff could advertise its services in area in violation of consent decree entered in prior suit brought by Justice Department, default judgment entered against trade association will be set aside since association's answer to motion for preliminary injunction clearly indicates that it sought to defend against action, setting aside default will not prejudice plaintiff and association's assertion that court lacks subject-matter jurisdiction is meritorious defense to action. Golden v National Finance Adjusters (1982, ED Mich) 555 F Supp 42, 1983-1 CCH Trade Cases ¶ 65323.

In civil rights action against federal officials and private citizens, including plaintiff's prior attorney, arising from alleged violations of plaintiff's constitutional rights by interception of privileged communications between plaintiff and attorney, defendant attorney's motion to set aside entry of default pursuant to Rule 55(c) would be granted, where defendant's answer was filed within 30 days of service of complaint, where there was no evidence that plaintiff's ability to succeed on merits was prejudiced by defendants' failure to file timely answer, where defen-dant's answer presented potentially meritorious defense, and where default was not result of culpable conduct but of incorrect assumption that defendant had additional time to respond to complaint due to fact that federal defendant re-quested and was granted enlargement of time in which to respond; furthermore, mere delay in satisfying plaintiff's claim, if plaintiff ultimately succeeded at trial, was not sufficient prejudice to require denial of motion to set aside default. Newhouse v Probert (1985, WD Mich) 608 F Supp 978.

A defendant is not required to prove the likelihood that its proffered defense will succeed in order to obtain re-lief from the entry of a default judgment; rather the test is whether the defense relied upon is good at law. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Simmons v. Ohio Civil Service Emp. Assoc., 259 F. Supp. 2d 677 (S.D. Ohio 2003).

In determining whether a defendant has shown good cause to set aside an entry of default, a district court con-siders: (1) potential prejudice to the plaintiff by vacating the default entry; (2) whether defendant asserts a meritori -ous defense; and, (3) whether defendant's culpable conduct led to the default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Victoria's Secret Stores v. Artco Equipment Co., Inc., 194 F. Supp. 2d 704 (S.D. Ohio 2002).

In action by government to forfeit real property used in connection with cocaine trafficking, court would decline to set aside property owners' default since; although government failed to demonstrate prejudice if default were set aside, property owners failed to show meritorious defense and since court found that property owners had exhibited blatent disregard for judicial proceedings and should suffer consequences of default. United States v Real Property Constituting Approximately Fifty, 50, Acres (1988, ED Tenn) 703 F Supp 1306.

In civil action, plaintiff's motion for default judgment against defendant for failure to plead or otherwise defend would be denied where record did not show that default was result of willfulness or defendant's having totally ig -nored court's process, plaintiff did not claim he would suffer prejudice if entry of default were set aside and no prej -udice was apparent to court, and where defaulted defendant had set forth in answer meritorious defenses, which if established, would bar recovery by plaintiff; doubt should be resolved in favor of setting-aside default so that case can be decided on merits. Akers v Bonifasi (1984, MD Tenn) 629 F Supp 1212.

In action by government alleging that defendants had engaged in "pattern or practice" of making apartments un-available to persons because of their race in violation of Fair Housing Act, 42 U.S.C.A. §§ 3601 et seq., in which trial court defaulted defendants for failure to obey discovery orders and for failure to appear for properly noticed de -positions, trial court properly refused to set aside default against defendants under Rule 55(c), Federal Rules of Civil Procedure; in order to have entry of default set aside or default judgment vacated, defendants had to demonstrate good cause for default, quick action to correct it, and meritorious defense to complaint, and in case at bar defendants failed to satisfy "good cause" requirement inasmuch as court rejected argument that they had "substantially com-plied" with discovery and that they had tendered "all outstanding documents" to government at first default hearing, and inasmuch as, notwithstanding defendants' argument that they were not aware of counsel's misfeasance, notice to defendants' counsel constituted notice to defendants. United States v Di Mucci (1989, CA7 Ill) 879 F2d 1488, 14 FR Serv 3d 175.

In order to vacate a default judgment, the moving party has the burden to show: (1) good cause for the default; (2) quick action to correct the default; and (3) the existence of a meritorious defense to the original complaint.
























Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Trustees of Constr. Industry Welfare Fund of Cent. Ill. v. Rawdin Con-crete Const., Inc., 237 F.R.D. 414 (C.D. Ill. 2006).

In order to vacate entry of default, moving party must show: (1) good cause for default; (2) quick action to cor -rect it; and (3) meritorious defense to plaintiff's complaint. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Medline Industries, Inc. v. Medline Rx Financial, LLC, 218 F.R.D. 170 (N.D. Ill. 2003).

To set aside default judgment under Rule 55(c), defendant must show good cause for default, quick action to correct default, and meritorious defense to complaint. Landau v Cosmetic & Reconstructive Surgery Ctr. (1994, ND Ill) 158 FRD 117.

Where defendant, which cancelled wheelchair games and contract for official souvenir programs, possessed possible meritorious defenses of lack of agency authority, contractual frustration and impossibility, and absence of facts necessary to establish contractual liability; defendant was unable to obtain attorney due to its lack of finances and inability to find attorney who did not have conflict of interest; and motion to set aside judgment was filed within nine weeks after entry of default judgment, default judgment would be set aside under Rule 55(c). Allen Russell Pub., Inc. v Levy (1985, ND Ill) 109 FRD 315.

General denials and conclusory statements are insufficient to establish meritorious defense; movant must present factual basis for claim. Chandler Leasing Corp v UCC, Inc. (1981, ND Ill) 91 FRD 81, 32 FR Serv 2d 1007.

One of multiple defendants in maritime collision suit was entitled to vacation of default; though defendant had not formally answered complaint, he had sent plaintiff letters denying responsibility, had filed motion to vacate less than two weeks after entry of default, and had meritorious defense. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Bluegrass Marine Inc. v. Galena Road Gravel, Inc., 211 F.R.D. 356 (S.D. Ill. 2002).

In order to succeed in vacating a default judgment under the rule governing default, a defendant must show good cause for the default, quick action to correct it, and a meritorious defense to the complaint. Fed.Rules Bankr.Proc.Rule 7055, 11 U.S.C.A.; Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. In re Outboard Marine Corp., 359 B.R. 893, 47 Bankr. Ct. Dec. (CRR) 196 (Bankr. N.D. Ill. 2007).

When examining whether good cause exists to set aside default, the district court should weigh whether the con-duct 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. Fed.Rules Civ.Proc.Rule 55, 28 U.S.C.A. Stephenson v. El-Batrawi, 524 F.3d 907 (8th Cir. 2008).

District court's decision to set aside § 1983 defendant's default was not clearly wrong, where defendant timely moved to vacate and had meritorious defense. 42 U.S.C.A. § 1983. Vonderplanitz v. City of Los Angeles, 43 Fed. Appx. 60 (9th Cir. 2002).

In civil action, trial court properly denied defendant's motion under Rule 55(c) to set aside default judgment where evidence before trial court warranted conclusion that defendant did not have meritorious defense. Cassidy v Tenorio (1988, CA9 Guam) 856 F2d 1412, 12 FR Serv 3d 412.

Where timely relief is sought from default and movant has meritorious defense, doubt if any should be resolved in favor of motion to set aside default so that cases may be decided on merits. Thus, in civil action alleging violation of Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C.A. §§ 1801 et seq., trial court properly found good cause to set aside default of one defendant where evidence showed that defendant was confused regarding ser -vice, there was a meritorious defense, and there was no prejudice to plaintiffs. Mendoza v Wight Vineyard Manage-ment (1986, CA9 Cal) 783 F2d 941, 4 FR Serv 3d 42.

In Ninth Circuit, standard for setting aside default judgment on ground of mistake, inadvertence, surprise, or ex-cusable neglect is not met, and motion to set aside default can be denied, when: (1) plaintiff would be prejudiced if judgment is set aside, (2) defendant has no meritorious defense, or (3) defendant's culpable conduct led to the de -fault; only one of these factors need be present to justify denial of motion to set aside default judgment Fed. Rules Civ. Proc. Rule 60(b), 28 U.S.C.A. McManus v. American States Ins. Co., 201 F.R.D. 493 (C.D. Cal. 2000).

Defendant's multitude of meritorious defenses established "good cause" to set aside default judgment against her, in her ex–husband's action for negligence, false arrest, malicious prosecution, and abuse of process, alleging that defendant orchestrated their daughter's allegations that plaintiff sexually abused her, and that he spent six years in prison for aggravated incest crimes he did not commit. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Crutcher v. Coleman, 205 F.R.D. 581 (D. Kan. 2001).

Principal factors in determining whether the defendant has met good cause standard necessary to set aside de-fault under Rule 55(c) are whether default was result of culpable conduct of the defendant, whether the plaintiff











































would be prejudiced if default were set aside, and whether the defendant presented meritorious defense. Porter v Brancato (1997, DC Kan) 171 FRD 303.

In civil action, court would set aside defendant's default where defendant had made affirmative defenses of breach of fiduciary duty and bad faith breach of contract and had also asserted counterclaim for breach of contract and fiduciary duty, which were meritorious defenses, motion to set aside was not prejudicial having been made after lapse of only one day, and since default was not willful. First Interstate Bank, N.A. v Service Stores of America, Inc. (1989, WD Okla) 128 FRD 679.

Answer to Securities and Exchange Commission's (SEC) complaint in enforcement suit, which consisted of general denials of SEC's allegations, was not enough to show a meritorious defense, as was required to warrant relief from default on grounds of excusable neglect. Fed.Rules Civ.Proc.Rule 60(b)(1), 28 U.S.C.A. S.E.C. v. Simmons, 241 Fed. Appx. 660 (11th Cir. 2007).

Principal factors in determining whether defendant has met good cause standard for setting aside default are (1) whether default was result of culpable conduct of defendant, (2) whether plaintiff would be prejudiced if default should be set aside, and (3) whether defendant presented meritorious defense. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. U.S. v. Nalls, 177 F.R.D. 696 (S.D. Fla. 1997).

Factors for court to consider in determining whether defaulting party has shown "good cause" to set aside de-fault include: (1) whether default was culpable or willful; (2) whether setting it aside would prejudice nondefaulting party; and (3) whether party in default has a meritorious defense. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475 (N.D. Ga. 1997).

Three factors guide district courts in determining whether good cause exists to set aside entry of default judg-ment: (1) whether the default was willful, (2) whether a set-aside would prejudice plaintiff, and (3) whether the al -leged defense was meritorious. Fed.Rules Civ.Proc.Rule 55, 28 U.S.C.A. Grynberg v. BP P.L.C., 596 F. Supp. 2d 74, R.I.C.O. Bus. Disp. Guide (CCH) P 11625 (D.D.C. 2009).

In determining the existence of a meritorious defense, as would support setting aside default judgment, likeli-hood of success is not the measure; rather, a party's allegations are meritorious if they contain even a hint of a sug-gestion which, if proven, would constitute a complete defense. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Candido v. District of Columbia, 242 F.R.D. 151 (D.D.C. 2007).

On a motion to set aside entry of default, the movant is not required to prove a defense, but only to assert a de -fense that it may prove at trial. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Capital Yacht Club v. Vessel AVIVA, 228 F.R.D. 389 (D.D.C. 2005).

Defendant failed to allege a meritorious defense, as would warrant setting aside default judgment against her, where she merely proffered a general denial of allegations against her. Fed.Rules Civ.Proc.Rule 60(b)(1), 28 U.S.C.A. Whittaker v. District of Columbia, 228 F.R.D. 378 (D.D.C. 2005).

In determining whether good cause to set aside default is shown, courts balance whether (1) the default was willful, (2) a set–aside would prejudice plaintiff, and (3) the alleged defense was meritorious. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Biton v. Palestinian Interim Self Government Authority, 233 F. Supp. 2d 31 (D.D.C. 2002).

See James Electric Co. v Cougar Enterprises, Inc. (1986, DC Dist Col) 111 FRD 324, 4 FR Serv 3d 87, § 13[a].

[Top of Section]

[END OF SUPPLEMENT]

§ 6[b] Other considerations affecting relief under Rule 55(c)—Prejudice to opposing party

[Cumulative Supplement]Another matter considered by the courts which have construed the good cause standard of Rule 55(c) has been

the effect an opening of the default may have upon the party who obtained it. In the following decisions, it was ac-knowledged that relief should not be granted under Rule 55(c) where it would result in prejudice to the nondefault-ing party.First Circuit

Kingvision Pay-Per-View Ltd. v. Niles, 150 F. Supp. 2d 188 (D. Me. 2001)




































Second Circuit Securities & Exchange Com. v Vogel (1969, DC NY) 49 FRD 297

Fariello v Rodriguez (1993, ED NY) 148 FRD 670

Westmark Development Corp. v. Century Sur. Co., 199 F.R.D. 491 (W.D.N.Y. 2001)

Nationwide Mutual Fire Ins. Co. v. Rankin, 199 F.R.D. 498 (W.D.N.Y. 2001)Third Circuit


Kulakowich v A/S Borgestad (1964, DC Pa) 36 FRD 185


Titus v Smith (1970, DC Pa) 51 FRD 224

Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395

Hamilton v Edell (1975, DC Pa) 67 FRD 18

Trachtman v T. M. S. Realty & Financial Services (1975, DC Pa) 393 F Supp 1342

Bell Tel. Laboratories, Inc. v Hughes Aircraft Co. (DC Del) 73 FRD 16Fourth Circuit

Ellington v Milne (1953, DC NC) 14 FRD 241

Currie v Wood (1986, ED NC) 112 FRD 408, 7 FR Serv 3d 972Fifth Circuit

Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231 (apparently recognizing rule)Sixth Circuit

Golden v National Finance Adjusters (1982, ED Mich) 555 F Supp 42, 1983-1 CCH Trade Cases ¶65323Ninth Circuit

Walter E. Heller Western, Inc. v Seaport Enterprises, Inc. (1983, DC Or) 99 FRD 36, 36 FR Serv 2d 1059

Thus, it was indicated by the court in Securities & Exchange Com. v Vogel (1969, DC NY) 49 FRD 297, that an entry of default should be set aside under Rule 55(c) only when it appears, inter alia, that such relief will not re-sult in substantial prejudice to the opposing party.

The court in Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395, ex-pressed the opinion that there are several prerequisites to relief from an entry of default under Rule 55(c), one of which is that the nondefaulting party will not be prejudiced by the reopening.

And it was observed in Trachtman v T. M. S. Realty & Financial Services (1975, DC Pa) 393 F Supp 1342, that a Rule 55(c) motion to set aside a default entry will generally be denied unless the court finds that the nondefaulting party will not be substantially prejudiced by such relief.

Additionally, while the courts in the following decisions did not expressly subscribe to the view that relief should be denied under Rule 55(c) if it will result in prejudice to the opposing party, each relied in part upon the ab-sence of such prejudice in deciding to grant relief.First Circuit

Eisler v Stritzler (1968, DC Puerto Rico) 45 FRD 27Second Circuit






























Albert Levine Associates, Inc. v Kershner (1968, DC NY) 45 FRD 450Third Circuit

Mannke v Benjamin Moore & Co. (1967, CA3 Pa) 375 F2d 281

Teal v King Farms Co. (1955, DC Pa) 18 FRD 447

Alopari v O'Leary (1957, DC Pa) 154 F Supp 78

Nunn v Reina (1958, DC Pa) 21 FRD 573Fourth Circuit

Huntington Cab Co. v American Fidelity & Casualty Co. (1945, DC W Va) 4 FRD 496Fifth Circuit

A. C. Samford v United States (1963, DC Ga) 226 F Supp 72

Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456, infraSixth Circuit

Rooks v American Brass Co. (1959, CA6 Mich) 263 F2d 166

Johnson v Harper (1975, DC Tenn) 66 FRD 103Seventh Circuit

Boyer v Wisconsin (1972, DC Wis) 55 FRD 90Ninth Circuit

Provident Secur. Life Ins. Co. v Gorsuch (1963, CA9 Ariz) 323 F2d 839, cert den 376 US 950, 11 L Ed 2d 970, 84 S Ct 966

Dist Col Circuit Barber v Turberville (1954) 94 App DC 335, 218 F2d 34

Brown v Weschler (1955, DC Dist Col) 135 F Supp 622

Illustrative of this approach is Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456, where the court, in setting aside an entry of default under Rule 55(c), emphasized that the moving party had a meritorious defense to the action, that the default was attributable to his counsel's mere misinterpretation on a technical point of law, and that the opposing party had failed to show that he suffered any prejudice as a result of the delay.


Cases:

Among the factors that a court may consider in determining whether to set aside entry of the default are whether the default was willful and whether removal of the default would prejudice the plaintiff. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Venegas-Hernandez v. Sonolux Records, 370 F.3d 183 (1st Cir. 2004).


See Coon v Grenier (1989, CA1 RI) 867 F2d 73, 13 FR Serv 3d 96, § 6[a].Defendants who had deliberately obstructed progress of litigation did not show good cause to remove default;

defendants had ignored court orders and procedural rules and had no decent explanation for their delay in seeking relief from default, their significant defenses had been rejected, and removal of default would have prejudiced plain-tiff. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) U.S. v. Ponte, 246 F. Supp. 2d 74 (D. Me. 2003).






























See Kryzak v Dresser Industries (1987, DC Me) 118 FRD 12, § 13[a].See Wayland v District Court, Biddeford (1985, DC Me) 104 FRD 91, § 9.Among the factors that a court may consider in assessing good cause to set aside an entry of default judgment

are whether: (1) the default was wilful, (2) a set-aside would prejudice plaintiff, (3) a meritorious defense is pre -sented, (4) the nature of the defendant's explanation for the default, (5) the good faith of the parties, (6) the amount of money involved, and (7) the timing of the motion. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Rodriguez Fer-nandez v. Urban Transit Solutions, Inc., 230 F.R.D. 273 (D.P.R. 2005), reconsideration denied, (July 26, 2005).

See Re Men's Sportswear, Inc. (1987, CA2 NY) 834 F2d 1134, CCH Bankr L Rptr ¶72126, § 6[a].Mere fact that plaintiff had agreed to grant defendant extension of time to respond to plaintiff's fee motion was

insufficient to demonstrate that plaintiff would not be prejudiced by delay resulting from vacation of default on fee motion. Marziliano v. Heckler, 728 F.2d 151, 4 Soc. Sec. Rep. Serv. 170, Unempl. Ins. Rep. (CCH) ¶15153 (2d Cir. 1984).

See United States v Thornton (1986, DC Conn) 113 FRD 499, § 6[a].In determining whether to vacate entry of default, court considers: (1) whether default was willful, (2) whether

setting aside default would prejudice the adversary, and (3) whether a meritorious defense is presented. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Harriman v. I.R.S., 233 F. Supp. 2d 451, 90 A.F.T.R.2d 2002-7407 (E.D. N.Y. 2002).

Delay alone does not establish type of prejudice which would justify denial of motion to vacate default; rather, to establish "prejudice," plaintiff must demonstrate that delay will result in loss of evidence, create increased diffi-culties of discovery, or provide greater opportunity for fraud and collusion. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Argus Research Group, Inc. v. Argus Securities, Inc., 204 F. Supp. 2d 529 (E.D. N.Y. 2002).

The imposition of the cost of litigating the issue of whether to vacate default judgment, and the delay in obtain -ing the requested relief that plaintiff would suffer if defendant's motion to vacate the default judgment was granted, were not sufficient to show prejudice, as would support denial of defendant's motion to vacate. Fed.Rules Civ.Proc.Rule 60(b), 28 U.S.C.A. LaManna v. Concord Mortg. Corp., 244 F.R.D. 148 (N.D. N.Y. 2007).

Prejudice from setting aside entry of default results when delay causes loss of evidence, creates difficulties of discovery, or provides greater opportunity for fraud and collusion. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Niepoth v. Montgomery County Dist. Attorney's Office, 177 F.R.D. 111 (N.D.N.Y. 1998).

See Grant v New York (1992, SD NY) 145 FRD 325, § 6[a].See Fine Shoe Co. v Buckray, Inc. (1990, SD NY) 131 FRD 58, § 20.See Brown v De Filippis (1988, SD NY) 695 F Supp 1528, § 4.See Walpex Trading Co. v Yacimientos Petroliferos Fiscales Bolivianos (1986, SD NY) 109 FRD 692, 4 FR

Serv 3d 999, § 6[a].See Lutwin v New York (1985, SD NY) 106 FRD 502, 2 FR Serv 3d 265, § 20.Under Rule 55(c) court has discretion to set aside entry of default for good cause shown, which is more lenient

test than that applied under Rule 60(b) for setting aside judgment of default; court should resolve all doubts in favor of party seeking relief from defaults but determination may be made on merits, considering such factors as whether default was willful, whether setting it aside would prejudice adversary, and whether meritorious defense is pre-sented; and trial court may impose conditions on parties in conjunction with granting of motion to remedy prejudice which nondefaulting party suffered as a result of default or granting of motion. Oliner v McBride's Industries, Inc. (1984, SD NY) 102 FRD 561, 39 FR Serv 2d 1280, later proceeding (SD NY) 106 FRD 9, 2 FR Serv 3d 567, later proceeding (SD NY) 106 FRD 14, 2 FR Serv 3d 574.

See Morris v Charnin (1980, SD NY) 85 FRD 689, § 13[a].In determining whether to vacate an entry of default, the district court must consider: (1) whether the default


See Emcasco Ins. Co. v Sambrick (1987, CA3 Pa) 834 F2d 71, 9 FR Serv 3d 1206, § 6[a].In exercising its discretion on motion to vacate default judgment, trial court must consider (1) whether plaintiff

will be prejudiced if default is lifted, (2) whether defendant has meritorious defense, and (3) whether default was re-sult of defendant's culpable misconduct. Hritz v Woma Corp. (1984, CA3 Pa) 732 F2d 1178.

On motion for vacating default or default judgment, district court, in exercising its discretion, must consider: (1)









































whether plaintiff will be prejudiced, (2) whether defendant has meritorious defense, and (3) whether default was re -sult of defendant's culpable conduct. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Mettle v. First Union Nat. Bank, 279 F. Supp. 2d 598 (D.N.J. 2003).

In determining whether there is good cause to strike entry of default, court considers whether plaintiff will be prejudiced, whether default was result of defendant's culpable conduct, whether defendant has meritorious defense, and effectiveness of alternative sanction. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Jackson v. Delaware County, 211 F.R.D. 282 (E.D. Pa. 2002).

Prejudice requirement of rule providing that entry of default may be set aside for good cause compels plaintiffs to demonstrate that the plaintiff's claim would be materially impaired because of the loss of evidence, an increased potential for fraud or collusion, substantial reliance on the entry of default, or other substantial factors. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Dizzley v. Friends Rehabilitation Program, Inc., 202 F.R.D. 146 (E.D. Pa. 2001).

See General Tire & Rubber Co. v Olympic Gardens, Inc. (1979, ED Pa) 85 FRD 66, § 4.See Accu-Weather, Inc. v Reuters, Ltd. (1991, MD Pa) 779 F Supp 801, § 6[a].See Display Equation, Inc. v D.C. Industries, Inc. (1990, WD Pa) 134 FRD 124, § 6[a].Third-party plaintiff's motion for entry of judgment against third-party defendant is denied and entry of default

is set aside because third-party plaintiff will not be prejudiced by setting aside of default, doubt as to whether third-party defendant has meritorious defense has to be resolved in its favor, it is not shown that third-party defendant has acted willfully or in material bad faith and third-party defendant's conduct is, at most, neglectful. Quaker Valley School Dist. v Employers Mut. Liability Ins. Co. (1983, WD Pa) 96 FRD 423.

See Currie v Wood (1986, ED NC) 112 FRD 408, 7 FR Serv 3d 972, § 6[c].In addition to satisfying one of the six requirements of Federal Rule of Civil Procedure governing motions for

relief from judgment, party seeking to set aside default judgment must also show timeliness, a meritorious defense and lack of unfair prejudice to plaintiff. 11 U.S.C.A. Bankr. Rule 7055; Fed. Rules Civ. Proc. Rules 55, 60(b), 28 U.S.C.A. Bank United v. Hamlett, 286 B.R. 839 (W.D. Va. 2002), aff'd, 47 Fed. Appx. 673 (4th Cir. 2002).

Factors court considers in determining whether "good cause" exists for setting aside entry of default include: (1) whether failure to act was willful; (2) whether setting default aside would prejudice adversary; and (3) whether meri-torious claim has been presented. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Effjohn Intern. Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 56 Fed. R. Serv. 3d 410 (5th Cir. 2003).

In civil action, entry of default against defendant would be set aside for good cause so action could proceed on merits where, after default, defendant had filed answer within four days and plaintiff had elected to proceed on mer-its by filing motion for summary judgment. Employers Ins. of Wausau v Dunaway (1986, SD Miss) 626 F Supp 1144.

Among the factors relevant to determination of good cause warranting setting aside an entry of default are: (1) whether the default was willful; (2) whether setting aside the default would prejudice the opposing party; and (3) whether a meritorious defense is presented. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Beall v. Cockrell, 174 F. Supp. 2d 512 (N.D. Tex. 2001).

Delay in adjudicating a plaintiff's claim does not qualify as sufficient prejudice to defeat relief from entry of de-fault. Fed.Rules Civ.Proc.Rule 55, 28 U.S.C.A. Burrell v. Henderson, 434 F.3d 826, 97 Fair Empl. Prac. Cas. (BNA) 281, 2006 FED App. 0013P (6th Cir. 2006).


The criteria used to determine whether good cause has been shown for purposes of granting a motion to set aside entry of default are (1) the default was willful, (2) set–aside would prejudice plaintiff, and (3) the alleged de-fense was meritorious. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 2003 FED App. 0288P (6th Cir. 2003).

See Berthelsen v Kane (1990, CA6 Mich) 907 F2d 617, 17 FR Serv 3d 61, § 6[a].In determining whether good cause to set aside entry of default exists, courts are required to weigh three factors:

whether plaintiff will be prejudiced from reopening the case, whether defendant has a meritorious defense, and whether culpable conduct of defendant led to default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Bowens v. Af-termath Entertainment, 254 F. Supp. 2d 629 (E.D. Mich. 2003).














































See Newhouse v Probert (1985, WD Mich) 608 F Supp 978, § 6[a].Three factors govern whether relief from a default judgment is available: (1) whether the plaintiff will be preju-

diced; (2) whether the defendant has a meritorious defense; and (3) whether culpable conduct on the part of the de -fendant led to the default. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Simmons v. Ohio Civil Service Emp. Assoc., 259 F. Supp. 2d 677 (S.D. Ohio 2003).

In determining whether a defendant has shown good cause to set aside an entry of default, a district court con-siders: (1) potential prejudice to the plaintiff by vacating the default entry; (2) whether defendant asserts a meritori -ous defense; and, (3) whether defendant's culpable conduct led to the default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Victoria's Secret Stores v. Artco Equipment Co., Inc., 194 F. Supp. 2d 704 (S.D. Ohio 2002).

See U.S. v. Real Property Constituting Approximately Fifty (50) Acres, Located in Sevier County, Tenn., 703 F. Supp. 1306 (E.D. Tenn. 1988), § 6[a].

See Mendoza v Wight Vineyard Management (1986, CA9 Cal) 783 F2d 941, 4 FR Serv 3d 42, § 6[a].In Ninth Circuit, standard for setting aside default judgment on ground of mistake, inadvertence, surprise, or ex-

cusable neglect is not met, and motion to set aside default can be denied, when: (1) plaintiff would be prejudiced if judgment is set aside, (2) defendant has no meritorious defense, or (3) defendant's culpable conduct led to the de -fault; only one of these factors need be present to justify denial of motion to set aside default judgment Fed. Rules Civ. Proc. Rule 60(b), 28 U.S.C.A. McManus v. American States Ins. Co., 201 F.R.D. 493 (C.D. Cal. 2000).

Three-factor test to determine if "good cause" or "excusable neglect" exists to set aside entry of default asks: (1) whether defendant's or defense counsel's culpable conduct caused the default; (2) whether defendant appears not to have a meritorious defense; and (3) whether plaintiff would be prejudiced by setting the default aside. Fed. Rules Civ. Proc. Rule 55, 28 U.S.C.A. Cohen v. Murphey, 222 F.R.D. 416 (N.D. Cal. 2004).

In action by taxpayer against Internal Revenue Service (IRS), trial court properly denied taxpayer's motion for default judgment where trial court noted that taxpayer had not been prejudiced by delay of IRS in answering com -plaint, discovery had been proceeding and taxpayer was on notice of several defenses of IRS, and that delay was re -sult of inadvertence of counsel and was not due to bad faith. Grandbouche v Clancy (1987, CA10) 825 F2d 1463, 8 FR Serv 3d 1037.

Principal factors in determining whether defendant has met good cause standard necessary to set aside default under Rule 55(c) are whether default was result of culpable conduct of the defendant, whether the plaintiff would be prejudiced if default were set aside, and whether the defendant presented meritorious defense. Porter v Brancato (1997, DC Kan) 171 FRD 303.

In exercising discretion to set aside an entry of default, a court must consider whether: (1) the default was will -ful; (2) a set-aside would prejudice plaintiff; and (3) the alleged defense was meritorious. Fed.Rules Civ.Proc.Rule 55, 28 U.S.C.A. Van De Berg v. Social Sec. Admin., 254 F.R.D. 144 (D.D.C. 2008).

On a motion to set aside entry of default, delay in and of itself does not constitute prejudice to the opponent. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Capital Yacht Club v. Vessel AVIVA, 228 F.R.D. 389 (D.D.C. 2005).

In determining whether good cause to set aside default is shown, courts balance whether (1) the default was willful, (2) a set–aside would prejudice plaintiff, and (3) the alleged defense was meritorious. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Biton v. Palestinian Interim Self Government Authority, 233 F. Supp. 2d 31 (D.D.C. 2002).

See James Electric Co. v Cougar Enterprises, Inc. (1986, DC Dist Col) 111 FRD 324, 4 FR Serv 3d 87, § 13[a].

[Top of Section]

[END OF SUPPLEMENT]

§ 6[c] Other considerations affecting relief under Rule 55(c)—Timeliness of motion

[Cumulative Supplement]While Rule 60(b) requires that a motion to vacate a final judgment, including a default judgment, be made

within a "reasonable time," and not more than one year after entry of the judgment where certain grounds for relief are relied upon, Rule 55(c) contains no such express time limitations. Notwithstanding this fact, a number of courts





































have recognized that relief should not be granted under the good cause standard of Rule 55(c) unless the motion therefor has been made with reasonable promptness.Third Circuit




Titus v Smith (1970, DC Pa) 51 FRD 224

Seanor v Bair Transport Co. (1971, DC Pa) 54 FRD 35

Phillips v Flynn (1974, DC Pa) 61 FRD 574

Meyer v Lavelle (1974, DC Pa) 64 FRD 533, 29 ALR Fed 1Fourth Circuit

Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Corp. (1967, CA4 Va) 383 F2d 249

Davis v Carabo (1970, DC SC) 50 FRD 468Fifth Circuit

Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231 (apparently recognizing rule)Seventh Circuit

United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944

Thus, it was said in Titus v Smith (1970, DC Pa) 51 FRD 224, that although there is no fixed time limitation upon the power of a court to set aside a default entry, since it is interlocutory in nature, it should not be set aside if relief is not requested within a reasonable time.

Similarly, it was observed by the court in Seanor v Bair Transport Co. (1971, DC Pa) 54 FRD 35, that while a Rule 55(c) motion to set aside a default entry need not be made within any specified period of time, as must a mo-tion to vacate a default judgment, it must nevertheless be made with reasonable promptness.

The court indicated in Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Corp. (1967, CA4 Va) 383 F2d 249, that a default should be set aside under Rule 55(c) only when the moving party has acted with reason-able promptness.

And it was stated in United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944, that a ba-sic element required for relief from a default entry under Rule 55(c) is that there be quick action to correct it.

Additionally, while not going so far as to expressly acknowledge that reasonable promptness is a prerequisite to relief under Rule 55(c), the court in each of the ensuing decisions granted such relief at least in part because prompt action had been taken to cure the default.First Circuit


Bedard v Consolidated Mut. Ins. Co. (1970, DC Puerto Rico) 313 F Supp 1020Second Circuit

Broder v Charles Pfizer & Co. (1971, DC NY) 54 FRD 583Third Circuit


Nunn v Reina (1958, DC Pa) 21 FRD 573

Nicholson v Allied Chemical Corp. (1961, DC Pa) 200 F Supp 206






























Sixth Circuit Johnson v Harper (1975, DC Tenn) 66 FRD 103

Seventh Circuit Boyer v State (1972, DC Wis) 55 FRD 90, infra

For example, in deciding to grant a Rule 55(c) motion to set aside an entry of default, the court in Boyer v State (1972, DC Wis) 55 FRD 90, emphasized that an affidavit accompanying the motion demonstrated that the failure to file a timely answer had been due to mere inadvertence, that relief from the default would not substantially prejudice the opposing party, and that the instant motion had been made within 6 days of the default entry and less than 2 months following commencement of the action


Cases:

See Grover v Commercial Ins. Co. (1985, DC Me) 108 FRD 366, § 6[a].Former employee of computer software corporation was not entitled to an order striking default judgment en-

tered against him, although judgment was entered by magistrate judge who lacked authority to make such a final de-termination, where employee had caused corporation unfair prejudice in its effort to promptly enforce parties' non-competition and nondisclosure agreement by refusing to file a timely response to complaint and failing to take prompt action to have default removed, and employee failed to sufficiently support claim that he had a good defense to complaint. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Highdata Software v. Kothandan, 160 F. Supp. 2d 167, 49 Fed. R. Serv. 3d 84, 2001 DNH 66 (D.N.H. 2001).

Defendant failed to show good cause to support setting aside default judgment against it, where defendant waited 41 days after default judgment and 85 days after its answer to the amended complaint was due to file motion to set aside default judgment, defendant never requested additional time to answer the amended complaint as it did with respect to original complaint, defendant did not present meritorious defense to claims against it, there was no showing that defendant did not receive timely notification of the entry of default judgment, setting aside the default judgment would prejudice plaintiffs, and defendant did not act in good faith, as shown by its repeated failure to ad-here to the deadlines set forth by the court. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Rodriguez Fernandez v. Ur-ban Transit Solutions, Inc., 230 F.R.D. 273 (D.P.R. 2005), reconsideration denied, (July 26, 2005).

See Morris v Charnin (1980, SD NY) 85 FRD 689, § 13[a].In action by migrant farmworker for violation of his rights under several federal statutes, court within its discre -

tion would relieve defendant of default judgment rendered against him under Rule 55(c) even though defendant had attempted to evade service of process and even though defendant had not demonstrated factual existence of meritori-ous defense, where length of delay in requesting that default be set aside was short and farmworker had not shown that setting aside default would prejudice him in assertion of his claim. Currie v Wood (1986, ED NC) 112 FRD 408, 7 FR Serv 3d 972.

Default judgment generally should be set aside where moving party acts with reasonable promptness and al -leges meritorious defense. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Colleton Preparatory Academy, Inc v. Beazer East, Inc., 219 F.R.D. 105 (D.S.C. 2003).

Once entry of default has ripened into a default judgment, party seeking relief therefrom must meet the stricter requirements than for relief merely from the entry of default; public policy favoring the finality of judgments is re-flected in the more specific requirements that apply once an actual default judgment has been entered and damages have been calculated, though the competing policy consideration that values the disposition of cases on their merits dictates that the court should construe all ambiguous or disputed facts in the light most favorable to the defendant. Fed.Rules Civ.Proc.Rule 55(c), 60(b), 28 U.S.C.A. Burrell v. Henderson, 434 F.3d 826, 97 Fair Empl. Prac. Cas. (BNA) 281, 2006 FED App. 0013P (6th Cir. 2006).

See Newhouse v Probert (1985, WD Mich) 608 F Supp 978, § 6[a].See United States v Di Mucci (1989, CA7 Ill) 879 F2d 1488, 14 FR Serv 3d 175, § 6[a].See Allen Russell Pub., Inc. v Levy (1985, ND Ill) 109 FRD 315, § 6[a].






























Defendant's motion to set aside entry of default pursuant to Rule 55(c) is properly granted where defendant re-sponds to entry of default very soon after it is accomplished and where it does not appear that plaintiff will be preju -diced by setting aside default, except insofar as it will then have to defend on merits. Walter E. Heller Western, Inc. v Seaport Enterprises, Inc. (1983, DC Or) 99 FRD 36, 36 FR Serv 2d 1059.

See First Interstate Bank, N.A. v Service Stores of America, Inc. (1989, WD Okla) 128 FRD 679, § 6[a].Plaintiff's failure to prove actual damages was sufficient "good cause" for the court to vacate the default and en-

ter final judgment for defendant on Florida defamation claim. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) An-heuser Busch, Inc. v. Philpot, 317 F.3d 1264 (11th Cir. 2003).

[Top of Section]

[END OF SUPPLEMENT]

§ 6[d] Other considerations affecting relief under Rule 55(c)—Amount involved in suit

[Cumulative Supplement]Courts faced with requests for relief under Rule 60(b) have displayed a reluctance to uphold default judgments

where substantial amounts of money are involved, and as an apparent result of such cases the view has evolved that matters involving large sums should not be determined by default judgment if it can reasonably be avoided (see § 8[a] of the annotation at 15 A.L.R. Fed. 193, as well as 10 Wright and Miller, Federal Practice and Procedure: Civil § 2681). This view is, of course, as relevant when a default entry is sought to be opened under Rule 55(c) as it is when relief is requested under Rule 60(b). Expressly or tacitly subscribing thereto, the court in each of the ensuing Rule 55(c) cases relied in part upon the substantiality of the sum involved in the controversy in deciding to set aside a default.

Thus, in connection with granting a defendant's motion to set aside an entry of default, the court in Eisler v Stritzler (1968, DC Puerto Rico) 45 FRD 27, emphasized that the complaint demanded a judgment in the amount of $85,000, while a counterclaim filed by the defendant sought an award of $511,281, and observed that litigation of such magnitude should be decided on the merits.

Similarly, the court in Hutton v Fisher (1966, CA3 Pa) 359 F2d 913, as one reason for opening a default entry, pointed out that the amount involved in the instant case was "substantial," and that matters involving large sums should not be determined by default judgment if it can reasonably be avoided.

In granting relief from a default entry under Rule 55(c), the court in Ellington v Milne (1953, DC NC) 14 FRD 241, observed, as one apparent basis for its decision, that matters involving large sums should not be determined by default judgment if such can reasonably be avoided.

Likewise, stating that matters involving large sums of money should not be determined by default judgment if it can reasonably be avoided, the court in Rooks v American Brass Co. (1959, CA6 Mich) 263 F2d 166, set aside a de-fault entry in part because the complaint sought a judgment against the moving party in the amount of $60,000.

And noting that all applicable requirements for relief under Rule 55(c) had been satisfied, the court in Johnson v Harper (1975, DC Tenn) 66 FRD 103, added that another reason why the defendant's motion to set aside a default entry should be granted was the very magnitude of the suit, the plaintiffs having sought damages aggregating $6,250,000.


Cases:

See Kryzak v Dresser Industries (1987, DC Me) 118 FRD 12, § 13[a].Where defendant did not offer adequate excuse or explanation for failure to file timely answer and failed to es -

tablish existence of meritorious defense, relief from default was not granted even though large amount of money was involved. Maine Nat. Bank v F/V Cecily B (1987, DC Me) 116 FRD 66.





























See Grover v Commercial Ins. Co. (1985, DC Me) 108 FRD 366, § 6[a].Although defendant's excuse for failure to timely file answer is less than compelling by Rule 60(b) standards, it

is sufficient to justify relief in case where application of other criteria, including existence of meritorious defense and lack of substantial prejudice to plaintiff, militate in favor of setting aside entry of default, and where case is sig-nificant one involving kidnapping, robbery, rape, assault and battery, and damage claim of $16,000,000, and defen -dants acted very quickly to remedy their delay in responding. Phillips v Weiner (1984, DC Me) 103 FRD 177.

Relevant factors to be considered in determining "good cause" for setting aside entry of default include: whether default was willful, whether setting it aside would prejudice adversary, whether meritorious defense is presented, ex-planation for default, good faith of parties, amount of money involved, and timing of motion. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Mach v. Florida Casino Cruise, Inc., 187 F.R.D. 15 (D. Mass. 1999).

Among the factors that a court may consider in assessing good cause to set aside an entry of default judgment are whether: (1) the default was wilful, (2) a set-aside would prejudice plaintiff, (3) a meritorious defense is pre -sented, (4) the nature of the defendant's explanation for the default, (5) the good faith of the parties, (6) the amount of money involved, and (7) the timing of the motion. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Rodriguez Fer-nandez v. Urban Transit Solutions, Inc., 230 F.R.D. 273 (D.P.R. 2005), reconsideration denied, (July 26, 2005).

Court had authority to set aside entry of default under Federal Rule of Civil Procedure 55(c), where good cause was shown by (1) defendant's prompt response after being informed of default; (2) defendant was in default only eleven days; (3) validity of California Elections Code was important public issue in case; and (4) defendant's posi-tion had obvious merit as evidenced by District Court's decision to grant motion to dismiss. Cross v Fong Eu (DC Cal) 430 F Supp 1036.

[Top of Section]

[END OF SUPPLEMENT]

§ 6[e] Other considerations affecting relief under Rule 55(c)—Bad faith of defendant subsequent to entry of default



Cases:

Default may be willful, which would weigh against setting it aside, where it shows contempt for the court's pro-cedures or an effort to evade the court's authority. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. McGarey v. York County, 233 F.R.D. 220 (D. Me. 2006).

District court must consider three factors to determine whether good cause exists to set aside default: (1) whether default was willful, (2) whether setting aside default would prejudice plaintiff, and (3) whether defendant's defenses are meritorious. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Kingvision Pay-Per-View Ltd. v. Niles, 150 F. Supp. 2d 188 (D. Me. 2001).

Material bad faith conduct by defendant subsequent to entry of default can, if sufficiently egregious, provide ba-sis for refusing to set aside default. Farnese v Bagnasco (1982, CA3 Pa) 687 F2d 761, 34 FR Serv 2d 1232.


To be treated as sufficiently culpable to preclude setting aside default, conduct of defaulting defendant must dis-play either intent to thwart judicial proceedings or reckless disregard for effect of its conduct on those proceedings. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Raimondo v. Village of Armada, 197 F. Supp. 2d 833 (E.D. Mich.



























2002).See Grandbouche v Clancy (1987, CA10) 825 F2d 1463, 8 FR Serv 3d 1037, § 6[b].Equities of cases clearly disfavored defendant who offered false affidavit in support of motion to vacate depart.

Boron v West Texas Exports, Inc. (1988, SD Fla) 680 F Supp 1532.

[Top of Section]

[END OF SUPPLEMENT]

III. Sufficiency of particular reasons for inaction

A. Inaction of party[3]

§ 7[a] Doubt or confusion as to court's jurisdiction—Good cause established

[Cumulative Supplement]It was concluded that good cause existed for setting aside an entry of default in each of the ensuing Rule 55(c)

decisions, where it appeared that the defendant's failure to file a timely answer may have been attributable to doubt or confusion regarding the court's jurisdiction over himself personally or over the case.

In Phillips v Flynn (1974, DC Pa) 61 FRD 574, an action arising out of an automobile collision in which juris-diction was alleged to have been obtained over the defendant, a resident motorist who could not be located for per-sonal service, by substituted service in accordance with the Pennsylvania long-arm statute, it was shown that the de-fendant's default might have been attributable to a mistaken impression that the court lacked jurisdiction over him, since he could not have discovered from searching the court records that a copy of the suit papers had been served upon the Secretary of the Commonwealth, as required for effective substituted service. Specifically, it appeared that at all times prior to the defendant's filing of a petition to set aside the default, almost one year after the entry thereof and 11 months after a general appearance had been made in his behalf by the attorney for his insurer, docket entries relative to the case which were maintained in the court clerk's office inaccurately failed to reflect that the Secretary of the Commonwealth had been served. Observing that a default entry should be set aside under Rule 55(c) where there is good cause for the default, the defendant has a meritorious defense, and the motion for relief is made within a reasonable time, the court indicated that although it was regretable that the defendant did not move with more dis-patch to set aside the default following the general appearance, the delay was excusable since there could have been some reliance upon the inaccurate docket entries. Accordingly, granting the defendant's motion to set aside the de -fault entry, the court did not consider it controlling that the defendant's insurer had, at a relatively early stage of the litigation, received reliable unofficial notice that the Secretary of the Commonwealth had in fact been served. Em -phasizing that the insurer had not passed this information on to the defendant, since it had elected not to defend him, the court said that it would be unfair to penalize the defendant for the conduct of the insurer.

In Brown v Weschler (1955, DC Dist Col) 135 F Supp 622, it was shown that after the plaintiff had instituted an action in a municipal court for the District of Columbia against a United States marshal, two of his deputies, and three other defendants, the marshal and the deputies were successful in having the case removed to the United States District Court for the District of Columbia. Although a notice of the removal was given to the municipal court, as well as to the plaintiff, that court, presumably being of the opinion that the case had not been removed as to the three remaining defendants, allowed them to file answers and placed the proceeding on its trial calendar. The three re -maining defendants failed to file answers in the District Court, apparently believing that it lacked jurisdiction in view of the pendency of the municipal court action, and the plaintiff accordingly moved for the entry of a default. Observing that it would not enter a default if it appeared that such would eventually have to be set aside on a motion filed under Rule 55(c), the District Court stated that although it was of the opinion that the suit had been removed from the municipal court as to all the defendants, the fact that the three defendants in question had been permitted to proceed in the municipal court after the date of the removal indicated that they must have had "valid reasons" for failing to respond, and warranted the conclusion that there would be good cause for opening any default entry under











Rule 55(c). It was observed in further support of this conclusion that the plaintiff would suffer only a slight delay if the action were allowed to proceed to trial in the District Court, and that even this delay could be obviated by a mo-tion to advance the case to an earlier point on the calendar. The District Court accordingly overruled the plaintiff's motion for the entry of defaults, on the condition that the three defendants file a formal answer within 10 days.

Comment

Rule 55(a) provides that the clerk of the court shall enter a default when the fact of default is made to appear by affi -davit or otherwise. Therefore, since the nondefaulting party need not request an entry of default from the court itself, it may be questioned why the court in the Brown decision entertained such a motion. Compare A. C. Samford, Inc. v United States (1963, DC Ga) 226 F Supp 72, infra § 16[6], where the court passed upon a motion to disallow a re-quest for the entry of a default. The answer to this question resides in the fact that although Rule 55(a) gives the court clerk authority to enter a default, it is generally recognized that this is not a limitation on the power of the court to entertain requests for such action, and to deny them in its discretion if the circumstances so warrant (see cases cited in 10 Wright & Miller, Federal Practice & Procedure, Civil § 2682).


Cases:

Lack of personal jurisdiction provided good cause for setting aside the entry of default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Marcantonio v. Primorsk Shipping Corp., 206 F. Supp. 2d 54 (D. Mass. 2002).

Motion pursuant to Rule 55(c) to set aside entry of default based upon lack of personal jurisdiction, supported by affidavits and fully argued by parties will be treated as initial motion to dismiss; thus, defendant is entitled to re-lief pursuant to Rule 55(c) where his failure to plead is not willful, his contention that District Court lacks personal jurisdiction is clearly meritorious defense and where it does not appear that plaintiff would be prejudiced as result of granting of motion to set aside entry of default. Lichtenstein v Jewelart, Inc. (1982, ED NY) 95 FRD 511, 35 FR Serv 2d 951.

Even if threshold requirements generally applicable to motions for relief from judgment were applicable to mo-tion for relief on ground court lacked personal jurisdiction, they were met by defendant; motion was timely where filed within six months of default judgment, lack of jurisdiction was both meritorious defense and exceptional cir -cumstance, and any prejudice to plaintiff was result of its tactical decision to sue defendant in forum where jurisdic-tion was questionable. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(e)(4) Vinten v. Jeantot Marine Alliances, S.A., 191 F. Supp. 2d 642 (D.S.C. 2002).

Lack of jurisdiction provides meritorious defense to action and provides good cause for setting aside entry of default. Hale v McCall (DC Tenn) 425 F Supp 396.

Where court lacks jurisdiction of subject matter of action at time of entry of default, it will be vacated. Rose v Elliott (DC Tenn) 70 FRD 422.

Employer's purported affiliate established good cause justifying setting aside of entry of default in employee's civil rights action; purported affiliate did not simply ignore complaint, even though it did not believe itself to have been properly served, but instead sought to ascertain from employee when and how she thought service had been ac-complished, employee agreed to allow unspecified amount of additional time for filing purported affiliate's response and did not notify purported affiliate of her intent to seek default, purported affiliate raised meritorious defense, and employee was not be prejudiced by inability to propound discovery to purported affiliate. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Hayek v. Big Brothers/Big Sisters of America, 198 F.R.D. 518 (N.D. Iowa 2001).

"Good cause" standard that governs vacating entry of default is same standard that governs vacating a default judgment. Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. Franchise Holding II, LLC. v. Huntington Restau-rants Group, Inc., 375 F.3d 922 (9th Cir. 2004).

Court granted defendant's motion to set aside entry of default where defense counsel had mistakenly assumed that complaint had been filed in state court, and therefore misjudged time he had to answer, defense counsel had in -dicated that defendants had meritorious defenses to action, defense counsel had responded to entry of default very





























soon after it was accomplished, and where it did not appear that plaintiff would be prejudiced by setting aside de-fault, except insofar as it would have to then defend on merits. Walter E. Heller Western, Inc. v Seaport Enterprises, Inc. (1983, DC Or) 99 FRD 36, 36 FR Serv 2d 1059.

[Top of Section]

[END OF SUPPLEMENT]

§ 7[b] Doubt or confusion as to court's jurisdiction—Good cause not established

In the following decision, inaction induced by the defendant's belief that the court lacked jurisdiction over his person in view of the invalidity of a purported service of process, was deemed inexcusable and held not to warrant the opening of an entry of default in application of the good cause standard of Rule 55(c).

Although it was held that the defendant corporation was not validly served with process when the complaint and summons were delivered to a switchboard operator at a telephone-answering service used by the corporation on a fee basis, the court in Paramount Packing Corp. v H. B. Fuller Co. (1960, DC Pa) 190 F Supp 178, nevertheless con-cluded that in view of the fact that the corporation's failure to file an answer was attributable to a deliberate choice by its officers to ignore the service of process because of its supposed invalidity, good cause warranting the opening of an entry of default was not established under Rule 55(c). Rejecting defense counsel's argument that although the action of the defendant's officers in ignoring the process may have represented poor judgment, it was at most excus-able neglect justifying the relief sought, the court emphasized that the officers in question had consciously chosen a course of action which they felt was tactically advantageous in the resistance of the plaintiff's claim. Denying the motion to set aside the default, the court observed that a defendant who choses to ignore a purported service of process does so at his own risk.

Comment

The reader may question whether the court reached a correct result in the Paramount Packing Corp. decision, since the invalidity of the service of process upon the defendant would presumably mean that the court lacked personal ju-risdiction over him. Federal courts have recognized that a judgment by default for want of appearance is "void," and thus subject to being vacated in accordance with Rule 60(b)(4), if the rendering court lacks the requisite jurisdiction over the defendant (see cases cited in 6 Moore's Federal Practice ¶55.09). In particular, see Schwarz v Thomas (1955) 95 App DC 365, 222 F2d 305, where a default judgment was declared void, and was vacated even in the ab-sence of a showing of a meritorious defense, since it was established that the summons and complaint had been served upon an agent of the nonresident defendant who was not authorized to receive service of process. Arguably, the same result should prevail where the relief sought is the opening of an entry of default under Rule 55(c). In this respect, see Kadet-Kruger & Co. v Celanese Corp. of America (1963, DC Ill) 216 F Supp 249, where the court, ob-serving that the default "was conditioned" upon its having jurisdiction over the defendants, proceeded to vacate an entry of default because it was shown that the extraterritorial service of process upon the defendants was not autho-rized by statute and that, accordingly, there was no personal jurisdiction over them. There is, however, authority for the view that the very act of allowing a default to take place constitutes a waiver of the right to object to a lack of personal jurisdiction. In this connection, see Bavouset v Shaw's of San Francisco (1967, DC Tex) 43 FRD 296, where it was held that a defendant, by failing to file a timely answer and thus allowing the case to proceed to default, had waived his right to assert that the court lacked jurisdiction over his person. Note that Federal Rule 12(h) pro-vides in pertinent part that the defense of lack of jurisdiction over the person is waived "if it is neither made by mo -tion under this rule nor included in a responsive pleading or an amendment thereof." Since a defendant in default has not filed a timely Rule 12 motion or responsive pleading, it would indeed seem that any objection to personal juris -diction is thereby waived and hence cannot operate as a bar to the entry of a default.

§ 8[a] Failure to receive notice—Of action itself














[Cumulative Supplement]There are, of course, a number of situations in which a court may obtain jurisdiction to proceed against a defen-

dant without his having actual knowledge of the pendency of the suit. For example, such may occur where the de -fendant has not noticed a valid service by publication or where he has for some reason not been informed that per -sonal service has been made upon his authorized agent or "some person of suitable age and discretion residing" at his usual place of abode, as provided in Rule 4(d)(1). While it may not deprive the court of jurisdiction, however, the failure of a defendant to receive notice of a proceeding against him has been regarded by several courts as a basis for setting aside a default entry in application of the good cause standard of Rule 55(c).

In United States v $3976.62 in Currency (1965, DC NY) 37 FRD 564, the claimant, whose money and automo-bile were seized pursuant to a warrant issued on a complaint charging him with violations of the federal tax laws, sought to set aside a default entered in a subsequent proceeding declaring the property in question forfeited because of its intended use in the business of accepting wagers without having paid a tax thereon and without having regis-tered, in violation of 26 U.S.C.A. §§ 4411, 4412, and 4421. A general notice of the forfeiture proceeding had been published in a newspaper, directing all claimants to the property to appear on a certain date. In support of his mo-tion, the claimant averred that he first learned of the details of the forfeiture proceeding roughly 5 months after the date indicated, and that with the exception of the newspaper publication, which he did not see and would not have understood had he seen it, he received no direct or indirect prior notice that he was required to appear on that date to protect his interests. Observing that a motion to set aside a default entered in a forfeiture proceeding is governed by Rule 55(c), and that good cause must be established in order to warrant relief thereunder, the court, without further elaboration, ordered the default set aside to afford the claimant an opportunity to promptly litigate the question of forfeiture.

See Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395, infra § 9, where relief was granted under Rule 55(c) to a defendant whose default may have been at least partially attributable to the fact that his wife, who had just recovered from a serious illness and was further preoccupied with recent flood dam -age to her home, neglected to deliver the summons and complaint to the defendant after being served with them.

Similarly, where the West Virginia state auditor, having received service of process as the statutory attorney in fact for the defendant foreign corporation, failed to satisfy his duty to send the suit papers to the defendant's last fur-nished address by registered mail, instead forwarding the documents by ordinary mail to an earlier address, and the evidence clearly established that the summons and complaint were never received by the defendant, it was held that a default judgment should be vacated pursuant to Rule 60(b), and that good cause existed for setting aside the entry of default under Rule 55(c), in Huntington Cab Co. v American Fidelity & Casualty Co. (1945, DC W Va) 4 FRD 496. Although acknowledging that service of process upon the state auditor was sufficient to confer jurisdiction, the court emphasized that the defendant did not in fact receive any knowledge of the pending suit, that the loss of the process papers in the mail was a circumstance entirely beyond its control, and that it consequently was deprived of the opportunity of defending itself through no fault of its own. It was further pointed out that the instant motion al -leged the existence of a meritorious defense to the action, and that under the circumstances, no injustice would result to the plaintiff by allowing a full hearing and decision on the merits.

In Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231, an action against a registered representative of a stock brokerage alleging that he violated both state and federal securities laws in connection with handling the plaintiff's account, it was shown that service had been made upon the Georgia Secretary of State as the statutory agent of the defendant, and that although this official had previously been informed that the defendant had changed his address, copies of the summons and complaint were nevertheless mailed to the former address. As a result, the defendant claimed, he did not receive copies of the suit papers until about a week after a default had been entered. Observing that the Secretary of State's mistake as to the proper address made it understandable that the summons and complaint were delayed in reaching the defendant, that the defendant had alleged a meritorious defense to the action, and that the plaintiff would not be unduly prejudiced by an opening of the default, the court granted the de -fendant's motion for Rule 55(c) relief. The court was disturbed by the fact that the defendant had delayed fully 19 days after receiving the suit papers before moving under Rule 55(c), and it was noted that the plaintiff had con-tended that a demand for a jury trial in the case had been mailed to the defendant at his correct address within a day after the complaint was filed. It was said, however, that all things considered, it could not be concluded that the de -


















http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR4&FindType=L&ReferencePositionType=T&ReferencePosition=SP_e07e0000a9f57


fendant acted with such indifference as to justify a default judgment.And in Rooks v American Brass Co. (1959, CA6 Mich) 263 F2d 166, the court granted a motion to set aside

both a default entry and a default judgment upon a showing that the defendant, the vice president of a corporation who was being sued on his guaranty of a corporate note, was never personally served with process and in fact had no knowledge of the action. The summons and complaint were served upon the defendant's wife at a time when he was suffering from meningitis, and it was shown that she did not advise the defendant thereof both in view of this illness and because she mistakenly believed that the papers related to an involuntary bankruptcy proceeding which the plaintiff had instituted against the corporation. She instead turned the summons and complaint over to the treasurer of the corporation, who alleged in explanation of his own inaction that he too believed that the litigation related to the corporation alone, particularly in view of the fact that the sum alleged to be due was the same as that sought in the bankruptcy proceeding. Concluding that the defendant had established good cause for setting aside the default entry under Rule 55(c), as well as several grounds for vacating the default judgment in accordance with Rule 60(b), the court emphasized that the erroneous impression entertained by both the wife and the corporate treasurer as to the bearing of the suit upon the defendant constituted a mere mistake of fact, and that although the corporate treasurer was possibly inadvertent or negligent in failing to give the matter proper attention, such neglect was excusable in view of the absence of carelessness on the part of the defendant himself. It was likewise emphasized that the plain-tiff had admitted that he would suffer no prejudice if the default were opened, that the answer tendered by the defen -dant stated a meritorious defense, and that the sum involved in the controversy was substantial, namely $60,000. In connection with the latter point, the court observed that matters involving large sums of money should not be deter-mined by default judgments if it can reasonably be avoided.


Cases:

Setting aside entry of default, based on finding that defendant was not properly served with summons and com-plaint, was not abuse of discretion in action for alleged unfair housing practices and discrimination. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Cyril v. Neighborhood Partnership II Housing Development Fund, Inc., 124 Fed. Appx. 26 (2d Cir. 2005).

Entry of default would be set aside where defendants could establish lack of proper service and that claim was frivolous and subject to dismissal on merits. Kearney v New York State Legislature (1984, ED NY) 103 FRD 625, 40 FR Serv 2d 1000.

In action brought by preparatory academy against wood products company, stemming from allegedly defective treatment of roof trusses, responsibility for default judgment rested with company rather than counsel, and thus com-pany's motion to set aside entry of default would be properly denied; even though company acted promptly in filing instant motion, and may have had meritorious defense to action, company's registered agent failed timely to forward summons and complaint to company, and academy would have been prejudiced by delay in building repair. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Colleton Preparatory Academy, Inc v. Beazer East, Inc., 219 F.R.D. 105 (D.S.C. 2003).

Defendant failed to provide any evidence of mistake, inadvertence, surprise, or excusable neglect, and therefore motion for relief from default judgment was denied; record indicated that defendant had actual notice of plaintiff's suit nearly three months prior to judgment. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b)(1) Bricks, Inc. v. CME Housing Group, 209 F.R.D. 416 (W.D. Tenn. 2002).

In § 1983 action by prison inmate against corrections officer, district court lacked personal jurisdiction over of-ficer, requiring vacation of court's denial of officer's motion to set aside default judgment, on basis that underlying default judgment was void; service upon officer was never properly effected, inasmuch as service of complaint and summons was sent to officer's former address. 42 U.S.C.A. § 1983; 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b) Higgason v. Autterson, 49 Fed. Appx. 73 (7th Cir. 2002).

"Good cause" was shown for the court to set aside entry of default where the defendants in question had not been effectively served, and so it did not appear, by affidavit or otherwise, that any such defendant had failed to plead or otherwise defend as provided by the federal rules of civil procedure. 28 U.S.C.A. Fed. Rules Civ. Proc.
























Rule 55(a, c) Webster Industries, Inc. v. Northwood Doors, Inc., 244 F. Supp. 2d 998 (N.D. Iowa 2003).Failure to properly serve a defendant with process was "good cause" to set aside an entry of default. Fed.Rules

Civ.Proc.Rules 4, 55(c), 28 U.S.C.A. Koninklijke Philips Electronics N.V. v. KXD Technology, Inc., 245 F.R.D. 470 (D. Nev. 2007).

Defendant's failure to receive summons and copy of complaint sent to her address excused her default under Rule 55(c), where defendant was caring for sick relative at another location during pertinent period. Speidel v Bryan (1996, DC Or) 164 FRD 241.

Where defendant never receives summons and complaint, it is appropriate to vacate judgment by default. Fed. Rules Bankr. Proc. Rules 7055, 9024(b)(4), 11 U.S.C.A.; Fed. Rules Civ. Proc. Rules 55(c), 60(b)(4), 28 U.S.C.A. In re Olympia Holding Corp., 230 B.R. 623 (Bankr. M.D. Fla. 1999).

Good cause exists for vacatur of entry of default when the defendant pleads a failure to effect service by the plaintiffs. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Reading v. U.S., 506 F. Supp. 2d 13, 2007-2 U.S. Tax Cas. (CCH) P 50709, 100 A.F.T.R.2d 2007-5977 (D.D.C. 2007).

Good cause existed to set aside entry of default against government in taxpayer's suit for wrongful collection of taxes or for a tax refund; because taxpayer failed to serve the Internal Revenue Service (IRS), there was an error in effecting service and the government neglected to respond timely, and there was no indication that the government's delay was willful or that taxpayer would be prejudiced if the court set aside the default. Fed.Rules Civ.Proc.Rules 4(i), 55(c), 28 U.S.C.A. Bennett v. U.S., 462 F. Supp. 2d 35, 98 A.F.T.R.2d 2006-7887 (D.D.C. 2006).

[Top of Section]

[END OF SUPPLEMENT]

§ 8[b] Failure to receive notice—Of taking of default

[Cumulative Supplement]Under the particular circumstances presented in the ensuing decision, the failure of a party to receive notice that

a default would be entered against him was held to constitute good cause for setting aside the default under Rule 55(c).

In Sonus Corp. v Matsushita Electrical Industrial Co. (1974, DC Mass) 61 FRD 644, where the plaintiff corpo-ration was adjudicated a bankrupt after the instant action had been commenced and the defendants had filed an-swers, counterclaims, and requests for admissions and interrogatories, a default was entered against the plaintiff on the counterclaims, and a nonsuit was granted with respect to its claims, when it failed to respond to a subsequent or -der directing answers to the interrogatories and replies to the requests for admissions. It was shown, however, that although the plaintiff had received a copy of the memorandum and order directing answers to the interrogatories and admission requests, neither the plaintiff nor its counsel, as opposed to counsel for the trustee in bankruptcy, was given notice of the motion for this order, of the motion for default and hearing thereon, or of the court's action grant-ing the motion for default. Deeming this absence of notice conclusive, the court granted the plaintiff's petition to va-cate the entry of default under Rule 55(c). Emphasizing that it did not appear that the plaintiff or its counsel had any actual knowledge of the motions, hearing, and court action referred to, the court said that under the circumstances, it was satisfied that good cause existed for setting aside the default. As further support for this conclusion, the court pointed out that the plaintiff had asserted that it had valid defenses to the defendants' counterclaims.

Caution

The practitioner should be careful not to interpret the Sonus decision as authority for the broad proposition that relief should be granted under Rule 55(c) whenever it appears that the defaulting party was not given notice of the taking of the default and had no actual knowledge thereof. In the typical situation, namely, where an entry of default is sought following a defendant's failure to file a timely answer, there is simply no need for a "motion for default," and consequently for any sort of prior notice to the defendant. This is because Rule 55(a) permits a default to be entered










http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR4&FindType=L&ReferencePositionType=T&ReferencePosition=SP_17a3000024864

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR4&FindType=L&ReferencePositionType=T&ReferencePosition=SP_17a3000024864





















by the court clerk upon a simple showing of the fact of default "by affidavit or otherwise. " The Sonus court's recog-nition of the need for the procedural niceties of both a motion for default and a notice thereof is apparently traceable to the fact that a default was there being imposed as a sanction for disobedience of a discovery order. Specifically, at the time the case was decided, Rule 37(d) provided that upon a party's failure to serve answers to interrogatories, the court "on motion and notice" could impose various sanctions, such as "enter a default judgment." Whether this lan-guage should have been interpreted to require "motion and notice" upon the mere entry of a default as a sanction is unclear at best, but the Sonus court would appear to have so interpreted it. In any event, Rule 37(d) was amended in 1970 to provide that upon a party's failure to respond to interrogatories, the court may simply "on motion" make such orders in regard to the failure as are just. The elimination of the "notice" requirement of former Rule 37(d) seemingly has the effect of making the motion contemplated therein an ex parte one. Arguably, therefore, notice to the defaulting party is unnecessary even in the precise situation presented in the Sonus decision, and the basic ratio -nale of that decision accordingly lacks current validity.


Cases:

Good cause existed to set aside entry of default, where there was no claim that plaintiff would be prejudiced from reopening the judgment, defendant had a meritorious defense, and no culpable conduct of defendant led to en-try of default; although it appeared that defendant was negligent in the handling of its mail, it was also possible that defendant did not receive the numerous documents allegedly sent from plaintiff or the court. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Simmons v. Ohio Civil Service Emp. Assoc., 210 F.R.D. 207 (S.D. Ohio 2002).

[Top of Section]

[END OF SUPPLEMENT]

§ 8[c] Failure to receive notice—Other notice



Cases:

Default judgment should have been set aside as to defendant who did not receive notice of withdrawal of coun-sel and of court order directing him to either retain new attorney or to contact court by set date to arrange to proceed without assistance of counsel. Canal Ins. Co. v Ashmore (1995, CA8 Ark) 61 F3d 15.

[Top of Section]

[END OF SUPPLEMENT]

§ 9. Misunderstanding of complaint or other suit document

[Cumulative Supplement]Under the following circumstances, an entry of default was set aside in application of the good cause standard

of Rule 55(c) where it appeared that the defendant's failure to file a timely answer was attributable, at least in part, to the fact that he misunderstood the complaint or some other suit document, and consequently did not realize that a le-








gal proceeding had been instituted against him.Having been convicted of armed robbery on the basis of the allegedly perjured testimony of two police officers

and a private citizen, the plaintiff brought an action against these individuals under the Civil Rights Act, 42 U.S.C.A. § 1983, in Schartner v Copeland (1973, DC Pa) 59 FRD 653, affd without op (CA3 Pa) 487 F2d 1395, where it was shown that neither of the police officers comprehended the legal import of the plaintiff's rambling 14-page pro se complaint, which was handwritten on yellow paper, one officer testifying that he thought it was a "crank" letter and the other alleging that he did not realize its significance because it did not look "official" and the summons attached to it did not appear to have a seal. When one of the officers contacted the chief of police regard-ing the document, moreover, he was told not to worry about it because the department "Law Bureau" would handle the matter, and he communicated these assurances to the other officer. In the case of the private citizen, it was shown that the complaint had been served on his wife, who had just recovered from a serious illness and was further preoccupied with recent flood damage to her home, and who consequently never turned the suit papers over to her husband. When the citizen later began receiving other pro se documents filed in the case, he thought they repre-sented "correspondence" from the plaintiff and thus did not appreciate their meaning. Upon finally discussing these documents with the district attorney who had participated in the criminal trial, moreover, the citizen was told that they were of no consequence and that no action was necessary. Observing that relief from the entry of a default may be granted under Rule 55(c) when the defaulting party has a meritorious defense, the nondefaulting party would not be prejudiced by the reopening, and the default was not the result of inexcusable neglect or a willful act, the court said that it was clear that the first two of these requirements had been met but that it represented a close question whether the defendants' had shown the requisite good cause. Observing that the failure of the defendants to take any action whatsoever until approximately 10 months after the service of the complaint, upon receiving notice of the en -try of default, certainly constituted evidence of neglect which could be characterized as inexcusable under normal circumstances, the court nevertheless concluded that there were mitigating factors rendering that neglect excusable. Specifically, pointing to the rambling nature of the pro se complaint, the court said that the defendants could hardly be blamed for misunderstanding its import. It was additionally emphasized that each of the defendants had relied upon the advice of someone in a position of authority that no action need have been taken. Granting the defendants' motion to set aside the default, the court further pointed out that a contrary conclusion would result in extreme in -equity, since the defendants would be held liable for extensive damages even though the alleged constitutional depri-vations were not proven and the statute of limitations had run upon the cause of action.

Additionally, see Rooks v American Brass Co. (1959, CA6 Mich) 263 F2d 166, supra § 8[a], an action against a corporate officer on his guaranty of a corporate note, in which relief was granted under Rule 55(c) upon a showing that the defendant never in fact acquired knowledge of the suit after the summons and complaint had been served upon his wife. Both the wife and another corporate officer, to whom she subsequently delivered the suit papers, failed to appreciate upon reading the complaint that it related to an independent action against the defendant, rather than to an already pending bankruptcy proceeding against the corporation.


Cases:

In action against police department, department's motion to set aside default would be granted pursuant to Rule 55(c) where police chief testified that he was not aware that complaint, which was served by certified mail, was valid legal process in that it had not been served by law enforcement official and was similar to series of prior com-munications sent to police department by plaintiff, where there existed meritorious defense to action, and where there was no indication that plaintiff would be prejudiced by delay. Wayland v District Court, Biddeford (1985, DC Me) 104 FRD 91.

See United States v One Parcel of Real Property with Bldgs., Appurtenances, & Improv., etc. (1988, DC RI) 682 F Supp 694, § 13[a].

Defendant showed good cause to set aside default by stating in affidavit that he did not realize he had been for -mally served with process rather than merely provided with copies of paperwork; moreover, plaintiffs failed to show prejudice resulting from delay, and defendant had meritorious defense. Canfield v VSH Restaurant Corp. (1995, ND

















NY) 162 FRD 431.Default entered against insurance company in favor of insurance claimant after company received "courtesy

copy" of filed complaint, but was not served with complaint, was set aside; even if default had been properly en -tered, claimant had lulled company into sense of false security, insurance company had numerous meritorious de -fenses, and claimant would not be prejudiced by having default set aside. Apache Nitrogen Prods., Inc. v Harbor Ins. Co. (1993, DC Ariz) 145 FRD 674, 26 FR Serv 3d 360.

[Top of Section]

[END OF SUPPLEMENT]

§ 10[a] Ignorance of requirements relative to answer—Need for answer

[Cumulative Supplement]A defendant's alleged failure to appreciate that the complaint initiating the suit required an answer on his part

was held not to constitute good cause for opening an entry of default in the ensuing Rule 55(c) case.In Titus v Smith (1970, DC Pa) 51 FRD 224, a personal injury action, one of the reasons offered by the defen-

dant in explanation of his failure to respond was that he did not realize that he had to retain counsel and file an an -swer to the complaint after his insurance company had disclaimed coverage and returned the suit papers to him. Concluding that this explanation did not establish the requisite good cause for setting aside a default entry, the court pointed out that the insurance company's disclaimer of coverage had specifically advised the defendant to take steps to "protect his interests." Moreover, observing that the defendant's Rule 55(c) motion had been filed nearly one year and 10 months following the entry of default, and roughly one year and 5 months after he had received a letter from the plaintiff's counsel advising him thereof, the court emphasized that during the latter period the defendant had failed to respond to four additional letters from the plaintiff's counsel explaining that it was most urgent that he con-tact that attorney's office. Saying that these repeated notifications would have caused any reasonable man to hesitate, to question, and to seek legal advice, the court held that the defendant's failure to act over such a protracted period of time had to be characterized as gross and inexcusable neglect warranting a denial of his Rule 55(c) motion, espe-cially since it could not be said that the plaintiff would suffer no prejudice if the default were opened.


Cases:

Creditor was not granted default judgment for pro se debtor's 2-year failure to file answer; debtor's other actions evidenced intent to fulfill obligations as litigant, creditor would not be prejudiced by late answer, and debtor had presented meritorious defense. Fleet Factors Corp. by its Ambassador Factors Div. v Roth (1994, BC SD NY) 172 BR 777.

See Newhouse v Probert (1985, WD Mich) 608 F Supp 978, § 6[a].Defendant in products liability action established good cause for setting aside entry of default, as default con-

sisted of good faith, relatively brief default in filing of initial pleading, caused by poor communication between de -fendant and its insurer, and was cured within one day once defendant learned of its mistake, defendant had meritori-ous defense, and plaintiff would not suffer significant prejudice. Fed.Rules Civ.Proc.Rule 55(a, c), 28 U.S.C.A. Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 40 Fed. R. Serv. 3d (LCP) 695 (8th Cir. 1998).

Denial of motion to vacate default judgment is proper where defendant only sent letter to clerk of District Court in response to complaint and summons in face of suggestions by plaintiff's counsel to retain attorney and to file timely answer to avoid default. Wilson v Moore & Associates, Inc. (CA9 Hawaii) 564 F2d 366.

Defendant's failure to answer complaint was culpable, so as to preclude setting aside default judgment entered against defendant in injunction action, where defendant's claim of ignorance was contradicted by complaint's plain language directing him to answer summons. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. U.S. v. Nalls, 177 F.R.D.


















696 (S.D. Fla. 1997).

[Top of Section]

[END OF SUPPLEMENT]

§ 10[b] Ignorance of requirements relative to answer—Need for filing of answer with court

A layman undertaking his own defense may well be unaware of the requirements of Rule 5 and consequently not know that the "answer" called for by the process papers must be filed with the court as well as served upon the plaintiff's counsel. In other words, in the absence of specific directions to the contrary, he may simply assume that the term has been used in its literal sense and believe that he is complying with the law by sending a mere informal response to the plaintiff's attorney. In the ensuing decision, where a default resulted from just such a misunderstand -ing, the court held that there was good cause for granting relief under Rule 55(c).

In Dalminter, Inc. v Jessie Edwards, Inc. (1961, DC Tex) 27 FRD 491, where the court applied the good cause standard of Rule 55(c) to set aside a default judgment, it was shown that the defendant corporation, upon being served with a summons specifying that it was "required to serve upon. . . plaintiff's attorney. . . an answer to the complaint," believed it was complying with this direction when it sent a timely letter to the attorney stating that its "answer to the complaint" was that the plaintiff must have served the wrong party, since the defendant had not re-ceived its charter until several months after the acts complained of had occurred. Observing that a party seeking to set aside a default judgment must show good cause under Rule 55(c), as well as some ground for relief specified in Rule 60(b), the court concluded that the defendant had established both good cause and Rule 60(b) mistake or excus-able neglect, since it did all that was literally dictated by the summons and, as a layman not familiar with the Federal Rules, could not have known that its "answer" was required to be filed with the court or court clerk.

§ 11. Reliance on erroneous advice not to respond

[Cumulative Supplement]As the following decisions demonstrate, the courts have not always found good cause warranting relief under

Rule 55(c) where the default was alleged to have occurred as a result of the defendant's reliance upon the erroneous advice of others not to file an answer or take similar responsive action.

On the other hand, a default allegedly attributable to the defendant's reliance upon advice not to take responsive action was held inexcusable, in Titus v Smith (1970, DC Pa) 51 FRD 224, a personal injury action in which the de-fendant moved to set aside the default approximately 1 year and 10 months after it had been entered, and roughly one year and 5 months after receiving a letter from the plaintiff's counsel notifying him thereof. Emphasizing that during the latter period the defendant had failed to respond to four additional letters from the plaintiff's counsel ex-plaining that it was most urgent he contact that attorney's office, and expressing the view that a default entry should be set aside only if relief is requested within a reasonable time, the court concluded that the wilful and deliberate failure of the defendant to act over such a protracted period constituted gross and inexcusable neglect warranting a denial of his Rule 55(c) motion. In reaching this determination, the court refused to find merit in several reasons proffered by the defendant in explanation of his inaction, one of which was that the other defendant, his college-edu-cated son, upon whom he relied because he himself had only 3 years of formal education, had advised him not to worry about the complaint because it would be "taken care of." Regarding this explanation as insufficient to estab -lish the requisite good cause, the court observed that it did not require a college education for the defendant to real-ize the seriousness of the proceedings against him. It was said that the repeated notifications from the plaintiff's counsel would have caused any reasonable man, regardless of his academic achievements, to hesitate, to question, and to seek legal advice. Further pointing out that it could not be said that the plaintiff suffered no prejudice as a re -sult of this inaction, since any such delay would impede discovery efforts in view of the fact that memories fade and documents are often lost or destroyed, the court accordingly held that it would be unjust to set aside the default.

On the one hand, attention is directed to Schartner v Copeland (1973, DC Pa) 59 FRD 653, supra § 9, an action














under the Civil Rights Act in which defaults were set aside under Rule 55(c) upon a showing that the defendants, two police officers and a private citizen who had allegedly presented perjured testimony against the plaintiff in an armed robbery prosecution, had both misunderstood the legal import of certain pro se suit documents and relied upon the advice of someone in a position of authority that no responsive action was necessary. Specifically, the po -lice officers had received the assurance of their chief of police that the department's "Law Bureau" would handle the matter, while the private citizen had been told by the district attorney who participated in the armed robbery prose-cution that documents filed in the instant proceeding were of no consequence and could be ignored.

Additionally, see Pioche Mines Consol., Inc. v Dolman (1964, CA9 Nev) 333 F2d 257, cert den 380 US 956, 13 L Ed 2d 972, 85 S Ct 1081, 1082, a stockholders' derivative action alleging mismanagement by a corporate officer in which the court, without specifically referring to Rule 55(c), observed in dictum that the trial judge had not abused his discretion in refusing to set aside a default entered pursuant to Rule 37(d) after the defendant had deliberately re-fused to appear at a deposition hearing. It appeared that the defendant may have had his own reasons for being reluc-tant to give a deposition, not the least of which was his firm belief that the litigation had no merit, but in what seemed to be an attempt to justify his absence, it was a suggested that he had relied upon the advice of counsel that an appearance was unnecessary because of the filing of a motion to quash the notice of deposition. Noting that this advice represented a misinterpretation of the law, since to hold otherwise would allow a proposed deponent to evade a deposition indefinitely by the simple expedient of filing such a motion, the court added that in any event the instant failure to appear represented but one sample of a course of persistent conduct by the defendant constituting wilful disobedience of court processes. Characterizing the failure to appear as a direct flaunting of judicial authority under the attendant circumstances, the court concluded that it was inexcusable.


Cases:

In forfeiture action filed by government, trial court properly refused to set aside default judgment entered in ac -tion, notwithstanding claimant's arguement that he relied upon erroneous advice from local counsel that resulted in missed filing deadline, since reliance, if any, was unreasonable inasmuch as concept of time limitations is basic one and should have been reviewed with skepticism. United States v Proceeds of Sale of 3,888 Pounds Atlantic Sea Scallops (1988, CA1 RI) 857 F2d 46, 12 FR Serv 3d 57.

Defendant did not establish that his conduct leading to default judgment was not culpable for purposes of vacat-ing the judgment, based on his assertion that he relied on attorney's mistaken advice in failing to timely answer sum-mons and complaint; moreover, given defendant's extensive prior litigation experience, his contention that he relied on his attorney's mistaken advice or misunderstood his attorney's advice and believed that he need not file a response to the summons and complaint strained credulity. Fed.Rules Civ.Proc.Rule 60(b), 28 U.S.C.A. U.S. v. Scharring-hausen, 226 F.R.D. 406 (S.D. Cal. 2005).

Debtor's reliance on erroneous legal advice obtained free of charge over telephone to effect that he need not re-spond to complaint to determine dischargeability did not constitute excusable neglect for failing to file answer, and motion to set aside judgment was denied. Presidential Fin. v Raynard (In re Raynard) (1994, BC ND Ga) 171 BR 699.

Reliance upon representations made by opposing counsel may mitigate intentional failure to respond to com-plaint, so as to support setting aside of entry of default or default judgment, if district court is convinced that such re-liance was made in good faith. Fed. Rules Civ. Proc. Rules 55(c), 60(b)(1), 28 U.S.C.A. International Painters and Allied Trades Union and Industry Pension Fund v. H.W. Ellis Painting Co., Inc., 288 F. Supp. 2d 22 (D.D.C. 2003).

[Top of Section]

[END OF SUPPLEMENT]

§ 12. Absence from jurisdiction following service of process














http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0000708&FindType=Y&ReferencePositionType=S&SerialNum=1965202927&ReferencePosition=1082

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0000708&FindType=Y&ReferencePositionType=S&SerialNum=1965202927&ReferencePosition=1082




[Cumulative Supplement]An entry of default was set aside for good cause shown in the following decision, where it was alleged that the

failure of the defendant to file a timely answer was attributable to his somewhat compelled absence from the district following service of process.

Where the defendant, after having been granted an extension of 30 days in which to plead, failed to answer within the time specified but nevertheless moved to set aside a default 10 days after it was entered and only one day after learning from the plaintiffs thereof, alleging that he had until that date been absent from Puerto Rico due to the Christmas holidays and sickness in his family, the court in Eisler v Stritzler (1968, DC Puerto Rico) 45 FRD 27, cit-ing the substantial sums involved in the case and the timeliness of the defendant's motion, held that good cause ex -isted for setting aside the default entry under Rule 55(c). Noting that the complaint demanded a judgment in the amount of $85,000, and that a counterclaim filed by the defendant shortly after his motion to set aside the default en-try sought an award of $511,281, the court indicated that litigation of such magnitude should be determined on the merits, especially where, as here, the defendant has acted immediately upon acquiring knowledge of the entry of de -fault. In further support of its conclusion, the court emphasized that the defendant had alleged a complete defense on the merits, and that the plaintiffs would not be substantially prejudiced by the setting aside of the default.


Cases:

In civil action brought by United States pursuant to Surface Mining Control and Reclamation Act, seeking to re-cover civil penalties assessed against defendants and in which defendant filed third-party complaint, entry of default against third-party defendant would be set aside and proposed answer accepted, where third-party defendant showed good cause for delay in preparation of answer by stating that president of third-party defendant was only individual with personal knowledge of case and that president had been out of state most of time after service of third-party complaint. United States v Hill (1982, ED Tenn) 533 F Supp 810.

See Federal Trade Com. v Packers Brand Meats, Inc. (CA8) 562 F2d 9, § 13[b].

[Top of Section]

[END OF SUPPLEMENT]

§ 13[a] Other specified reasons—Good cause established

[Cumulative Supplement]Entries of default were set aside for good cause shown in the following Rule 55(c) decisions, where the defen-

dants failed to respond for specified reasons other than those discussed in §§ 7- 12, supra.In Broder v Charles Pfizer & Co. (1971, DC NY) 54 FRD 583, where the complaint apparently alleged that the

defendant detective agency and a codefendant had engaged in a conspiracy violative of the Sherman Act, the court granted the agency's motion to set aside an entry of default, which alleged as grounds for such relief that counsel had not been retained until about 20 days after the complaint was served, and that because of the vague and general alle -gations made by the plaintiff in the complaint, it had not been possible to prepare and file a timely response. Empha-sizing that the agency had placed a notice of this motion in the mail approximately 2 weeks after the time to answer had expired, and that the trial judge had subsequently granted a summary judgment favorable to the agency's alleged coconspirator, the court expressed the opinion that good cause existed for setting aside the default entry under Rule 55(c). Specifically, it was said that it would be unjust to deprive the agency, because of a mere 2 week delay, of the right to tender an issue under a complaint already dismissed as to a codefendant for lack of merit.

In Kulakowich v A/S Borgestad (1964, DC Pa) 36 FRD 185, a longshoreman's action against a shipowner for injuries sustained while the vessel was docked at Camden, New Jersey, the defendant's Rule 55(c) motion to set













aside a default entry alleged that first notice of the claim was received when service was made upon certain Philadel-phia agents who had represented the defendant's interests while the ship was in Camden; that through a fortuitous se-ries of events the suit documents were referred to New York City where they were shuttled between various agents of the defendant; and that the documents finally ended up in the office of an agent for the defendant's insurance un -derwriter, who contacted the plaintiff's counsel in order to secure an extension of time in which to file an answer in May of 1964, roughly 4 months after the default had been entered. Explaining that a default, as distinguished from a default judgment, may be set aside "for good cause shown," the court observed that a motion for relief under Rule 55(c) is usually granted where no substantial prejudice will result to the plaintiff, and the defendant, not being guilty of any gross neglect, claims the existence of a meritorious defense. Concluding that the defendant had satisfactorily demonstrated that its failure to file a responsive pleading was not attributable to any such gross neglect, the court proceeded to open the default after finding that the plaintiff would not be prejudiced thereby, and that there was a potentially meritorious defense to the action.

In Meyer v Lavelle (1974, DC Pa) 64 FRD 533, 29 ALR Fed 1, an action under the Civil Rights Act, 42 U.S.C.A. § 1983, alleging that the defendant, a state trial judge presiding over a suit against the instant plaintiff, had violated the plaintiff's constitutional rights in connection with various decisions and rulings made in the course of the latter proceeding, it was shown that the judge allowed a default to be entered against him after advising the court that he would not file an appearance because to do so would place him in the position of a litigant and force his dis -qualification in the pending state case. Granting the judge's Rule 55(c) motion to set aside the default entry, and not-ing that such relief is appropriate where there is good cause for the default, the defaulting party has a meritorious de-fense, and the motion to open the default is made within a reasonable time, the court held that the judge's explana-tion regarding his need to avoid assuming an adversarial role relative to the plaintiff while the state court proceeding was pending established the requisite good cause. Noting further that the judge had made a reasonable showing that he had a meritorious defense, the court emphasized that he had moved to set aside the default approximately 6 weeks after its entry, only 5 weeks after the state trial had ended, and promptly upon the expiration of the time within which the plaintiff might have filed posttrial motions or an appeal.

In Rasmussen v W. E. Hutton & Co. (1975, DC Ga) 68 FRD 231, a stock brokerage, charged with violating both state and federal securities laws in connection with handling the plaintiff's account, alleged in support of a Rule 55(c) motion that the suit papers did not come to the attention of its proper officers until several weeks after a de -fault had been entered. The summons and complaint had been served upon the Georgia Secretary of State as the de -fendant's statutory agent, and it was shown that they were promptly mailed to the defendant's office on Wall Street in New York City. At the time the suit papers were received, however, the defendant was undergoing a corporate liquidation which entailed vacating the Wall Street office. The internal confusion resulting from this situation was alleged to constitute a good cause for the defendant's failure to file a timely answer. The court said that it did not find the defendant's reasons for being in default impressive, noting that a business is not relieved of the responsibil -ity of keeping track of its mail when it changes addresses, and that internal confusion resulting from a reorganization does not free a business of the duty to answer complaints. It was emphasized, however, that when the issue is whether to set aside a default under Rule 55(c), rather than vacate an existing default judgment, it is not absolutely necessary that the neglect or oversight causing the delay be excusable. The court accordingly granted the defendant's motion, pointing out that it had not willfully disregarded court processes, that it had alleged a meritorious defense to the action, and that the plaintiff would not be prejudiced by a reopening of the default.


Cases:

Default for failure to answer in breach of contract and warranty action would be set aside where defendant of-fered adequate justification for its failure, which appeared not to be willful, presented two potentially meritorious defenses of lack of personal jurisdiction and product misuse, promptly moved to vacate five days after entry of de -fault, and caused plaintiff prejudice only in the form of delay in obtaining judgment. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Lucerne Farms v. Baling Technologies, Inc., 208 F.R.D. 463 (D. Me. 2002).
















Even though failure to file timely response was due to misfiling of plaintiff's complaint by one of defendant's clerks, defendant was allowed to set aside default judgment under Rule 55(c) provided defendant paid fine to plain-tiff's counsel of $600 where defendant possessed potentially meritorious defenses, defendant's lack of action was not motivated by bad faith, plaintiff was not unfairly prejudiced by delay, and claim of $2 million was substantial. Kryzak v Dresser Industries (1987, DC Me) 118 FRD 12.

In action to rescind purchase of boat, magistrate would recommend granting defendant's motion under Rule 55(c) to set aside default since magistrate found that defendant's mistaken belief as to who would defend action amounted to "good cause," and since there was no showing that plaintiff would be prejudiced by setting aside de-fault. Brown v Boats Unlimited, Inc. (1989, DC RI) 128 FRD 23.

Trial court may set aside default where party presents good reason for default and existence of meritorious de-fense. Thus, in forfeiture action under 21 U.S.C.A. § 881(a)(7), in which court would treat magistrate's order striking defendant's notice of claim as entry of default and would treat defendant's motion for reconsideration under "good cause" standard of Rule 55(c), court would set aside magistrate's order and would reinstate defendant as party since defendant, having shown understandable confusion concerning nature of his interest in property at time forfeiture proceedings were instituted, provided sufficiently compelling reason why he failed to respond to government's mo-tion to strike his notice of claim, and since defendant showed existence of meritorious defense. United States v One Parcel of Real Property with Bldgs., Appurtenances, & Improv., etc. (1988, DC RI) 682 F Supp 694.

In civil rights action against numerous parties alleging violation of eight federal statutes, two articles of Consti-tution, and eight Constitutional amendments, defaults of three defendants would be set aside where defaults were not wilful and other requirements for relief (lack of prejudice to plaintiff; existence of meritorious defense) were satis-fied. One defendant defaulted due to mistaken belief that she had additional time to respond to complaint; other two defendants defaulted due to their attorneys having attempted to review substantial documentary evidence relating to plaintiff's claims. Fariello v Rodriguez (1993, ED NY) 148 FRD 670.

In malicious prosecution action against county district attorney's office, vacatur of default entered for untimely response was warranted; delay in response was not willful, but resulted from denial of coverage by defendant's in-surance carrier and subsequent need to find alternative counsel due to conflict of interest, setting aside entry of de-fault would not cause prejudice to plaintiff, and defendants presented evidence of meritorious defenses, including absolute prosecutorial immunity. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Niepoth v. Montgomery County Dist. Attorney's Office, 177 F.R.D. 111 (N.D.N.Y. 1998).

Defendant who acknowledged that he had been served with summons and complaint but that, because of ex -treme work-related pressure, he simply forgot to notify his attorneys and forgot about action until attorneys informed him that they had heard default had been entered, had shown good cause to set aside such default, where plaintiff's counsel conceded that no substantial prejudice would result if default were set aside, where, although defendant acted in unbusinesslike fashion, his conduct did not amount to gross neglect, where his counsel had set forth possi -bly meritorious defense, and where no legitimate reason could be found for failure of plaintiff's counsel to inform his adversary that action had been commenced or that default on defendant's part seemed imminent. Morris v Charnin (1980, SD NY) 85 FRD 689.

Defendant's failure to answer complaint was not the result of culpable conduct, for purpose of defendant's mo-tion to set aside default, where defendant did not act willfully or in bad faith in failing to answer the complaint inas-much as court ordered that time to answer complaint be extended until further order. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Choice Hotels Intern., Inc. v. Pennave Associates, Inc., 192 F.R.D. 171 (E.D. Pa. 2000).

Good cause under Rule 55(c) was shown where defendants acted diligently in attempting to retain attorney but failed to obtain one in time to answer complaint because of dispute with insurance carrier over coverage. Smith v. City of Chester, 152 F.R.D. 492 (E.D. Pa. 1994).

In action by inmate against U.S. Attorney General and others alleging that defendants improperly classified him as central monitoring case and refused to grant him hearing in violation of his due process rights, magistrate is cor -rect in lifting notice of default entered by clerk since defendants' 5-day delay in responding to inmate's claim is not great, defendants did not receive documents they needed to support response until day before their response, and there is no allegation nor proof of prejudice actually suffered by inmate as result of delay. Becker v Smith (1982, MD Pa) 554 F Supp 767.

See Display Equation, Inc. v D.C. Industries, Inc. (1990, WD Pa) 134 FRD 124, § 6[a].District Court did not abuse its discretion in setting aside default entered in action by inmate against Supervisor




















http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=21USCAS881&FindType=L&ReferencePositionType=T&ReferencePosition=SP_36f10000408d4







of Records of state penitentiary where supervisor had filed no pleading within 5 weeks of receipt of notice of suit, due to erroneous assumption that Attorney General would automatically undertake her defense. Watson v Herndon (1979, CA4) 27 Fed Rules Serv 2d 917.

Even though 3-day delay in filing answer was fault of party and not counsel, as complaint was lost between party's office and insurer's office, entry of default was set aside; mistake was rectified as soon as it was discovered, plaintiff was not prejudiced by delay, and case should be decided on merits. Rasmussen v American Nat'l Red Cross (1994, SD W Va) 155 FRD 549.

Final judgment, which bore many characteristics of default judgment, would be set aside where defendants showed meritorious defense and absence of fair opportunity to present that defense and where defendants' absence from proceeding resulted from confluence of number of unusual circumstances: defendants had been informed by their attorney that no action would be required of them unless and until he contacted them, attorney subsequently "withdrew" from case without informing defendants of his withdrawal, attorney determined he would not appear at trial without informing defendants of that decision, and, although notice of trial was forwarded to defendants, they did not in fact receive it. Seven Elves, Inc. v Eskenazi (1981, CA5 Tex) 635 F2d 396, 30 FR Serv 2d 1649.

District Court was correct in setting aside default judgment entered against diocese of Orlando, Florida on basis that church diocese was not suable entity, as lack of suable entity was good cause justifying setting aside entry of de-fault judgment. Bonaventure v Butler (CA5 Fla) 593 F2d 625.

Defendant's belief that claim against it had been settled and that plaintiff had agreed to dismissal of suit justified defendant's failure to answer in timely manner. Riley v Allstate Ins. Co. (1996, ED La) 166 FRD 374, summary judgment gr, claim dismissed sub nom Riley v Transamerica Ins. Group (ED La) 923 F Supp 882.

Default judgment against defendant would not be considered to be due to gross neglect on part of defendant and would be set aside where defendant had obtained 20-day extension to answer, had diligently sought aid of counsel, had died less than three weeks after default judgment had been entered, attorney who was eventually hired filed mo-tion to set aside default less than two weeks after being retained, and plaintiff would not be in any worse position if default had not been set aside. Robinson v Griffith (1985, WD La) 108 FRD 152.

District court did not abuse its discretion in setting aside entry of default against state bar officials in applicant's action alleging that officials unconstitutionally deprived him of admission to state bar, where there was no intent to thwart judicial proceedings, officials raised meritorious defense of qualified immunity, and there was no prejudice to applicant as result of officials' sixteen-day delay in filing their answer. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Lawrence v. Chabot, 182 Fed. Appx. 442, 2006 FED App. 0347N (6th Cir. 2006).

Default entered on complaint that had not been properly served could be set aside without consideration of fac-tors ordinarily necessary to find good cause. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 2003 FED App. 0288P (6th Cir. 2003).

Order vacating default judgment in favor of insured in insured's action for indemnification against liability in -surer was warranted, where insurer's failure to file timely answer was not willful, but resulted from an honest mis -take due to misinformation from district court as to when return of service was filed, insurer had meritorious defense to indemnification action, and insured was not prejudiced by vacation of default judgment, since insurer moved to vacate immediately upon discovering default and motion was filed less than 30 days after date the answer to com-plaint was due. 28 U.S.C.A. Fed. Rules Civ. Proc. Rules 55(c), 60(b) Weiss v. St. Paul Fire and Marine Ins. Co., 283 F.3d 790, 62 U.S.P.Q.2d (BNA) 1195 (6th Cir. 2002).

Default judgment against student loan borrower was grossly unfair and inequitable, and any neglect of proceed -ing by borrower was excusable, such that borrower was entitled to relief from judgment; lender was not prejudiced by any undue delay in adjudicating its claim, where default judgment was entered only three weeks after borrower was served with complaint, borrower alleged complete meritorious defense in which she claimed that the debt had been paid in full and the account closed more than ten years before, and default was not caused by any culpable con-duct by borrower, where borrower's answer to the complaint was sent certified mail on the last day for filing an an -swer under the rules, lender received answer by fax on the same day, answer was received by the trial court only one day late, there was no evidence of intent by borrower to delay or hinder proceedings, borrower was unrepresented by counsel and so may have believed she timely filed the answer, and borrower showed diligent and good faith attempts to resolve the merits. Fed.Rules Civ.Proc.Rule 12(a)(1)(A), 28 U.S.C.A.; Fed.Rules Civ.Proc.Rule 60(b)(1, 6), 28 U.S.C.A. U.S. v. Cagle, 235 F.R.D. 641 (E.D. Mich. 2006).

Municipalities, lessees, and various individuals charged by landowners with conspiracy to deprive them of their





http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR12&FindType=L&ReferencePositionType=T&ReferencePosition=SP_a5e1000094854




















constitutional rights were entitled to set aside default against them, where landowners were not prejudiced by setting aside of default, appearances were filed as soon as counsel were retained, defendants asserted meritorious defenses, and there was no indication that defendants' failure to timely file their appearances or answers was intentional act to thwart judicial proceedings or reckless disregard of such proceedings. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Raimondo v. Village of Armada, 197 F. Supp. 2d 833 (E.D. Mich. 2002).

In action against Internal Revenue Service (IRS), seeking damages for tortious acts allegedly committed by IRS, and claiming money allegedly due from IRS, default entered by clerk would be set aside pursuant to Rule 55(c), Federal Rules of Civil Procedure, since, pursuant to 26 U.S.C.A. § 7422(f)(1) and (2, United States, and not IRS, is proper party in matters involving collection of federal income tax, and plaintiff failed to have proper service of process made on Attorney General as required by Rules 4(d)(4) and (5), Federal Rules of Civil Procedure. Scott v IRS (1985, ED Tenn) 622 F Supp 537, 85-2 USTC ¶9796, 56 AFTR 2d 85-6140.

District court did not abuse its discretion in vacating default entered against two defendants; defendants took quick action to cure the default, showed good cause based on improper service, and told the court they planned to pursue a meritorious defense by joining motion to dismiss. Chapman v. Stricker, 81 Fed. Appx. 77 (7th Cir. 2003).

See United States v Di Mucci (1989, CA7 Ill) 879 F2d 1488, 14 FR Serv 3d 175, § 6[a].Where party reasonably relied on retained counsel, and discharged counsel when he learned of his neglect and

promptly notified court of intent to retain new counsel, good cause for relief from default existed. New Field Inter-national Sales, Inc. v Salem (1986, ND Ill) 116 FRD 215, 6 FR Serv 3d 1352.

Former prison employee's ignorance and misinterpretation of Illinois scheme for representation in state pris-oner's § 1983 action against prison employees constituted good cause for his failure to timely enter his appearance and to respond to the complaint, as element of motion to set aside entry of default against employee. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Christiansen v. Adams, 251 F.R.D. 358 (S.D. Ill. 2008).

Individual defendant was entitled to set aside default entered against him, where defendant's failure to timely re-spond to complaint was excusable, in view of his alleged belief that corporate codefendants would take care of his defense and his prompt action upon learning otherwise, defendant's assertion of meritorious defenses, and absence of prejudice to plaintiff given that merits of case would be heard regardless of defendant's participation and that case was in early stages of litigation. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Mackie v. U.S. Mfg., Inc., 219 F.R.D. 639 (N.D. Iowa 2004).

State was allowed to set aside entry of default under Rule 55(c) where plaintiffs suffered no prejudice, state had meritorious defense to plaintiffs' constitutional challenge, state sought timely relief from default, and state had acted under good-faith belief that answer filed was timely. O'Connor v Nevada (1994, CA9 Nev) 27 F3d 357, 94 CDOS 4205, 94 Daily Journal DAR 7827, amd (CA9 Nev) 94 CDOS 5326, 94 Daily Journal DAR 9766 and reprinted as amd (CA9 Nev) 94 CDOS 5115, 94 Daily Journal DAR 9419.

Defendant's conduct is "culpable," for purposes of determining propriety of vacating default or default judg-ment, if he has received actual or constructive notice of the filing of the action and intentionally failed to answer. Fed. Rules Bankr. Proc. Rules 7055, 9024, 11 U.S.C.A.; Fed. Rules Civ. Proc. Rules 55(c), 60(b), 28 U.S.C.A. In re Ultrasonics, Inc., 269 B.R. 856 (Bankr. D. Idaho 2001).

Computer kiosk supplier demonstrated good cause for setting aside the entry of default on school food-service company's claim against the supplier for breach of warranty; entry of default was not the result of any culpable con -duct by supplier, but rather appeared to have resulted solely from supplier's inadvertence, supplier presented a meri-torious defense, and discovery could be reopened on the claim if needed, given that trial of case was still some two months off. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. School-Link Technologies, Inc. v. Applied Resources, Inc., 471 F. Supp. 2d 1101 (D. Kan. 2007).

Purchaser was entitled to vacatur of entry of default judgment against it in vendor's action for breach of contract for the sale of real property; failure of purchaser to respond in a timely manner to the complaint was not willful, pur-chaser acted promptly to vacate the default once counsel was obtained, a meritorious defense was asserted, and ven-dor would have suffered no prejudice if the default was vacated. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. USA Flea Market, LLC v. EVMC Real Estate Consultants, Inc., 248 Fed. Appx. 108 (11th Cir. 2007).

Where contractor's failure to respond was due to unintentional mistake of contractor thinking that codefendant's insurance company would represent contractor's interests in litigation, contractor had shown that it might have meri-torious defense, and any prejudice suffered by subcontractor could be ameliorated by requiring contractor to pay subcontractor's costs in obtaining default judgment, default judgment in favor of subcontractor would be set aside.































http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR4&FindType=L&ReferencePositionType=T&ReferencePosition=SP_20c3000034ad5

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=26USCAS7422&FindType=L&ReferencePositionType=T&ReferencePosition=SP_9daf00009de57






James Electric Co. v Cougar Enterprises, Inc. (1986, DC Dist Col) 111 FRD 324, 4 FR Serv 3d 87.

[Top of Section]

[END OF SUPPLEMENT]

§ 13[b] Other specified reasons—Good cause not established

[Cumulative Supplement]The court refused to open an entry of default pursuant to Rule 55(c) in each of the ensuing cases, where the rea-

son for the defaulting party's inaction was different from any of those treated in §§ 7- 12, supra.In Nelson v Coleman Co. (1966, DC SC) 41 FRD 7, an action for property damage sustained in a fire allegedly

caused by a defect in a product manufactured by the defendant corporation, it appeared that although the failure of the defendant to file a timely answer was principally attributable to its general counsel's lack of diligence, which was deemed inexcusable, counsel had received the suit papers somewhat late through the inadvertence of the defendant's South Carolina district manager, who had delayed forwarding the summons and complaint until 8 days after they had been served upon him, simply because he assumed that time was not of the essence in view of the age of the claim and the fact that the complaint had been filed some 11 months prior to the date of service. In denying the de-fendant's Rule 55(c) motion to open a default entry, the court said, inter alia, that it was not impressed with the ex -planation offered by the district manager for his own delay, since the fact that he had been personally served by the marshal was sufficient to put him on notice that the suit papers were important and should have been handled ac-cordingly.

In United States v Topeka Livestock Auction, Inc. (1975, DC Ind) 392 F Supp 944, a conversion action against an auctioneer who allegedly sold certain livestock in which the plaintiff had a perfected security interest, a default was entered in favor of the auctioneer on a third party complaint against the debtors and owners of the livestock when they failed to file an answer within a 3-month period following the service of process. Denying a motion to set aside the default entry, the court observed that although even mere inadvertence may constitute good cause warrant-ing relief under Rule 55(c), the third party defendants had not established a sufficient excuse for the default and had likewise failed to satisfy any of the other basic requirements for such relief, namely, quick action to correct the de-fault and the establishment of a potentially meritorious defense to the action. Regarding the third party defendants' contention that they were not served with a copy of the original complaint at the time they were served with the third party complaint and summons, the court said that such a claim went to the sufficiency of the pleadings and furnished no excuse for a failure to answer. The only possibly valid excuse for the default was said to reside in the third party defendants' claim that at the time they were served with the third party complaint they were actively negotiating with the original plaintiff in an attempt to settle the underlying debt. Noting that an exhibit which was never included in the record had been cited in support of this claim, however, the court added that it did not in any event constitute an adequate excuse for the simple reason that ongoing settlement negotiations cannot justify a failure to file an answer. Moreover, emphasizing that the third party defendants had, in addition to their initial 3-month delay, waited almost a full month after the default had been entered before moving to set it aside, the court held that they had not taken the requisite quick action to correct the default. It was further determined that a mere conclusory statement by the third party defendants that they had a meritorious defense did not satisfy the requirement that a party seeking relief from a default entry claim a meritorious defense with specificity.


Cases:

Substantial grounds existed for court to reject defendant's characterization of itself as being without fault, and court could reasonably find that defendant's default was not excuseable, where (1) defendant admittedly was aware of lawsuit and admittedly received 2 notices of default, but its president did nothing other than write to obviously









inattentive counsel, and (2) defendant had requested its attorney both to notify it when answer had been filed and to send it copy of answer, but despite fact that counsel had not supplied copy of answer as requested, defendant and de -fendant's president did nothing until after receiving copy of final judgment 16 months later. Taylor v Boston & Taunton Transp. Co. (1983, CA1 Mass) 720 F2d 731.

Where defendant took no action for nearly 2 months even after it received summons and complaint, did not take action to extend time to answer or retain counsel, and let 3 weeks pass before filing Rule 60(b) motion after receiv-ing notice of default judgment, defendant did not show good cause under Rule 55(c), and no relief from default judgment was granted. Wayne Rosa Constr. v Hugo Key & Son (1994, DC Me) 153 FRD 481.

Former clients failed to show "good cause" to vacate the entry of default on law firm's account stated claim; clients' default was willful because they ignored the summons and complaint for over seven months without satisfac-tory explanation, law firm could be prejudiced if the default was set aside since increased delay would allow clients to divert funds and preclude firm from successfully enforcing its judgment against clients, and clients failed to present a meritorious defense. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Todtman, Nachamie, Spizz & Johns, P.C. v. Ashraf, 241 F.R.D. 451 (S.D. N.Y. 2007).

In action to determine priority of patents where one of two defendants filed formal abandonment of contest prior to decision granting priority to plaintiff, defendant's motion to reopen case under FRCivP 55(c) was denied, since evidence which defendant sought to introduce was not newly discovered, statement by defendant's counsel in open court did not draw any distinction between affirmative and defensive use of its patent, and record did not estab-lish that result would have been different if moving party had participated fully in proceedings. Bell Tel. Laborato-ries, Inc. v Hughes Aircraft Co. (DC Del) 73 FRD 16.

Defendant's unfamiliarity with the legal process did not excuse failure to respond to summons and complaint, and, thus, defendant lacked good cause for setting aside default. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Life Ins. Co. of North America v. Monroe, 236 F.R.D. 255 (D. Md. 2006).

In action to recover on note guarantees, fact that judgment is not for sum certain does not require that default judgment be set aside since sum can be made certain by calculation through reference to terms of note and schedule of payments. Federal Deposit Ins. Corp. v Spartan Mining Co. (1983, SD W Va) 96 FRD 677, 35 FR Serv 2d 1601, affd (CA4 W Va) 731 F2d 1134, 15 Fed Rules Evid Serv 809.

District Court's failure to give taxpayers a particularized statement of deficiencies and an opportunity to cure those defects after denying their motion to dismiss government's action to collect income tax deficiency did not con-stitute good cause to set aside default judgment against taxpayers, where taxpayers had already been given an oppor-tunity to cure the defects and file a proper answer. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. U.S. v. Hassell, 82 Fed. Appx. 372, 92 A.F.T.R.2d 2003-7222 (5th Cir. 2003).

In adversary action in bankruptcy for fraudulent transfers, debtor's son failed to demonstrate "good cause" within meaning of Rule 55(c) for court to grant him relief from default where, among other reasons, trial court had properly determined that son's failure to answer was willful; when court finds intentional failure of responsive plead-ings there need be no other finding. Re Dierschke (1992, CA5 Tex) 975 F2d 181.

In civil action, trial court properly exercised discretion in rejecting defendant's "good cause" argument and in entering order of default against him, notwithstanding defendant's argument that he had somehow been misled by opposing counsel, since defendant had been explicitly directed by court to file responsive pleading within ten days, and as attorney, defendant knew what was expected of him and had no excuse for not following express instruction of court. Federal Sav. & Loan Ins. Corp. v Kroenke (1988, CA5 La) 858 F2d 1067, 12 FR Serv 3d 1223.

Mere stipulation between parties as to factual matters relating to issue of good cause did not provide good cause sufficient for court to set aside entry of defendant's default. Gray v John Jovino Co. (1979, ED Tenn) 84 FRD 46.

District Court is within its discretion where it refuses to set aside default on basis of defendant's failure to sub-mit answer where defendant's showing of "good cause" consisted of assertion that it was attempting to control and limit expenses of litigation and therefore requested counsel to delay filing of pleading and where it is shown that plaintiff is not prejudiced by delay. Breuer Electric Mfg. Co. v Toronado Systems of America, Inc. (1982, CA7 Ill) 687 F2d 182.

Corporate defendant's failure to claim certified mail from its registered agent and its difficulties "connecting" with its counsel did not establish good cause for vacating default judgment; moreover, defendant did not even state that it had a meritorious defense to the action. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Trustees of Constr. In-dustry Welfare Fund of Cent. Ill. v. Rawdin Concrete Const., Inc., 237 F.R.D. 414 (C.D. Ill. 2006).































Neither default judgment nor refusal to amend said judgment entered by district court against defendants was abuse of its discretion since such excuses as misplaced legal research, corporate inability to finance additional legal research, president of corporation's change of residence causing inability to consult with his counsel, and inability of counsel to prepare response after six months were given to respond were insubstantial excuses. Federal Trade Com. v Packers Brand Meats, Inc. (CA8) 562 F2d 9.

Internal communications breakdown and lack of a system for shepherding complaints through proper litigation process did not afford good cause for setting aside default entered against corporate defendant, especially consider-ing that defendant received second chance to avoid default judgment, and that defendant failed to respond to com-plaint for approximately five months, a long delay which risked causing serious prejudice to plaintiffs's claims. Heaton v Bonacker & Leigh (1997, MD Ala) 173 FRD 533, 38 FR Serv 3d 1398.

Defendant did not have "good cause" for its failure respond to complaints in timely fashion, as required to sup -port its motion to set aside entry of default; defendant was provided with notice of status as third-party defendant in patent infringement action, and defendant in declaratory judgment action on several occasions before being served, and decided to ignore lawsuits and attempt to directly negotiate a licensing agreement with plaintiff patent holders, only retaining counsel after negotiations failed. Fed.Rules Civ.Proc.Rules 4(h), 12(a)(1)(A), 55, 28 U.S.C.A. Insitu-form Technologies, Inc. v. AMerik Supplies, Inc., 588 F. Supp. 2d 1349 (N.D. Ga. 2008).

Defendants, the Palestinian Interim Self-Government Authority (PA) and the Palestine Liberation Organization (PLO), deliberately chose not to answer complaint in action, under the Antiterrorism Act (ATA), alleging their re-sponsibility for a school bus bombing in the Gaza Strip which killed one American and injured another, and there -fore they failed to show good cause to set aside entry of default. 18 U.S.C.A. § 2333; Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Biton v. Palestinian Interim Self-Government Authority, 239 F.R.D. 1 (D.D.C. 2006).

[Top of Section]

[END OF SUPPLEMENT]

§ 14[a] Unexplained inaction—Good cause established

[Cumulative Supplement]Without specifying what reason, if any, had been offered by the defendant in explanation of his failure to re-

spond on time, the court in each of the ensuing cases concluded that there was good cause for granting relief under Rule 55(c).

In Bedard v Consolidated Mut. Ins. Co. (1970, DC Puerto Rico) 313 F Supp 1020, an action against an insurer for injuries sustained in an accident on insured property, it was shown that the defendant made a timely appearance before the court for the purpose of soliciting an extension of 60 days in which to answer or otherwise plead, and was granted an extension of 30 days. While the defendant failed to respond within this time period, its answer was filed within 3 days thereof and only 2 days after the plaintiff had secured an entry of default. Entertaining what was con -sidered to be a motion by the defendant to set aside the default entry, the court observed, without describing the pre-cise reason for the delay, that an examination of the record disclosed that the defendant had not been grossly negli-gent in failing to file a timely answer. It was emphasized that the answer was only a few days late and that consider-ing the defendant's prior appearance for the purpose of obtaining an extension of time in which to plead, its actions did not demonstrate any intentional lack of diligence. Concluding that the record established nothing more serious than excusable neglect, the court, in the exercise of its discretion, ordered the default set aside for "good cause shown" pursuant to Rule 55(c).

Observing that the entry of a default judgment may be set aside for good cause shown under Rule 55(c), the court in Mannke v Benjamin Moore & Co. (1967, CA3 Pa) 375 F2d 281, without explaining the reason for the de-fendant's tardiness, concluded that the trial judge in a personal injury action did not abuse his discretion in opening a default judgment against the defendant and permitting the case to proceed to trial, which resulted in a judgment in his favor. It was said only that there was no discoverable harm to the plaintiff by reason of the defendant's failure to file his answer until 2 days after it was due, and that the ends of justice would appear to have been satisfied by a trial on the merits.














http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR12&FindType=L&ReferencePositionType=T&ReferencePosition=SP_a5e1000094854

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000600&DocName=USFRCPR4&FindType=L&ReferencePositionType=T&ReferencePosition=SP_f383000077b35





Similarly, stating that Rule 55(c) should be liberally construed in order to provide relief from the onerous conse-quences of a default, the court granted motions to set aside default entries in Johnson v Harper (1975, DC Tenn) 66 FRD 103, observing only that certain affidavits submitted along with the motions reflected that there was good cause for the failure of the defendants to file timely answers. In further support of this holding, the court noted that the plaintiffs sought damages totalling $6,250,000, that answers were filed with the clerk of the court only 1 day af -ter the defaults had been entered, and that the plaintiffs had shown no prejudice resulting from the delay.

And emphasizing that the defendant state had moved to set aside the entry of default within 6 days thereof and less than 2 months following commencement of the action, that an affidavit accompanying the motion demonstrated that the state's delay was due to mere inadvertence, and that it did not appear that relief from the default would sub-stantially prejudice the plaintiff, the court in Boyer v State (1972, DC Wis) 55 FRD 90, without detailing the partic-ular averments of the affidavit, concluded that there was good cause for granting the state's motion under Rule 55(c), especially in view of the principle that any doubt should be resolved in favor of setting aside defaults so that cases may be decided on their merits.


Cases:

Bankruptcy Court abused discretion in failing to consider whether petitioner's default was willful and whether petitioner had meritorious defense; because default did not appear to be willful, petitioner had at least two meritori -ous defense, debtor would not be prejudiced by vacation of default, and large money judgment had been entered against petitioner, default judgment was vacated. Rymsbran Continental Corp. v Euclid Hall Hous. Dev. Fund Co. (1995, ED NY) 177 BR 163.

Defendant in suit by provider of satellite television (TV) programming for theft of satellite transmissions was entitled to have default judgment vacated where she claimed she was not living at home during the time in question and there was no indication in the record that her default was willful, her defense was sufficiently meritorious to support vacatur of the default, and plaintiff did not show that it would be prejudiced by the Court's granting the mo -tion to vacate. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. DIRECTV, Inc. v. Hamilton, 215 F.R.D. 460 (S.D. N.Y. 2003), subsequent determination, 2003 WL 21664817 (S.D. N.Y. 2003).

Default judgment entered against plaintiffs' former employer would be set aside under FRCivP 55(c) where de-fendant filed answer 4 days late; delay in resolving matter would not prejudice plaintiff through loss of evidence or witnesses. Momah v Albert Einstein Medical Ctr. (1995, ED Pa) 161 FRD 304.

In action seeking damages from railroad for injury to personal property transported by railroad, denial of rail-road's motion to set aside entry of default and default judgment is abuse of District Court's discretion since there is no claim that plaintiff would be prejudiced from reopening judgment, railroad had meritorious defense, and since record does not support finding that railroad's default was willful. United Coin Meter Co. v Seaboard C.R. (1983, CA6 Mich) 705 F2d 839.

[Top of Section]

[END OF SUPPLEMENT]

§ 14[b] Unexplained inaction—Good cause not established

[Cumulative Supplement]The court refused to set aside an entry of default in each of the following Rule 55(c) decisions, where it ap-

peared that the party requesting such relief could offer no explanation for his failure to take timely responsive action.In Carignan v United States (1969, DC Mass) 48 FRD 323, where the plaintiff sought the return of a sum of

money allegedly taken from him by FBI agents at the time of his arrest, the government's motion to set aside an en-try of default under Rule 55(c) failed to explain exactly why it had allowed the default to occur, alleging only that





















there was another pending suit in which a different plaintiff claimed the same sum of money involved in the instant case and that a vacation of the default was requested so that the case at bar could be consolidated with this action. Holding that the motion failed to show "good cause" for setting aside the entry of default, the court emphasized that not only did it fail to be accompanied by an answer or otherwise show that the United States had a meritorious de -fense, but that it failed to assert that the government's delay in filing a responsive pleading was due to mistake, ex-cusable neglect, or any other reason which might understandably account for its failure to comply with Rule 12(a). To highlight the inadequacy of the Rule 55(c) motion, the court took judicial notice of the fact that the government had also failed to file a timely answer in the pending action sought to be consolidated with the instant case. It was said in this respect that it would be a meaningless gesture to set aside the default for no reason other than to permit the government to consolidate the instant action with an action in which it was likewise subject to default.

In Walker v Tilley Lamp Co. (1972, CA3 Pa) 467 F2d 219, cert den 409 US 878, 34 L Ed 2d 132, 93 S Ct 130, the court affirmed a default judgment rendered after the trial judge had denied a Rule 55(c) motion to vacate a de-fault entered against a garnishee. Apparently without explanation, the garnishee had failed to answer interrogatories in attachment for a period of 43 days, missing by 23 days the date when such answers were required. Although con-ceding that trial of the merits of a claim is preferable to disposition by default, the court, without further detailing the circumstances involved, held that upon a review of the record it could not say that the trial judge acted arbitrarily or unfairly in refusing to conclude that there was good cause for vacating the default.

It was likewise held that good cause did not exist for setting aside an entry of default in Seanor v Bair Transport Co. (1971, DC Pa) 54 FRD 35, where the defendants persistently refused to answer certain interrogatories submitted by the plaintiff even after being specifically ordered to do so by the court. Rejecting the defendants' contention that the default was improperly entered, since they had in fact answered all but two of the requested interrogatories, the court pointed out that the interrogatories had been outstanding for a period of over 8 months when the plaintiff moved to compel answers to them, and that in granting this motion, the trial judge had specifically directed that non-compliance with his order would result in a default entry. Denying the defendants' Rule 55(c) motion, the court fur-ther emphasized that they had received notice of the default entry fully 13 months before they moved to set it aside. Observing that while a motion to set aside a default need not be made within a specified period of time, as must a motion for relief from a default judgment, it must nevertheless be made with reasonable promptness, the court said that the long and unexplained delay of the defendants was extremely unreasonable and did not warrant the relief sought. In effect, the court said, an opening of the default entry at this late date would require the plaintiff to litigate his case on the issue of liability after relying for 13 months on the entry of default and while two of his most critical interrogatories remained unanswered.

See United States v Knox (1948, DC Tenn) 79 F Supp 714, where, without specific reference to Rule 55(c), the court denied a motion to set aside a default entry which alleged simply that the defendant was an inmate of a federal prison at the time the default was taken. Emphasizing that the opening of a default requires a demonstration that there was some reason why the defendant failed to plead within the time allotted by the Federal Rules, the court said that a mere showing of some alleged hindrance at the time the default was entered is not sufficient to justify relief.

And in Draisner v Liss Realty Co. (1954) 94 App DC 53, 211 F2d 808, cert den 348 US 877, 99 L Ed 690, 75 S Ct 115, the court refused to afford relief from the entry of a default where it appeared that despite numerous en-treaties by the plaintiff, the defendant took no action whatsoever to defend against the complaint until a judgment by default was rendered some 3 years after the default entry. Affirming this judgment, the court emphasized that the plaintiff's attorney had communicated with the defendant's counsel after the time for an answer had elapsed, offering an extension of time in which to plead; that the plaintiff again requested an answer 2 weeks later, as well as 4 months thereafter when the defendant was advised that a default would be applied for in the absence of an appear -ance; and that even after the default was entered, the plaintiff had written the defendant indicating his willingness to have the default set aside upon the filing of an answer within 5 days. Observing that it was difficult to imagine what additional steps were open to the plaintiff to induce the defendant to appear and plead, the court said that it could only conclude that the defendant's persistent default was wilful and intentional and that, accordingly, no Rule 55(c) good cause for setting aside the default entry could be shown.


















Cases:

In civil action, trial court properly refused to set aside default since it had considered and weighed relevant cir-cumstances and derived findings from permissible views of record; given lack of tenable excuse for failure to an -swer, length of time defendant delayed after problem surfaced, and court's supportable finding of prejudice to plain-tiff, decision to not set aside default was well within trial court's discretion. General Contracting & Trading Co., LLC v Interpole, Inc. (1990, CA1 NH) 899 F2d 109, 16 FR Serv 3d 174.

Puerto Rico electric power authority was not entitled to have default set aside so as to allow it to litigate merits of materials supplier's claims against it in action under statute furnishing material suppliers with direct action against owner of project for recovery of amount owed by project owner to contractor at moment of supplier's claim, except as to issue of amount properly owed by authority to supplier, given that authority did not establish good cause for its failure to file timely response to supplier's action, that authority lacked meritorious defense which could signifi -cantly change outcome of default judgment as to its liability, and that supplier, which was at advanced stage of its claim against remaining defendant, would be prejudiced by setting aside default and default judgment on liability is -sue. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A.; 31 L.P.R.A. § 4130. Brand Scaffold Builders, Inc. v. Puerto Rico Elec. Power Authority, 364 F. Supp. 2d 50 (D.P.R. 2005).

Defendant failed to establish that any exceptional circumstances or situations existed, as might warrant vacation of default judgment; defendant failed to dispute, explain, or address its failure to comport with the procedural rules of the Court, but only parroted language of rule. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b)(6) Bricks, Inc. v. CME Housing Group, 209 F.R.D. 416 (W.D. Tenn. 2002).

In action alleging fraudulent misrepresentation and breach of contract in sale of residence, trial court denied Rule 55(c) motion to set aside entry of default; at time court ruled on motion for default judgment, defendants had yet to file answer, presented no reason for court to refrain from entering judgment against them, and offered no ex -planation or justifiable excuse for their conduct; between entry of default and default judgment, several months passed without any action by defendants. Merrill Lynch Mortg. Corp. v Narayan (1990, CA7 Ill) 908 F2d 246, 17 FR Serv 3d 645.

If a default is the result of a defendant's culpable conduct, then a district court may refuse to set aside the default on that basis alone and need not consider the three factor test that is used to determine whether there was good cause for the default. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Advanced Communication Design, Inc. v. Premier Re-tail Networks, Inc., 186 F. Supp. 2d 1009 (D. Minn. 2002).

District court could deny motion to set aside default on basis that defendant engaged in culpable conduct in fail-ing to act for six months after learning that plaintiff had filed motion for entry of default. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Mood v. Global Diamond Resources, Inc., 125 Fed. Appx. 113 (9th Cir. 2005).

Defendant failed to establish good cause to set aside entry of default, where defendant failed to demonstrate that he had a good or acceptable reason for default, and his motion made no effort to demonstrate a meritorious defense; moreover, although defendant's answer alleged certain defenses, there was no factual elaboration which would per-mit court to judge whether the tendered defenses, if believed, would be meritorious. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Fink v. Swisshelm, 182 F.R.D. 630 (D. Kan. 1998).

Where suit papers served on bank were misrouted to wrong department within bank, department neglected to forward it to proper department, bank had no follow-up procedure for such instances, and bank's attorney never re-sponded to plaintiff's offer to extend time to answer, good cause for default was not established. Insurance Co. of North America v. Morrison, 154 F.R.D. 278 (M.D. Fla. 1994).

[Top of Section]

[END OF SUPPLEMENT]

B. Inaction of party's counsel

§ 15[a] Mistake as to necessity of answer—Good cause established






















http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1015876&DocName=PRSSTT31S4130&FindType=L





[Cumulative Supplement]In each of the ensuing decisions, the court applied the good cause standard of Rule 55(c) to open a default at-

tributable to the mistaken belief of defense counsel that his entry of an appearance in the action rendered an answer unnecessary.

Where the attorney who had formerly represented the defendant in a personal injury action mistakenly assumed that no answer was necessary after he had filed an appearance, and it was shown that the defendant's present counsel promptly moved to set aside a default upon learning thereof approximately one year after its entry, the court in Elias v Pitucci (1952, DC Pa) 13 FRD 13, concluded that good cause existed for opening the default entry under Rule 55(c), especially since it was established that there was a meritorious defense to the action.

Similarly, emphasizing that the defendant's attorney, who had entered his appearance in the case without notify-ing the plaintiff's counsel thereof, did not thereafter file an answer because of his honest but erroneous belief that the appearance had the same effect under the Federal Rules as it had under the Pennsylvania Rules of Procedure, namely, to make an answer unnecessary unless certain specific averments were to be denied, the court in Nunn v Reina (1958, DC Pa) 21 FRD 573, concluded that there was good cause for setting aside a default entry under Rule 55(c), since the failure to file an answer was obviously due to defense counsel's mere mistake, he asserted a defense on the merits, and he acted promptly to cure the mistake by filing the instant motion within 2 days after learning of the default entry. Relying upon Elias v Pitucci (1952, DC Pa) 13 FRD 13, supra, where a default was set aside upon a showing that counsel for the defendant entertained a similar misconception regarding the effect of his entry of an appearance, the court pointed out that defense counsel in the instant case had satisfied all of the conditions for relief set forth in that decision, and had in addition established that the plaintiff would not be prejudiced by a trial on the merits.


Cases:

In products liability action against Japanese auto manufacturer, court vacated default against manufacturer, where manufacturer had not been properly served and therefore could reasonably have believed it was under no obli-gation to answer. Lasky v Continental Products Corp. (1983, ED Pa) 97 FRD 716, 36 FR Serv 2d 1134, set aside (ED Pa) 97 FRD 717, motion den (ED Pa) 569 F Supp 1225, later proceeding (ED Pa) 569 F Supp 1227, 38 FR Serv 2d 1524, later proceeding (ED Pa) 38 FR Serv 2d 1032.

[Top of Section]

[END OF SUPPLEMENT]

§ 15[b] Mistake as to necessity of answer—Good cause not established

Under the following circumstances, a defense counsel's mistaken belief that an answer was unnecessary was de-clared inexcusable and held insufficient cause for setting aside an entry of default pursuant to Rule 55(c).

Additionally, while it involved an attorney's mistake as to the necessity of responsive action other than the filing of an answer, see Pioche Mines Consol., Inc. v Dolman (1964, CA9 Nev) 333 F2d 257, cert den 380 US 956, 13 L Ed 2d 972, 85 S Ct 1081, 1082, supra § 11, where it appeared that the defendant attempted to justify his failure to show up for a deposition hearing, as a consequence of which he suffered a default entry, by suggesting that he had simply relied upon the mistaken impression of his counsel that the filing of a motion to quash the notice of deposi -tion had the effect of rendering such an appearance unnecessary. In concluding that the trial judge did not err in re -fusing to set aside the default entry, however, the court did not seem to predicate its decision upon the inexcusability of the attorney's mistake. Instead, the rationale suggested was that the defendant was not to be exonerated precisely because he had been persistently disobedient of court processes throughout the proceeding.





















It was alleged by the corporate defendant, in Savarese v Edrick Transfer & Storage, Inc. (1975, CA9 Ariz) 513 F2d 140, an action for unpaid wages and commissions which was removed from a state court, that the trial judge had erred in refusing to set aside a default entry under Rule 55(c) because the record established that its failure to file a timely answer was due to mistake, inadvertence, or excusable neglect, namely, the existence of confusion between the defendant's Arizona counsel and its Wisconsin counsel. The Wisconsin attorney claimed that he assumed the Arizona counsel would file the answer forwarded to him when he "determined the time was proper," while the Ari-zona counsel alleged that he thought he was to file the answer only upon further instructions from the Wisconsin counsel. Observing that it might be tempted to hold that the trial judge acted too harshly if only these facts appeared, the court emphasized that the record as a whole suggested that the real reason that no answer was filed was a simple lack of understanding of the removal process on the part of the defendant's attorneys, resulting in a misconception as to the need for an answer following a removal. Specifically, the court pointed out that the actual basis for the inac-tion of the attorneys was revealed in the memorandum supporting the Rule 55(c) motion, where the position was taken that there is no requirement that a defendant proceed to answer or otherwise plead after a case has been re -moved. Observing that this position was patently erroneous, the court noted that Federal Rule 81(c) deals in detail with a defendant's duty to answer after removal, requiring such an answer within 5 days of the filing of the removal petition or within 20 days after receipt of the initial pleading by service or otherwise, whichever period is longer. In-dicating that the attorneys for the defendant were guilty of inexcusable professional neglect in failing to be aware of this provision, and observing that defendants in state court actions should not remove them to federal courts if they lack a basic understanding of federal procedure, the court accordingly concluded that there was no abuse of discre-tion in the denial of the defendant's motion to set aside the default.

§ 16[a] Mistake as to time for answer—Misconception as to date of service

[Cumulative Supplement]The court refused to conclude that there was good cause for opening an entry of default in the ensuing Rule

55(c) decision, where it appeared that the principal reason for the default was a mistaken impression on the part of counsel for the defendant that the date process had been served—from which the 20-day period for the filing of an answer would be computed—was later than it actually was.

In Nelson v Coleman (1966, DC SC) 41 FRD 7, an action for property damage sustained in a fire allegedly caused by a defect in a product manufactured by the corporate defendant, it was shown that although, through the in-advertence of an individual in one of the defendant's branch offices, its general counsel did not receive the summons and complaint until 12 days after they had been served, he himself delayed forwarding the suit papers to the defen-dant's local counsel. As a result, they were received by the local counsel only after the time for serving a responsive pleading had expired, and an answer tendered a few days later was in fact refused because a notice of default had been filed. The general counsel offered no actual explanation for his failure to take immediate action, but it appeared that he had been laboring under the mistaken impression that the date of service was 8 days later than it actually was. Denying the defendant's Rule 55(c) motion to set aside the default entry, as well as its Rule 6(b)(2) motion for an extension of time in which to answer, and observing that a party seeking relief from a default must show that he has a meritorious defense and that there is a reasonable explanation or excuse for his failure to act, the court said that although the defendant had shown the existence of a meritorious defense, it had failed to satisfy its burden of estab-lishing such mistake, inadvertence, or excusable neglect as would warrant relief from the default. Emphasizing that the defendant's general counsel was fully aware of the requirement that the complaint be answered within 20 days from its service, the court observed that in view of the date of the summons and the fact that he received the suit pa -pers by mail from a branch office which obviously had received them by mail from someone else, due care would have required that he take action immediately to determine the correct date of service. It was therefore concluded that there was no justifiable excuse for the general counsel's failure to act with more dispatch.


Cases:












Entry of default which does not involve default judgment is to be set aside for good cause shown, and such stan-dard is met where it appears that defendant's counsel was honestly mistaken in believing that he had 20 days in which to submit answer to amended complaint. Mosswood Oil & Gas Co. v Lauderman (1983, ND W Va) 38 FR Serv 2d 876.

Court granted defendant's motion for relief from entry of default, where defense attorney failed to file timely answer to plaintiff's complaint for reason that he did not believe that service of process was complete until return of service was filed at clerk's office, there was potentially tremendous damage exposure to defendant, and plaintiff would suffer no prejudice if entry of default was set aside. Savin Corp. v C.M.C. Corp. (1983, ND Ohio) 98 FRD 509, 36 FR Serv 2d 1308.

Defendant failed to show good cause to set aside default under FRCP 55(c) and 60(b)(1) because of counsel's inaccurate calendaring of due date, where counsel had received other indications, such as motion for default and supporting affidavit, that answer was overdue. Widmer-Baum v Chandler-Halford (1995, ND Iowa) 162 FRD 545.

[Top of Section]

[END OF SUPPLEMENT]

§ 16[b] Mistake as to time for answer—Reliance upon erroneous answer period specified in summons

It was acknowledged that Rule 55(c) good cause had been established in the following case, where defense counsel's failure to file a timely answer was shown to have been attributable to his reliance upon a longer but erro-neous answer period specified in the summons.

In A. C. Samford, Inc. v United States (1963, DC Ga) 226 F Supp 72, a tort action against both the United States and a corporation having a contract with it, the court applied the good cause standard of Rule 55(c) in grant-ing a motion by the corporate defendant to disallow the plaintiff's request for an entry of default, where it was shown that counsel representing the corporate defendant had failed to file an answer within the 20-day period specified in Rule 12(a) precisely because the summons served along with the complaint recited that there were 60 days in which to respond. Observing that the defendant had been diligent in referring the case to the attorney, that the plaintiff would not be prejudiced by the relief sought, and that a meritorious defense had been alleged in the defendant's an-swer, which was filed within the 60-day period, the court said that if counsel for the defendant was in fact careless in relying upon the extended time period clearly set forth in the summons, it was at most excusable negligence. Allow-ing the case to proceed to trial, the court said that the defendant should not be penalized because of the failure of counsel to disregard the language of the summons.

§ 16[c] Mistake as to time for answer—Belief that time had been extended by consent of opposing counsel; good cause established

[Cumulative Supplement]It was held or acknowledged that good cause existed for setting aside an entry of default pursuant to Rule 55(c)

in each of the ensuing decisions, where it was shown that the attorney for the defaulting party failed to take action in the belief that the time for an answer had been extended by the consent of opposing counsel, but that such a belief was mistaken either because no such consent had been given or because a consent actually given was ineffective in the absence of court approval.

Initially, see Orange Theatre Corp. v Rayherstz Amusement Corp. (1952, CA3 NJ) 130 F2d 185, an action for the recovery of treble damages under the Sherman and Clayton Anti-Trust Acts in which the issue presented was whether two stipulations extending the time for an answer, entered into between the attorneys for both the plaintiff and the defendants, were effective notwithstanding the fact that they were never submitted to the trial court for ap-proval. Concluding that the stipulations were not enforceable in the absence of such approval, and reversing a dis -missal of the complaint because the motion therefor had been filed only within the extended time period covered by the stipulations, the court noticed that the defendants were accordingly in default, and that the entry of a default was
















simply a formality, but said that upon remand they could apply to the trial judge for permission to answer under Rule 55(c). In this respect, the court stated that although permission to plead after the allotted time is a matter lying within the discretion of the trial judge, it had "no doubt that upon remand the trial judge will take into account the fact that the stipulations. . . were, nevertheless, relied upon by the parties." It was thus suggested that in view of the stipulations, good cause might exist for setting aside the default under Rule 55(c).

In Hutton v Fisher (1966, CA3 Pa) 359 F2d 913, the court reversed an order denying a motion to set aside both an entry of default and a judgment based thereon in view of evidence indicating that the failure of the defendant's at -torney to file a timely answer was attributable to the fact that when he contacted the plaintiff's counsel to seek an ex-tension of the time in which to plead, within 3 weeks of the filing of the complaint, he was assured that he might have whatever time he wanted. The plaintiff's counsel, whose assertion that he did not recall this conversation was disbelieved, subsequently turned the case over to a junior associate without advising him of defense counsel's in -volvement, and the associate accordingly procured the default without notifying defense counsel or knowing of the informal agreement referred to. Although observing that defense counsel had been negligent in failing to ask the court for an extension of time to answer after obtaining opposing counsel's consent thereto, and adding that it could even be said that defense counsel was grossly negligent in failing to take any action in the litigation for nearly 3 years, until he received notice of an imminent hearing to assess damages, the court nevertheless deemed it of con-trolling significance that the entry of default would in all likelihood have been avoided if the senior associate for the plaintiff had followed proper procedures. Specifically, observing that grounds for setting aside the default would surely exist if the senior associate had obtained it without advising the court that he had consented to an extension of time in which to answer, the court felt that the involvement of the uninformed junior associate should not change this result, since a failure of communication within a law office should not be permitted to disadvantage an opposing party. It was further emphasized that the defendant had alleged the existence of a meritorious defense to the action and that the sum involved in the controversy was substantial. In the latter connection, the court observed that matters involving large sums should not be determined by default judgments if it can reasonably be avoided.

Similarly, where it was shown that counsel for the defendants, after discovering that he was wrong in his as -sumption that he had 15 rather than 10 days in which to file a responsive pleading after his motion to dismiss was denied, contacted the attorney for the plaintiff and as a result of this communication was left with the mistaken im-pression that the latter had agreed to a late filing, the court held that there was good cause for setting aside a default entry under Rule 55(c), in Moran v Mitchell (1973, DC Va) 354 F Supp 86, a civil rights action in which it was al-leged that the defendants, certain state policemen, had violated the plaintiff's constitutional rights in connection with an arrest and search of his motor vehicle. Observing that mistakes and misunderstandings of this nature should not be considered sufficient in and of themselves to deprive a litigant of his day in court, the court expressed the opinion that a default entry should ordinarily be set aside where the moving party presents a reasonable excuse for his ne-glect and, as in the present case, shows that he has a potentially meritorious defense to the action.


Cases:

Sufficient cause exists for vacating entry of default, where defaulting defendant's counsel came to agreement with plaintiff's counsel to extend time in which defendant had to file his answer, even though counsel did not seek order to that effect from court, since it would be grossly unfair to impute such oversight of counsel to client with such drastic consequences attendant. Segars v Hagerman (1983, ND Miss) 99 FRD 274.

Negligence of defense counsel in failing to determine correct date from which extension of time for answer ran was not "culpable" conduct. Shepard Claims Service, Inc. v William Darrah & Associates (1986, CA6 Mich) 796 F2d 190, 5 FR Serv 3d 393.

Default entered against alleged non–customer in action for alleged piracy of satellite television broadcasts would be set aside for "good cause," where failure to answer was due to apparent misunderstandings between coun -sel about informal extension of deadline to answer complaint, alleged non–customer presented meritorious defenses, and broadcaster was not prejudiced by setting aside default. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. DI-RECTV, Inc. v. Meyers, 214 F.R.D. 504 (N.D. Iowa 2003).














[Top of Section]

[END OF SUPPLEMENT]

§ 16[d] Mistake as to time for answer—Good cause not established

[Cumulative Supplement]In the following decision, where the trial court disbelieved defense counsel's contention that he had failed to file

a timely answer in reliance on the opposing counsel's consent to an extension of time in which to plead, it was held that the defendant had not established the requisite good cause for opening a default entry under Rule 55(c).

In Madsen v Bumb (1969, CA9 Cal) 419 F2d 4, an action by a trustee in bankruptcy to recover funds allegedly diverted from the bankrupt corporation, the defendant, who moved to set aside a default over 1 1/2 years after its en-try, alleged that his counsel's failure to file an answer had been attributable to an understanding that the attorney rep-resenting the trustee had granted an oral extension of the time in which to file a responsive pleading. The trial judge refused to believe the statements of the defendant and his attorney in support of this position, however, instead ac-cepting the contention of the attorney for the trustee that no such extension had been granted, and proceeded to deny the defendant's Rule 55(c) motion both because he had not established good cause for such relief in the form of ex -cusable neglect, and because he had failed to show that a meritorious defense existed. Concluding that the trial judge had not abused his discretion in so ruling, the court emphasized that the judge had been involved in the bankruptcy proceedings from which the instant action arose for a substantial period of time, had had the opportunity to hear and observe the principal parties to this action, and was doubtlessly cognizant of the additional cost and delay which would result from a reopening of the case against the defendant.


Cases:

Defendant's failure to inform court that plaintiff had agreed to stipulate to one-month extension of time for re-sponding to plaintiff's attorney-fee motion constituted willful default, and district court did not abuse its discretion in refusing to set aside default under Rule 55(c). Marziliano v. Heckler, 728 F.2d 151, 4 Soc. Sec. Rep. Serv. 170, Un-empl. Ins. Rep. (CCH) ¶15153 (2d Cir. 1984).

On motion to set aside default in action for enforcement of personal guarantee, defendant failed to establish good cause for failure to file timely answer based upon attorney's illness where court had granted extention of time requested by attorney's associate and where associate could have filed answer, in that complaint was very simple one. Chrysler Credit Corp. v Macino (1983, CA7 Ill) 710 F2d 363, 36 FR Serv 2d 1197.

[Top of Section]

[END OF SUPPLEMENT]

§ 16[e] Mistake as to time for answer—Belief that time had been extended by operation of procedural rule

[Cumulative Supplement]While the Federal Rules generally require that a defendant file his answer within 20 days of the service of

process, Rule 12(a) contains certain exceptions to this directive. For example, the filing of any "motion permitted under this rule," such as a motion to dismiss for failure to state a claim upon which relief can be granted, will oper-ate to extend the time for an answer until 10 days after notice of the court's action, and it is provided that a defendant may rely upon a longer answer period specified in a statute or rule of court of a state in which the District Court is











sitting where service has been effected thereunder in accordance with Rule 4(e), which permits resort to such enact-ments where the party to be served is not "an inhabitant of or found within the state."

In the following decisions, mistakes by defense attorneys relative to the applicability of such exceptions to the requirement of an answer within 20 days were held to warrant the setting aside of default entries under Rule 55(c).

Where it appeared that the out-of-state attorney for the defendants in a breach of contract action entertained the mistaken impression that the plaintiff's filing of a motion for summary judgment operated to toll the running of the time period in which his answer was required, as would have been the case under Rule 12(a) if he himself had moved for a dismissal, and it was shown that he did in fact, although belatedly, ask the plaintiff for an extension of time to answer, the court in Albert Levine Associates, Inc. v Kershner (1968, DC NY) 45 FRD 450, held that since the defendants' failure to file a timely answer was attributable to nothing more serious than excusable neglect, good cause existed for setting aside an entry of default under Rule 55(c). In support of this conclusion, moreover, the court emphasized that the defendants' affidavits in opposition to the motion for summary judgment established that there were substantial defenses, and so clearly apprised the plaintiff of the nature thereof that an opening of the de-fault could not conceivably prejudice him.

See Moran v Mitchell (1973, DC Va) 354 F Supp 86, supra § 16[c], where it appeared that at least a portion of defense counsel's delay in serving an answer, after a denial of his motion to dismiss, was attributable to his mistaken belief that as a result of the motion he had a longer period in which to respond than that actually afforded by Rule 12(a).

In Finch v Big Chief Drilling Co. (1972, DC Tex) 56 FRD 456, a personal injury action against a nonresident corporation wherein service was made upon the registered agent of the defendant in Texas, it was shown that coun-sel for the defendant failed to file an answer within the 20-day period specified in Rule 12(a) because he erroneously believed that the case was governed by an exception to that provision which would have allowed him to take advan-tage of a Texas procedural rule permitting 30 days for a responsive pleading.[4]An answer was in fact filed within this 30-day period, but 5 days earlier the plaintiff had requested that a default be entered and moved for a default judgment. Denying the latter motion, and concluding that there was good cause for granting relief from the default under Rule 55(c), the court emphasized that the plaintiff had failed to show that he suffered any prejudice as a result of the 10-day delay in the filing of the answer and that the defendant's pleadings revealed both that he had a merito-rious defense to the action, and that the delay was attributable to his counsel's mere misinterpretation on a technical point of law. The court characterized this misrepresentation as excusable neglect but indicated that relief might be appropriate even in the absence of such a finding. Specifically, it was said that when the question is whether to enter a default judgment rather than vacate an existing default judgment, it is not absolutely necessary that the neglect or oversight of counsel offered as a reason for the delay be "excusable."

Observing that a default judgment may be set aside pursuant to Rules 55(c) and 60(b) "for good cause shown," and that such good cause is established upon a showing of Rule 60(b) "excusable neglect," the court in Provident Se-cur. Life Ins. Co. v Gorsuch (1963, CA9 Ariz) 323 F2d 839, cert den 376 US 950, 11 L Ed 2d 970, 84 S Ct 966, a stockholder's suit to invalidate a corporate merger in which it was shown that counsel for the defendant failed to file a timely answer because he erroneously believed that the time for serving a responsive pleading had been extended by his filing of a motion for summary judgment, held that the trial judge clearly abused his discretion in refusing to set aside a default and vacate a resulting default judgment on the ground of excusable neglect. Emphasizing that the mistaken impression as to the extension of time for answering had been entertained in good faith, defense counsel apparently believing that his motion for a summary judgment operated as a motion to dismiss, which would have al-tered the period required for an answer under Rule 12(a), the court further noted that the plaintiff could not have been prejudiced by the failure to answer within the time allowed, and that the motion for summary judgment had raised substantial defenses.


Cases:

Alleged ignorance of debtor's attorney concerning nonapplicability of automatic stay is insufficient to justify




















setting aside entry of default judgment against debtor pursuant to Rule 55(c); debtor's action to set aside default is also not timely, and creditor would suffer prejudice if entry of default was set aside. Turner Broadcasting System, Inc. v Sanyo Electric, Inc. (1983, ND Ga) 33 BR 996.

[Top of Section]

[END OF SUPPLEMENT]

§ 17[a] Failure to receive correct information regarding status of case—From files of court clerk

[Cumulative Supplement]In the ensuing decision, a defense counsel's failure to receive the information that a summons had been served

upon checking a certain document in the court clerk's office was held to warrant relief from an entry of default in ap-plication of the good cause standard of Rule 55(c), notwithstanding the fact that he would have received the correct information if he had looked at the clerk's official docket sheet.

In Gillespie v Hysmith (1968, DC Pa) 44 FRD 476, a Jones Act proceeding in which the summons was served on September 18, and a notation of the marshal's return of the summons was recorded in the court clerk's docket sheet on October 10, the same date the plaintiff obtained an entry of default, local counsel for the defendant claimed in his motion to set aside the default that he had from time to time checked the clerk's "file jacket" for the case and there discovered no entry indicating that the summons had been issued or served. It was alleged that in view of this situation, and considering the fact that in cases of this type it was not uncommon for the marshal to delay service un -til the arrival of a vessel at a local port, he naturally assumed that the summons had not been served and was await -ing its receipt from the defendant's New York counsel, to whom it would have apparently been delivered in the first instance. It was shown, however, that had the defendant's local counsel checked the clerk's docket sheet itself, he would have seen a September 25 entry indicating that the summons had in fact been served and would have been re-turned but for the plaintiff's failure to pay a required fee. Concluding that the circumstances warranted leniency, the court granted the defendant's Rule 55(c) motion to set aside the default entry, observing that the local counsel had generally been diligent even though misguided in his failure to check the clerk's docket sheet.


Cases:

Defendants showed good cause for relief from entry of default judgment where they had filed answer to plain-tiff's motion for preliminary injunction, but had listed incorrect case number. Golden v National Finance Adjusters (1982, ED Mich) 555 F Supp 42, 1983-1 CCH Trade Cases ¶65323.

[Top of Section]

[END OF SUPPLEMENT]

§ 17[b] Failure to receive correct information regarding status of case—From opposing counsel

In some instances, it has been argued or suggested by a defense attorney seeking to establish good cause for re-lief under Rule 55(c) that his failure to avoid a default, or at least act quickly to correct one, should be considered excusable precisely because he had contacted opposing counsel but was not then or thereafter informed that an entry of default would be or had been applied for. The courts refused to regard this absence of notification as a justifica -tion for delay in the following decisions, it appearing in each that defense counsel should have been aware of his delinquency and had no reason to expect the plaintiff's attorney to refrain from securing a default entry.












In Dascenzo v Blain (1974, DC Pa) 19 Fed Rules Serv 2d 384, an action under the Civil Right Act in which the complaint was filed on November 15, it was shown that the assistant state attorney general representing the defen -dants had received actual notice of the filing of the complaint on November 26, and was made aware during the week of December 3, that all defendants had been served, but that he nevertheless failed to enter an appearance until December 24, 3 days after a default had been entered. In his Rule 55(c) motion to set aside the default entry, defense counsel indicated, in apparent justification of his delay, that he received no notification of the taking of the default despite the fact that he had personally notified the plaintiff's attorney of his representation of the defendants on No-vember 30. Concluding that relief was not warranted, even applying the most liberal interpretation of the term "good cause," the court noted that in effect, since no actual explanation of the cause for the delay was asserted, defense counsel was asking the court to conclude that good cause existed solely by reason of the fact that he orally advised plaintiff's counsel of his representation prior to the entry of default. Refusing to accept this argument, the court em -phasized that there was nothing in the record indicating that defense counsel sought an extension of time in which to answer from either the plaintiff's counsel or the court, that there was any discussion between the attorneys about the case other than that relating to the notice of representation, that defense counsel was in any way misled by the plain -tiff's attorney, or that defense counsel had any reason to believe that no default would be entered without prior no -tice.

And a similar result was reached in Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Corp. (1967, CA4 Va) 383 F2d 249, where it was shown that service was made upon the registered agent for the corporate defen-dant in Virginia on July 30, and that the suit papers were received by the defendant's Washington, D.C., general counsel during the week of August 9. Not being a member of the Virginia bar, the general counsel sought to retain a Virginia attorney and for this purpose dictated a letter sometime between August 9 and August 18, when he went on vacation. The general counsel's secretary, however, did not transcribe this letter from the dictating machine and for-ward it to the selected Virginia attorney until August 22, and it was shown that the latter attorney received the letter on August 25, one day before a default was entered. In attempting to explain why its motion to set aside the default was not filed until November 10, the defendant contended that its Virginia attorney had contacted the plaintiff's counsel on August 26 but was not then told that a default had been or was about to be applied for, and that the plain -tiff's counsel had failed to inform the Virginia attorney of the true posture of the case during numerous conversations they had between August 26, and November 6. Refusing to conclude that the lower court had clearly abused its dis -cretion in finding that there was no good cause for opening the default entry under Rule 55(c), the court observed that although a default should generally be set aside where the moving party acts with reasonable promptness and al-leges a meritorious defense, it could not be said that the defendant acted promptly in filing the instant motion more than 2 1/2 months after the default had been entered. Pointing out that the lower court had rejected the contention that the defendant's attorney was misled by the plaintiff's attorney, the court noted that in any case, the reasonable and logical course which defense counsel should have pursued after becoming aware of the failure to answer in time was to immediately check the official records at the clerk's office in order to determine the status of the case. Stating that the defendant's attorney was negligent in failing to do this, the court added that an additional reason for denying relief was to be found in the fact that the defendant did nothing more than allege in a conclusory fashion that it had a meritorious defense. It was observed in this connection that although the defendant had cited authority for the propo-sition that a mere allegation of the existence of a meritorious defense is sufficient to support a Rule 55(c) motion, it had not made a showing satisfactory to the trial judge in the instant case, who had required a disclosure of facts to establish the meritorious defense claim. It was said that the trial judge did not abuse his discretion in requiring such a showing.

On the other hand, the failure of plaintiff's counsel to advise the attorney for the defendant of his delinquency before seeking a default entry has been treated as a significant omission in cases where it appeared that defense counsel would not otherwise have had reason to know that an answer was due.

Thus, attention is directed to Hutton v Fisher (1966, CA3 Pa) 359 F2d 913, supra § 16[c], where a default en-tered without prior notice to the defendant's attorney was ordered set aside precisely because defense counsel had previously been assured by a senior associate of the plaintiff's attorney that he could have whatever time he needed to serve an answer.

Compare Stuski v United States Lines Co. (1962, DC Pa) 31 FRD 188, infra § 23, where the court granted a Rule 55(c) motion filed over one year after a default had been entered upon a showing that the defendant's insurance carrier had apparently confused the complaint with one filed against it by the plaintiff in a state court proceeding












arising out of the same accident, and consequently never returned the complaint to defense counsel for handling. In reaching this determination, the court deemed it significant that the plaintiff's attorney had made no attempt to re -mind defense counsel of his delinquency in the instant case, although the latter had entered an appearance and filed an answer in the state court proceeding.

And see Hamilton v Edell (1975, DC Pa) 67 FRD 18, infra § 20, where relief was granted under Rule 55(c) upon a showing that the office of the defendant's attorney was in a state of utter confusion around and following the date the summons and complaint were delivered, as a result of which he did not become aware of the default and could not move to set it aside until 4 months after it had been entered. In support of its holding, the court empha -sized that the attorney for the plaintiff had never contacted defense counsel regarding his failure to answer, either be-fore or after the entry of default.

§ 18. Neglect of member of clerical staff

Relief under the good cause standard of Rule 55(c) has been deemed appropriate where the failure of defense counsel to file a timely answer was shown to have been attributable not to his own personal fault, but to the neglect of a member of his clerical staff.

Thus, it was concluded that the defendant had established "the good cause required to set aside a default judg-ment under Rule 55(c)," in Nicholson v Allied Chemical Corp. (1961, DC Pa) 200 F Supp 206, a personal injury ac-tion in which it was shown that although counsel for the defendant, who received a copy of the complaint 2 weeks after it had been served, acknowledged to the defendant's insurance carrier that he would secure from the plaintiff's attorney an extension of time to file an answer, such an extension was never in fact obtained and a judgment by de -fault was entered. Granting the defendant's motion to set aside this judgment, the court pointed out that the default was caused by the excusable neglect of a member of the defense counsel's clerical staff who, contrary to a well-es-tablished office procedure which had been followed without a single error in execution in more than 11 years, failed to secure from the plaintiff's attorney a stipulation for an extension of time to file a responsive pleading. It was also emphasized that the defendant's counsel had acted promptly and diligently in filing the instant motion within 3 days after learning of the default judgment, and that the defendant had shown the existence of a meritorious defense to the plaintiff's claim.

Compare Consolidated Masonry & Fireproofing, Inc. v Wagman Constr. Corp. (1967, CA4 Va) 383 F2d 249, supra § 17[b], where the immediate cause for the default was the failure of a secretary in the office of the defendant's general counsel to transcribe and mail a letter retaining a local counsel in time for the latter to frame an answer. From the tenor of the opinion, it appears that the court might have set aside the default entry if the local attorney had not thereafter delayed an unreasonable amount of time in moving for relief under Rule 55(c).

§ 19. Reliance upon settlement negotiations

[Cumulative Supplement]Relief from a default entry has been granted under Rule 55(c) where it was shown that the reason for defense

counsel's failure to file a timely answer was his reliance upon the efficacy of settlement negotiations erroneously be-lieved to be in progress with respect to the case.

Compare Mitchell v Eaves (1959, DC Tenn) 24 FRD 434, infra § 21[a], where it was suggested that at least the last 2 weeks of defense counsel's 3 month delay in filing an answer may have been attributable to his hope that the case could be settled. Although granting relief from the default entry, the court observed that a hope of settlement does not justify a failure to obtain an extension of time in which to answer.

In Barber v Turberville (1954) 94 App DC 335, 218 F2d 34, an action for criminal conversation arising out of the defendant's affair with the plaintiff's husband, it was shown that the plaintiff had earlier instituted an action for maintenance against her husband and that the same attorney represented both the husband in that suit and the defen -dant in the instant suit. After receiving a copy of the summons and complaint in the instant case, the attorney failed to enter an appearance or file an answer, resulting in a judgment favorable to the plaintiff following the entry of a default. In his motion to set aside both the default entry and the judgment, which the trial court denied, the attorney alleged that he had failed to file an answer through oversight. It appeared that he had been conducting settlement ne-














gotiations with the plaintiff's counsel relative to the maintenance suit against the husband and had entertained the er -roneous impression that these negotiations likewise contemplated the instant suit. Observing that an entry of default may be set aside for good cause shown under Rule 55(c), and that a party may be relieved from a final judgment un-der Rule 60(b) for excusable neglect, the court held that the record in the instant case established grounds warranting both a reversal of the judgment and a vacation of the entry of default. In support of this conclusion, the court noted that since the instant criminal conversation action and the maintenance suit against the husband were closely interre-lated, the relationship between the husband and the defendant being the subject of inquiry in both cases, it was not unreasonable for the defendant's attorney to assume that settlement negotiations admittedly in progress with respect to the maintenance suit related to the instant case as well. Observing that a meritorious defense had been alleged, and that the plaintiff's position would not be jeopardized by a reopening of the case, the court also deemed relief ap -propriate because the defendant had not been personally negligent in the protection of her interests. It was said in the latter connection that under circumstances such as those here disclosed, the courts have been reluctant to attribute to parties the errors of their legal representatives.


Cases:

See Spica v Garczynski (ED Pa) 78 FRD 134, § 22.Defendant's motion to set aside default judgment would be granted where defendant asserted that entry of de-

fault was due to its good faith belief that settlement negotiations were proceeding and dispute could be resolved without resort to court, and where defendant asserted it had meritorious defense. Whitman v United States Lines, Inc. (1980, ED Tex) 88 FRD 528 31 FR Serv 2d 850.

Defendants' motion to set aside default was meritorious where (1) enlargements of time to plead or otherwise defend were agreed upon by counsel for purposes of negotiating settlement, (2) defense counsel demonstrated good faith by moving to set aside his client's default and by lodging his answer and counterclaim with clerk on first work-ing day after he returned to jurisdiction and was met with surprise of previous entry of default, and (3) plaintiff ap -peared to have been unduly anxious to win by default. Singer Co. v Greever & Walsh Wholesale Textile, Inc. (1978, DC Tenn) 27 Fed Rules Serv 2d 1114.

[Top of Section]

[END OF SUPPLEMENT]

§ 20. Other specified reasons

[Cumulative Supplement]In the following decisions, specified reasons for attorney inaction other than those discussed in §§ 15- 19, supra,

were regarded as sufficient to establish the requisite good cause for setting aside an entry of default under Rule 55(c).

In Rogers v Arzt (1941, DC NY) 1 FRD 581, the court vacated default entries as to certain defendants in appar-ent application of Rule 55(c), observing only that their failure to file answers within the prescribed time period was attributable to "a misunderstanding between counsel for the respective parties."

Pointing out that the defendant's failure to appear and plead in the instant personal injury action resulted from his counsel's mistaken impression that he had completed dictating and had mailed a relevant letter, whereas he had in fact been interrupted in the process of dictation and consequently failed to complete the letter, the court in Teal v King Farms Co. (1955, DC Pa) 18 FRD 447, concluded that good cause existed for granting the defendant's Rule 55(c) motion, filed within 12 days of the entry of default, especially since the plaintiff could suffer no harm from the short delay involved, and an upholding of the default could result in grave injustice to the defendant. Observing that the Federal Rules evidently make a distinction between what is required for the opening of a default entry under


















Rule 55(c) and what is required to set aside a default judgment, relief in the latter situation being warranted only upon a showing of excusable mistake, inadvertence, surprise, or neglect according to Rule 60(b), the court said that there would be no reason for this distinction unless Rule 55(c) was intended to commit the matter of relief from a default entry entirely to the discretion of the court. As a consequence, the court observed, even inadvertence which is not strictly excusable may constitute Rule 55(c) good cause. Accordingly, the court granted the relief requested even though it appeared to regard the defense counsel's error as one attributable to inexcusable inadvertence.

In Hamilton v Edell (1975, DC Pa) 67 FRD 18, an action by a state prisoner under the Civil Rights Act, 42 U.S.C.A. § 1983, alleging that a prison guard and an assistant warden had deprived him of adequate medical care, it appeared that the failure of the defendants to file a timely answer was attributable to the existence of a temporary state of confusion at the office of their counsel, caused by a rearrangement of both physical facilities and personnel. In his Rule 55(c) motion to set aside a default entry, defense counsel alleged that at the time process was served, his office was undergoing extensive physical renovations and was generally in a "state of transformation wherein lawyers were being rearranged to different positions." As a result, it was claimed, defense counsel first learned of the default when he subsequently spoke to the plaintiff's attorney concerning another subject, and upon promptly in-vestigating the matter he was even then unable to locate a file for the case, although he did find a card which indi-cated that a file had been opened. While stating that it could not condone the laxity of defense counsel, the court nevertheless granted his motion, even though it was filed approximately 4 months after the entry of default. In reaching this determination, the court emphasized that the plaintiff's attorney had never contacted defense counsel regarding the failure to answer, either before or after the entry of default; that an opening of the default would not cause any special harm to the plaintiff; and that the late answer tendered by the defendants showed that a good de -fense existed. It was said that a Rule 55(c) motion to set aside a default should be granted where the nondefaulting party will not be prejudiced by the opening, the defaulting party has a meritorious defense, and the default was not the result of inexcusable neglect or a wilful act.

And attention is directed to McCloskey & Co. v Eckart (1947, CA5 Fla) 164 F2d 257, an action for overtime pay against a builder of ships for the United States Government in which it was shown that a United States attorney, who had undertaken the defense in view of the government's interest, failed to file an answer after receiving two ex -tensions of time to plead, and consequently suffered the entry of a default, because he was unable to obtain instruc -tions regarding the case from Washington for more than 4 months. The trial judge had denied the defendant's motion to set aside the default upon the ground that an answer tendered along with the motion failed to reveal the existence of a meritorious defense to the action. Disagreeing with this conclusion, the court reversed and remanded the cause with a direction that the default be opened, observing that although the granting of relief under Rule 55(c) is gener-ally discretionary, the record in the instant case indicated that such discretion would have been favorably exercised if it had been determined that a good defense had been offered.


Cases:

In civil rights action against county and officials in which plaintiff alleged that son's suicide had been caused by defendants' deliberate indifference, trial court properly exercised discretion in removing county's default where trial court had accepted county's attorney's excuse that his failure to respond was due to his illness, plaintiff had not been prejudiced by county's late answer, plaintiff failed to move to continue case in order to conduct discovery, plaintiff failed to identify witnesses from whom she would have sought discovery who had not otherwise been deposed, and where jail's policy concerning suicide risks had been covered exhaustively by plaintiff at trial. Leshore v County of Worcester (1991, CA1 Mass) 945 F2d 471, 21 FR Serv 3d 454.

In civil action court would, in light of policy favoring resolution of disputes on merits, grant defendants' motion under Rule 55(c) to set aside entry of default "for good cause shown" where inadvertent and unintentional problems of communication between attorneys had resulted in defendants' failure to answer by time agreed upon, even though answer had been timely prepared, where there was no indication that plaintiff had been prejudiced, and where there was no indication that defendants or their counsel had acted in bad faith. Debreceni v Route USA Real Estate, Inc. (1990, DC Mass) 773 F Supp 498.



















Although defense attorneys' contention that heavy load of cases assigned to their department contributed to their belatedness in making appearance before court could have been reason for filing motion for extension of time, such does not constitute excusable neglect permitting entry of default to be set aside; furthermore, where defense attor-neys admitted that they had been notified with sufficient time and that it may have been tactical mistake to wait until after default had been entered to appear for purpose of moving to quash summons, attorneys having stated that they knew they had valid jurisdictional excuse and nevertheless let period elapse before making appearance in court, court would not set aside entry of default upon exercise in intentional dilatory tactics where plaintiff sought equi -table relief and delay could very much affect his purported rights. Vega Matta v Alvarez De Choudens (DC Puerto Rico) 440 F Supp 246, affd without op (CA1 Puerto Rico) 577 F2d 722.

Setting aside of entry of default was not abuse of discretion in action for alleged unfair housing practices and discrimination, given district court's findings that default was not wilful, as demonstrated by counsel's diligence after slight delay due to illness, that plaintiff was not prejudiced by setting aside of default, and that defendant presented meritorious defense that complaint failed to state claim. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Cyril v. Neigh-borhood Partnership II Housing Development Fund, Inc., 124 Fed. Appx. 26 (2d Cir. 2005).

See Fariello v Rodriguez (1993, ED NY) 148 FRD 670, § 13[a].Defendant in § 1983 case filed by prison inmate was excused its procedural default; delay in responding to

plaintiff's motion for summary judgment was caused by congestion in defense counsel's trial calendar and difficulty in contacting defendant, defendant had meritorious defenses and would be prejudiced by entry of default, and de-fault was not willful. Hodges v Jones (1995, ND NY) 873 F Supp 737.

Court would deny plaintiff's motion in civil action to vacate its default for failure to defend on defendants' coun-terclaims and failure to prosecute its complaint since plaintiff failed to demonstrate "good cause" under Rule 55(c) inasmuch as plaintiff's counsel's failure to appear because of vacation plans and difficulty contacting his client—was not excusable and demonstrated intentional indifference to court's orders and efforts to maintain its trial calendar; plaintiff failed to demonstrate that it had meritorious defense to counterclaims or that it had meritorious complaint, plaintiff's counsel's affidavit contained only superficial and conclusory statement to support its contention that it had meritorious defense and statement was inadequate to support Rule 55(c) motion. Fine Shoe Co. v Buckray, Inc. (1990, SD NY) 131 FRD 58.

Court would set aside default judgment pursuant to Rule 55(c), Federal Rules of Civil Procedure, which permits court to set aside entry of default for good cause shown, since good cause or excusable neglect showing was made inasmuch as attorneys for defendant asserted that they had been asked to represent interests of other party, which had initially represented defendant, and that other party was unable to meet obligations due to fact that it went into receivership in Bermuda. Sprague & Rhodes Commodity Corp. v M/V Procer Fulgencio Yegros (1985, SD NY) 617 F Supp 911.

Trial court would grant defendants' motion to satisfy default judgment under Rule 55(c) where, although defen-dants did nothing in case until court had scheduled status conference and then failed to obey scheduling order, and plaintiff was frustrated by delays in case, 26-day delay in filing of answer after deadline had been imposed did not substantially prejudice plaintiff's case and defendants' attorney's explanation indicated that failure to adhere to dead-line was due to inadvertence and mistake and subsequent default was not wilful, so that absence of wilful default and existence of meritorious defenses required court to grant judgment. Lutwin v New York (1985, SD NY) 106 FRD 502, 2 FR Serv 3d 265, affd without op (CA2 NY) 795 F2d 1004.

Good cause existed for setting aside default judgment, entered when answer to amended complaint was filed one day late; defendant had contacted court on due date, and had timely answered earlier complaints. Fed. Rules Civ. Proc. Rule 55(c), 28 U.S.C.A. Vermont Mobile Home Owners' Ass'n, Inc. v. Lapierre, 94 F. Supp. 2d 519 (D. Vt. 2000).

Attorney with whom plaintiff had been corresponding demonstrated good cause for failure to file complaint where she had been uncertain as to whether she was authorized to act as defendant's counsel. Gross v Stereo Compo-nent Systems, Inc. (1983, CA3 Pa) 700 F2d 120, CCH Bankr L Rptr ¶69091, 35 FR Serv 2d 1117.

Magistrate properly granted defendants' motion to set aside notice of entry of default where defendants were only five days late in responding, plaintiff did not suffer any prejudice therefrom, and defendants had not received documents they needed to support their response until 4 days after filing date. Becker v Smith (1982, MD Pa) 554 F Supp 767, 37 FR Serv 2d 791.

Although cautioning counsel that localized custom or practice cannot be assumed to constitute "good cause" for































setting aside of entry of default, court would exercise its discretion in setting aside default where attorney's motion for entry of default prior to notice to adversary counsel was contrary to local custom and practice; paramount inter-est of court was to do justice and court would be reluctant to proceed toward any judgment without trial of disputed issues. Wilson v Winstead (1979, ED Tenn) 84 FRD 218.

In motion to set aside default under Rule 55(c), defense counsel's failure to attend seasonably to matter involved because he was busy with other matters is not inadvertence of such counsel, but is gross negligence on his part which does not constitute good cause for setting aside entry of default and fact that defendant, itself, may have been innocent in premises does not provide excuse for its attorney's failure to diligently pursue its interests. Kennerly v Aro, Inc. (ED Tenn) 447 F Supp 1083.

Default judgment will not be set aside for failure to serve process where defendant claims that he received sum-mons, immediately mailed it to his attorney and assumes that it was lost in mail. Chandler Leasing Corp v UCC, Inc. (1981, ND Ill) 91 FRD 81, 31 FR Serv 2d 1007.

Default judgment must be vacated where attorneys for both parties failed to appear on trial date as result of mis-understanding and court sua sponte entered default judgment without first giving parties notice that it was contem-plating such action. Marshall v Boyd (1981, CA8 Ark) 658 F2d 552, 31 FR Serv 2d 866.

Defendant's strategy of defaulting in action, which created unilateral procedural restraint effectively precluding plaintiff from obtaining timely preliminary injunctive relief, constituted legal prejudice, for purposes of defendant's motion to set aside entry of default judgment. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 55(c) Iowa State University Research Foundation, Inc. v. Greater Continents Inc., 208 F.R.D. 602 (S.D. Iowa 2002).

Although illness of attorney established good cause for setting aside entry of default, motion to set aside default would be denied where defendants failed to establish existence of meritorious defense. Tri-Continental Leasing Corp. v Zimmerman (1980, ND Cal) 485 F Supp 495.

[Top of Section]

[END OF SUPPLEMENT]

§ 21[a] Unexplained inaction—Good cause established

[Cumulative Supplement]It was determined that relief from an entry of default was appropriate in each of the ensuing Rule 55(c) cases,

where the default was shown to have been attributable to the inaction of the defendant's attorney, but the precise rea-son for such inaction was either not revealed by the defendant himself or not reflected in the court's opinion, al-though perhaps characterized in conclusory fashion as "mistake," "inadvertence, " "neglect," or the like.

Where certain defendants in an action to enjoin alleged violations of the Securities Act of 1933, 15 U.S.C.A. §§ 77e(a) and 77e(c), claimed in support of their motion to set aside an entry of default that they delivered the summons and complaint to their attorney immediately upon receiving them, that they were advised in later conversations with the attorney that the matter was being handled, and that they first became aware of the fact that the attorney had not submitted an answer when they learned of the default entry, it was held in Securities & Exchange Com. v Vogel (1969, DC NY) 49 FRD 297, that good cause existed for setting aside the default entry under Rule 55(c). Observing that defaults are not favored by the law, and that any doubt should accordingly be resolved in favor of setting aside a default so that a determination may be made on the merits of a case, the court held that the defendants had satisfied all of the generally recognized prerequisites to relief under Rule 55(c). Specifically, it was emphasized that an open-ing of the default would result in no substantial prejudice to the plaintiff, that the defendants claimed the existence of, and presented a factual basis for, a meritorious defense, and that the defendants had not been guilty of gross ne-glect in failing to file a timely answer.

In Alopari v O'Leary (1957, DC Pa) 154 F Supp 78, an action for personal injuries arising out of an automobile collision in which a default was entered upon the failure of the nonresident defendant to file a timely answer after re-ceiving substituted service of process, the defendant's attorney filed a Rule 55(c) motion to set aside the default ap-proximately 2 1/2 months after it was entered, alleging that the delay had been attributable to "the inadvertence and excusable neglect of counsel." Granting this motion without a further recitation of the facts surrounding the delay,








http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=15USCAS77E&FindType=L&ReferencePositionType=T&ReferencePosition=SP_4b24000003ba5

















and expressing the view that any doubt should be resolved in favor of setting aside a default so that cases may be de -cided on their merits, the court determined that relief was appropriate precisely because of the lack of any substantial prejudice to the plaintiff, the defendant's claim of a meritorious defense, and the absence of any gross neglect on the part of the defendant.

In Davis v Carabo (1970, DC SC) 50 FRD 468, a wrongful death action in which jurisdiction was predicated upon diversity of citizenship, the affidavit filed by the defendants' counsel in support of his motion to set aside a de -fault entry alleged that his own "inadvertence and mistake" had been the cause of the failure to file a timely answer. Without detailing any particular averments of the affidavit in support of this contention, the court vacated the default and dismissed the action, relying principally upon the ground that the absence of complete diversity of citizenship between the plaintiffs and the defendants deprived it of jurisdiction of the cause. It was said, however, that even if jurisdiction existed, discretion would be exercised to afford the relief sought under Rule 55(c) precisely because the default had not been wilful, the instant motion had been made with reasonable promptness, and the defendants al -leged the existence of a meritorious defense to the action.

And see Mitchell v Eaves (1959, DC Tenn) 24 FRD 434, where the court, observing simply that "a trial on the merits is much to be preferred to a default," granted a Rule 55(c) motion filed one day after a default entry even though acknowledging that defense counsel, who failed to serve an answer or request an extension of time in which to plead within a 3-month period following service of the summons and complaint, had offered no satisfactory rea-son for the most of his delay, submitting an affidavit in support of the motion which attempted to explain his inac-tion only during the last 2 weeks of the period.[5]


Cases:

Conduct of plaintiffs' counsel, in failing to file timely answer to defendants' amended counterclaims, was not willful and, thus, weighed in favor of granting plaintiffs' relief from default; although counsel failed to request ex -tension or to file answer within extended time period for filing extension requests, counsel filed untimely answer only four days after their extension request was due, had previously filed timely motions involving counterclaims, had exchanged summary judgment statements with defendants, and had expeditiously moved to vacate default. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Weisel v. Pischel, 197 F.R.D. 231 (E.D.N.Y. 2000).

Where the client has demonstrated gross negligence on the part of his counsel, such negligence may constitute "extraordinary circumstances," and a default judgment against the client may be set aside pursuant to the "catch–all" clause of rule governing relief from judgment. 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b)(6) Community Dental Services v. Tani, 282 F.3d 1164, 61 U.S.P.Q.2d (BNA) 1922 (9th Cir. 2002).

See Grandbouche v Clancy (1987, CA10) 825 F2d 1463, 8 FR Serv 3d 1037, § 6[b].

[Top of Section]

[END OF SUPPLEMENT]

§ 21[b] Unexplained inaction—Good cause not established

[Cumulative Supplement]The court refused to set aside an entry of default pursuant to Rule 55(c) in each of the following decisions,

where the critical delay was attributable to the inaction of the defendant's attorney, but the precise reason for such inaction was not explained.

Observing that the promptness with which a party acts after discovering that a default has occurred is a circum-stance which must be given important and weighty consideration in the determination of whether a Rule 55(c) mo-tion should be granted, the court in Elias v Pitucci (1952, DC Pa) 13 FRD 500,[6]refused to set aside a default where it was shown that although counsel for the defendant had received written notice of the default entry on or about
















March 5, 1951, he failed to file the instant Rule 55(c) motion until March 19, 1952, and could offer no excuse for the delay. Concluding that it could not under the circumstances be said that defense counsel acted with due dili -gence, the court added that in view of this situation the defendants were not entitled to relief even if it were estab -lished that they had a meritorious defense to the action, and that the original failure to answer was attributable to a mistake of their attorney.

In Canup v Mississippi Valley Barge Line Co. (1962, DC Pa) 31 FRD 282, a Jones Act suit in which a default was entered against the defendant on August 29, defense counsel's Rule 55(c) motion to set aside the default, filed on September 4, alleged that it had been caused by his own "inadvertence." The motion revealed that defense coun -sel had knowledge of the case as early as August 16, however, and it did not offer any further excuse for his failure to seek an extension of the time in which to file an answer. Denying the relief sought, the court observed that al-though indulgence is readily accorded when the attorney seeking to open a default is inexperienced or has a past record of fairness and diligence, its files disclosed that the law firm to which the defense counsel belonged, a well-established Pittsburgh concern with an extensive practice in federal courts, had so often failed to file timely plead -ings and briefs in past cases that it could be characterized as a persistent offender. Observing that if this firm's prac -tice was too extensive to be handled properly, the remedy was to either hire more lawyers or advise clients to seek representation elsewhere, the court held that in view of all the circumstances, there was no good reason justifying the instant delay.


Cases:

Trial judge, responsible for orderly and expeditious conduct of litigation, must have broad latitude to impose sanction of default for non-attendance occurring after trial has begun. Thus, in civil action, trial court properly exer-cised discretion in denying defendant's request to vacate entry of default for counsel's failure to appear during course of trial where evidence showed that no unavoidable circumstances had arisen to prevent counsel from fulfilling obli-gation to attend resumed trial or to have colleague appear for him, and where counsel's unsuccessful efforts to con-tact court did not excuse default inasmuch as efforts to telephone court had been less than diligent. Brock v Unique Racquetball & Health Clubs, Inc. (1986, CA2 NY) 786 F2d 61, 4 FR Serv 3d 482.

Defendants did not sufficiently show a meritorious defense or any other reason entitling them to vacate default arising from their failure to answer amended complaint, notwithstanding that plaintiff did not advance any persua-sive claim of prejudice, where their underlying defense was unsupported by anything other than a bald assertion, and the only excuse offered for their default was blatantly false. Fed.Rules Civ.Proc.Rule 55(c), 28 U.S.C.A. Lowey Dannenberg Cohen PC v. Dugan, 249 F.R.D. 67 (S.D. N.Y. 2008).

In absence of mitigating circumstances, lack of diligence or mere carelessness on part of party's attorney is not sufficient cause to set aside default because, having voluntarily chosen his attorney, party cannot avoid conse-quences of acts or omissions of his freely selected agent. Aberson v Glassman (DC NY) 70 FRD 683.

In action by United States to enjoin landlord from violating Fair Housing Act in rental of units, landlord's mo -tion to set aside default judgment, would be denied, where only "good cause" presented for landlord's failure to com-ply with discovery or to appear for deposition, was alleged failure of former attorney to keep him informed about case. United States v Dimucci (1986, ND Ill) 110 FRD 263.

See Federal Trade Com. v Packers Brand Meats, Inc. (CA8) 562 F2d 9, § 13[b].

[Top of Section]

[END OF SUPPLEMENT]

C. Inaction of party's insurer

§ 22. Error or neglect in forwarding of suit papers to proper office














[Cumulative Supplement]When an insurer assumes the defense of an action on behalf of its insured, it frequently happens that the office

of the insurer which initially receives the suit documents is not the one responsible in the corporate structure for ulti-mately handling the case, and that there must consequently be some transmission of the documents between differ -ent offices. In the following decisions, the courts refused to grant relief under Rule 55(c) where the default was al-leged to have occurred because of some error or neglect of the defendant's insurer in connection with such a trans -mission of the suit papers, as a result of which they either never arrived at the appropriate office or arrived there too late for the filing of a timely answer.

It was developed in Robinson v Bantam Books, Inc. (1970, DC NY) 49 FRD 139, an action for copyright in-fringement, that after the summons and complaint had been forwarded to the home office of one of the defendants and from there sent, through an insurance broker, to the Chicago office of the insurer for both of the defendants, someone in the latter office committed a clerical error which resulted in the documents being forwarded to the in-surer's White Plains, New York, office instead of its New York City office, which was apparently charged with re-taining a local attorney and supervising the litigation. As a consequence, the documents had to be rerouted to the New York City office, which did not succeed in getting them to defense counsel until several weeks after the date an answer should have been filed. Denying the defendants' motion under Rule 55(c) to set aside a resulting entry of de-fault, both because they had failed to establish a meritorious defense to the action and because they had not demon -strated that their failure to file a timely answer was attributable to excusable neglect, the court emphasized that the defendants did not show who in each of the mentioned offices handled the suit papers, and did not contend that at -torneys in any of these various offices were unaware of the 20-day deadline for filing an answer. Refusing to find merit in what was characterized as an attempt by the defendants to make Federal Rule 12(a) read that the 20-day pe-riod for the filing of an answer should have commenced with the time the summons and complaint filtered back to the lawyer in charge of the litigation, and noting that the defendants were in effect asking the court to subscribe to the proposition that interoffice confusion resulting from multioffice corporate enterprises should automatically ex-cuse a failure to meet the time requirements of the Federal Rules, the court said that it could not condone the fact that before the 20-day deadline expired, no person in any of the offices through which the summons and complaint passed was willing to take responsibility for the timely filing of a response.

In Wagg v Hall (1967, DC Pa) 42 FRD 589, a personal injury action in which the defendant moved to set aside a default judgment fully 2 1/2 years after its entry, it was alleged that the defendant's failure to appear was due solely to an "internal omission" of its insurer. Specifically, it was claimed that the New York office of the insurer, to which the summons and complaint had been delivered, for some reason failed to forward the papers or a notice thereof to the insurer's Philadelphia office, which was apparently responsible for defending the action. It was shown, however, that the defendant himself had been duly served with the summons and complaint, and that both the Philadelphia and the New York offices of the insurer had received two additional reminders of the pendency of the action from the plaintiff's counsel. Observing that a motion to set aside a default judgment may be granted under Rule 55(c) for "good cause shown," which includes Rule 60(b) "excusable neglect," the court concluded that the petitioners long period of inactivity, considered together with the nature of the insurer's "self-inflicted incommunicativeness," sug-gested a lack of diligence which could not be characterized as excusable. Denying the motion, the court further em-phasized that the defendant could not even allege that he had an ultimate defense on the merits to the action.


Cases:

Defendant's motion to set aside default judgment would be granted even though defendant's insurance carrier should not be allowed to offer excuse that suit papers were lost in mail, when there was no telephonic follow-up to determine if papers reached their destination provided defendant's insurance carrier would pay $1,000 to plaintiff's counsel to compensate him for time and resources that it took to unravel consequences of insurance carrier's lack of diligence. Goodwin v Roper Industries, Inc. (1986, DC Me) 113 FRD 53.

Defendant police officers' neglect in responding to civil rights action against them was excusable under Rule












55(c) where they sent summons and complaint to their insurer shortly after being served but insurer did not appoint counsel for officers until period for filing answer had expired. Bieros v Nicola (1994, ED Pa) 851 F Supp 681, com-plaint dismd (ED Pa) 860 F Supp 223, claim dismissed, complaint dismd, in part, motion den (ED Pa) 860 F Supp 226.

In action to recover damages allegedly sustained as result of motor vehicle accident in which default was en-tered, although defendant's claim that plaintiff's vehicle made illegal left turn in path of moving traffic meets re -quirement of allegation of meritorious defense, there was no good cause showing as required by Rule 55(c) for set-ting aside entry of default where defendant took summons and complaint to insurance company but summons and complaint were not received by counsel for defendant until after default had been entered and during 3 months be-tween taking of default and filing of motion to set aside default discussions took place between counsel for plaintiff and defendant concerning possible disclaimer of liability by insurance carrier, settlement of action, and setting aside default. Spica v Garczynski (ED Pa) 78 FRD 134.

[Top of Section]

[END OF SUPPLEMENT]

§ 23. Mistaken belief that suit papers related to another pending case

An insurance company may be called upon to defend several different lawsuits arising out of the same accident or occurrence, frequently involving one or more of the same parties. In this situation, it is not altogether surprising that insurers sometimes mistakenly identify suit papers received in connection with one case and treat them as perti-nent to a related but separate suit which is already pending. In the following decisions, the United States District Court for the Eastern District of Pennsylvania reached results apparently different, but perhaps reconcilable in view of the particular circumstances involved, on the question whether an entry of default should be set aside under Rule 55(c) where the failure to file a timely answer was alleged to have been caused by inaction of the defendant's insurer attributable to its mistaken impression that process papers bearing upon the instant case related to another suit aris -ing out of the same incident.

In Stuski v United States Lines Co. (1962, DC Pa) 31 FRD 188, an action for injuries sustained by a longshore-man on a ship owned by the defendant, it was shown that the plaintiff had instituted another suit against the defen-dant in a state court utilizing a substantially identical complaint, and that although the defendant entered an appear-ance and filed an answer in the state proceeding, he did not do so in the instant case. In a Rule 55(c) motion, filed over one year after a default had been entered, defense counsel alleged that although he delivered both complaints to the defendant's insurance carrier, only the complaint involved in the state court proceeding was returned to him for handling. It was apparently defense counsel's position that because the complaints were virtually identical, the in-surer must have confused them, so that its failure to return the one involved in the instant case was attributable to mistake or at most inadvertence. Accepting this argument, the court decided to grant the motion, noting that the de-fendant had not been guilty of any gross neglect, that no prejudice would result to the plaintiff from the opening of the default, and that the defendant had a meritorious defense to the action. It was emphasized in support of this de -termination that there was nothing in the record to indicate that the plaintiff's counsel had made any attempt to re-mind the defendant's attorney of his delinquency in the instant case, despite the fact that he had entered his appear -ance and filed an answer in the state court proceeding. The court further noted that since Rule 55(c) rather than Rule 60(b) was involved, the defendant was not obligated to seek relief within a one year period, it being sufficient that he moved to set aside the default within a reasonable time.

On the other hand, compare Medunic v Lederer (1974, DC Pa) 64 FRD 403, a personal injury action arising out of an automobile accident in which it was developed that around or before the time the defendant delivered the sum-mons and complaint to his insurance agent, who forwarded them to the legal office of the insurer, the plaintiff insti -tuted another suit against the same insurance company, by coincidence his own automobile insurer, on a cause of ac-tion arising out of the same accident. Erroneously assuming that the summons and complaint in the instant case, as well as a notice of a pretrial conference, related to the plaintiff's other suit, the defendant's insurer misplaced or ig -nored them and consequently failed to file a timely answer, resulting in the entry of a default. Observing that good


















cause must be shown in order to justify the opening of a default entry under Rule 55(c), and that in determining what constitutes good cause, reference is generally made to Rule 60(b), providing relief from a final judgment, including one by default, on grounds such as "mistake, inadvertence, surprise, or excusable neglect," the court held that the in -surer's error in the instant case did not satisfy such standards and accordingly denied the defendant's Rule 55(c) mo-tion to set aside the default. It was said that it would be unreasonable and unrealistic to characterize the conduct of the insurer as excusable negligence or inadvertence when similar conduct by an attorney would subject him to a malpractice action. On the contrary, the court observed, the record contained conclusive evidence of incompetence constituting gross or inexcusable negligence.

§ 24. Misplacement of suit papers through filing error

In the ensuing decision, where it was shown that the suit papers were simply misfiled upon their arrival at the office of the defendant's insurer, as a consequence of which no answer was served, the court concluded that the de -fendant had established the requisite good cause for setting aside an entry of default under Rule 55(c).

Although the defendant driver had dutifully forwarded the summons and complaint to his insurance carrier, and it was conceded that the suit papers arrived at the office of the insurer's legal department, it was shown in Ellington v Milne (1953, DC NC) 14 FRD 241, an action for personal injuries sustained in an automobile accident, that no record of the case ever made its way into the insurer's pending suit files, since some unknown person, presumably a careless employee of the insurer, had placed the summons and complaint in a "closed" file which was stored in a basement until discovered approximately 9 months after a default had been entered. Interpreting Rule 55(c) to autho-rize the setting aside of a default entry for good cause shown "in accordance with Rule 60(b)," and thus deeming re-lief appropriate under Rule 55(c) upon a showing of "mistake, inadvertence, surprise, or excusable neglect," as pro-vided in Rule 60(b), the court held that since the defendant himself was not guilty of neglect, and considering the fact that neither the legal department nor any officer of the insurer had knowledge that the summons had been issued until it was found in the storage files, it could be concluded that the failure to file a timely answer was attributable to mistake, inadvertence, surprise, or excusable neglect. It was conceded that someone in the employ of the insurer was undoubtedly careless in placing the summons and complaint in a "closed" file, but the court emphasized that such carelessness or indifference could not be attributed to any officer or agent of the insurer actually entrusted with the duty of handling the litigation. Pointing out that the defendant had shown the existence of a meritorious defense, and that where such is the case and there are no intervening equities, a court should be liberal in its determination of what constitutes a good excuse for the default, the court added that matters involving large sums, such as the instant case, should not be determined by default judgment if it can reasonably be avoided.RESEARCH REFERENCES

Primary Authority

U.S.C.A. Federal Rules of Civil Procedure Rule Rule 55(c)

A.L.R. Library

A.L.R. Quick Index, Default Judgment

A.L.R. Quick Index, Rules of Civil Procedure

A.L.R. Federal Quick Index, Default Judgment

Incompetence of counsel as ground for relief from state court civil judgment, 64 A.L.R.4th 323

Opening default or default judgment claimed to have been obtained because of attorney's mistake as to time or place of appearance, trial, or filing of necessary papers, 21 A.L.R.3d 1255

















Failure of liability insurer, after notification, to defend suit against insured, as warranting opening default against insured on ground of inadvertence or excusable neglect, 87 A.L.R.2d 870

Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179

Reliance by employee codefendant on promise or assumption that employer would defend in employee's behalf as ground for vacation of default judgment, 16 A.L.R.2d 1139

Misinformation by judge or clerk of court as to status of case or time of trial or hearing as ground for relief from judgment, 164 A.L.R. 537

Mistaken belief or contention that defendant had not been served, or had not been legally served, with sum-mons, as ground for setting aside default judgment, 153 A.L.R. 449

Actual knowledge of pendency of action, or evasion of personal service, as affecting right to relief from judg -ment by default on constructive or substitute service of process, 122 A.L.R. 624

Abandonment of or withdrawal from case by attorney as ground for opening or setting aside judgment by de-fault, 114 A.L.R. 279

What constitutes "appearance" under Rule 55(b)(2) of Federal Rules of Civil Procedure, providing that if party against whom default judgment is sought has "appeared" in action, that party must be served with notice of applica -tion for judgment, 139 A.L.R. Fed. 603

Construction and application of Rule 60(b)(5) of Federal Rules of Civil Procedure, authorizing relief from final judgment where its prospective application is inequitable, 117 A.L.R. Fed. 419

Efforts of plaintiff or plaintiff's agent for service of process as constituting or supporting finding of "good cause," under Rule 4(j) of Federal Rules of Civil Procedure, for failure to timely serve process upon defendant, 111 A.L.R. Fed. 503

Who has burden of proof in proceeding under Rule 60(b)(4) of Federal Rules of Civil Procedure to have default judgment set aside on ground that it is void for lack of jurisdiction, 102 A.L.R. Fed. 811

Default judgments against the United States under Rule 55(e) of the Federal Rules of Civil Procedure, 55 A.L.R. Fed. 190

What amounts to an "appearance" under Rule 55(b)(2) of Federal Rules of Civil Procedure providing that if the party against whom a judgment by default is sought has "appeared" in the action he shall be served with written no-tice of the application for judgment, 27 A.L.R. Fed. 620

Construction and application of provision of Rule 60(b) of Federal Rules of Civil Procedure that rule does not limit power of Federal District Court to set aside judgment for "fraud upon the court.", 19 A.L.R. Fed. 761

Construction and application of Rule 60(b)(6) of Federal Rules of Civil Procedure, authorizing relief from final judgment or order for "any other reason.", 15 A.L.R. Fed. 193




































Construction and application of Rule 60(b)(5) of Federal Rules of Civil Procedure authorizing relief from final judgment where its prospective application is inequitable, 14 A.L.R. Fed. 309

Propriety of conditions imposed in granting relief from judgment under Rule of Civil Procedure 60(b), 3 A.L.R. Fed. 956

Relief from judicial error by motion under FRCP Rule 60(b)(1), 1 A.L.R. Fed. 771

Legal Encyclopedias

Am. Jur. 2d, Judgments §§ 686, 708

Treatises and Practice Aids

Federal Procedure, L. Ed. §§ 51:19- 51:26

Forms

11 Am. Jur. Pleading and Practice Forms, Federal Practice & Procedure, Forms 1711-1715

15 Am. Jur. Pleading and Practice Forms, Judgments, Forms 464, 465, 470, 471, 477-499, 503-508, 527-531, 534

Federal Procedural Forms, L. Ed. §§ 1:1861-1:1866

Section 1[a] Footnotes:

[FN1] Insofar as the instant subject is concerned, the reader need no longer consult 21 A.L.R.3d 1255, which deals with the opening of a default or default judgment claimed to have been obtained because of an attorney's mistake as to time or place of appearance, trial, or filing of necessary papers, as well as 87 A.L.R.2d 870, which deals with whether the failure of a liability insurer, after notification, to defend a suit against its insured justifies the opening of a default against the insured on the grounds of inadvertence or excusable neglect.

[FN2] For the most part, coverage is limited to cases involving relief from mere entries of default, as op -posed to default judgments. It is generally recognized that the "good cause" test of Rule 55(c) applies only where a default entry is sought to be set aside, motions to open default judgments being governed by Rule 60(b) and the specific grounds for relief enumerated therein. A few isolated courts have directly applied the Rule 55(c) "good cause" standard in the latter situation, however, and such cases have been discussed herein for the sake of completeness. Decisions concerned solely with the vacation of default judgments have not otherwise been treated; and along the same lines, excluded are cases in which the court set aside or refused to set aside both a default judgment and an entry of default, but in so doing relied exclusively upon the grounds for relief specified in Rule 60(b) rather than the "good cause" standard of Rule 55(c). On the general subject of vacation of default judgments, see Am. Jur. 2d, Judgments § 686

To the extent that there was no express reliance upon the "good cause" standard of Rule 55(c), likewise ex-cluded are cases in which the court, in the exercise of its discretion, denied a Rule 55(b)(2) motion for the entry of a default judgment and in connection therewith granted the defaulting party leave to file an answer,














http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0124538&DocName=FEDPROFs1%3A1866&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0124538&DocName=FEDPROFs1%3A1861&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0121016&DocName=15AMJURPPJUDGMs534&FindType=Y













http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=125428&DocName=FEDPROCs51%3A26&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=125428&DocName=FEDPROCs51%3A19&FindType=Y









thus in effect setting aside a default entry. Some such decisions have involved a determination that Rule 55(c) "good cause" existed, and these are of course discussed herein, but in other cases of this nature the grant of permission to file a late answer was apparently based upon independent grounds. The matter of ju-dicial discretion in granting a default judgment is discussed in Am. Jur. 2d, Judgments § 1158.

[FN3] While this subdivision of the annotation is of course concerned with decisions in which it was clear that the defaulting party himself was responsible for the inaction giving rise to the default, it includes cases wherein the mistake or neglect causing such inaction was of a type which could have been committed by an attorney or insurer, but the court treated the inaction as that of the party himself without indicating whether an attorney or insurer was involved. For decisions in which the inaction was expressly attributed to the de-faulting party's retained counsel or insurer, see subdivisions III B and III C respectively.

Section 16[e] Footnotes:

[FN4] The attorney apparently entertained the mistaken impression that service of process had been ef-fected in accordance with Rule 4(e), which provides in pertinent part that whenever a statute or rule of court of the state in which the District Court is held provides for service of a summons upon a party "not an inhabitant of or found within the state," service may be made in the manner prescribed in the statute or rule. As previously noted, Rule 12(a) provides an exception to the 20-day period for the filing of an answer when service has been made under Rule 4(e) and a different time is prescribed in the pertinent state statute or rule of court.

Section 21[a] Footnotes:

[FN5] While the court's rather cryptic opinion does not expressly refer to any reason offered by defense counsel in explanation of the delay, it implies that his inaction during at least the last 2 weeks thereof may have been attributable to a hope that the case could be settled. Specifically, in criticizing counsel for the de -lay, the court observed that "a hope of settlement does not justify a failure to obtain an extension of time to answer." If such was in fact a reason offered to justify the delay, therefore, the court's pronouncement clearly indicates that its decision to open the default was not based thereon.

Section 21[b] Footnotes:

[FN6] The moving parties here were certain codefendants of the moving party in Elias v Pitucci (1952, DC Pa) 13 FRD 13, supra § 15[a].

Westlaw. © 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

29 A.L.R. Fed. 7

END OF DOCUMENT







http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0113556&DocName=AMJURJUDGMs1158&FindType=Y



29 ALR Fed 7

Documents

b mistake

b failure

b summary

b doubt

b introductionrelated

c mistake

c failure

b attorneys inaction