United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
diversity matter is before the Court on defendant Mississippi
Lime Company's Motion to Set Aside Clerk's Default
and for Leave to File a Responsive Pleading Out of Time. The
motion is accompanied by an affidavit. Plaintiff George Spruk
opposes the motion. Defendant's reply is supported by an
additional affidavit and documents. For the following
reasons, the Motion will be granted, and the Clerk's
Entry of Default previously entered in this matter will be
action was filed on June 16, 2017 by plaintiff George Spruk
against Mississippi Lime Company (“defendant” or
“MLC”). Plaintiff alleges that he sustained
significant physical injuries on August 15, 2014 when he
drove a tanker truck to defendant's St. Genevieve,
Missouri facility, and was struck by a train car after he
exited the tanker truck. Plaintiff contends that his injury
was the direct result of MLC's negligence in that (1) its
employee operating the train failed to keep a careful
lookout; (2) it failed to train and/or supervise its employee
operating the train car; (3) it failed to inform plaintiff
how and where to proceed for the loading of his tanker; (4)
it failed to warn plaintiff of the active railroad track in
close proximity to where truck drivers such as plaintiff load
lime; and/or (5) it designed its loading facility so that it
was unsafe for visiting drivers on the premises for the
loading of lime. Complaint, ¶ 14(a)-(e).
registered agent was served with summons and complaint on
June 23, 2017, so MLC's response was due by July 14,
2017. MLC did not respond timely to the complaint. On July
24, 2017, plaintiff filed a motion for entry of clerk's
default under Rule 55(a), Federal Rules of Civil Procedure,
and for default judgment under Rule 55(b)(2). A Clerk's
Entry of Default under Rule 55(a) was entered July 28, 2018
(Doc. 7), and the case was transferred to the undersigned.
August 4, 2017, MLC filed the instant motion to set aside the
entry of default. MLC asserts that the entry of default
should be set aside because (1) the Clerk exceeded the
authority to enter default under Rule 55(a) because
plaintiff's motion for entry of default was not
accompanied by an affidavit as required by the Rule; and (2)
MLC's failure to respond was unintentional, it has a
meritorious defense, and plaintiff would not be prejudiced if
the default were excused.
entry of default under Rule 55(a) will not be set aside
automatically. Rule 55(c), Fed. R. Civ. P., provides that a
court may set aside an entry of default for good cause. The
Eighth Circuit has instructed that when “examining
whether good cause exists, a district court should weigh
‘whether the conduct of the defaulting party was
blameworthy or culpable, whether the defaulting party has a
meritorious defense, and whether the other party would be
prejudiced if the default were excused.'”
Stephenson v. El-Batrawi, 524 F.3d 907, 912 (8th
Cir. 2008) (quoting Johnson v. Dayton Elec. Mfg.
Co., 140 F.3d 781, 784 (8th Cir. 1998)).
applying this analysis, the Eighth Circuit “focus[es]
heavily on the blameworthiness of the defaulting
party.” Johnson, 140 F.3d at 784. In so doing,
Eighth Circuit “cases have consistently sought to
distinguish between contumacious or intentional delay or
disregard for deadlines and procedural rules, and a
‘marginal failure' to meet pleading or other
deadlines. We have rarely, if ever, excused the
former.” Id. (citing cases). In contrast, the
Eighth Circuit “has often granted Rule 55(c) and Rule
60(b) relief for marginal failures when there were
meritorious defenses and an absence of prejudice.”
Id. (citing cases).
a meritorious defense exists is determined by examining
whether the proffered evidence would permit a finding for the
defaulting party.” Stephenson, 524 F.3d at 914
(internal quotation marks and quoted case omitted).
“The underlying concern is whether there is some
possibility that the outcome after a full trial will be
contrary to the result achieved by the default.”
Id. (internal quotation marks, punctuation and
quoted case omitted). With respect to the issue of prejudice,
“delay alone, or the fact the defaulting party would be
permitted to defend on the merits, are insufficient grounds
to establish the requisite prejudice to the plaintiff.”
Id. at 915. “Setting aside a default must
prejudice plaintiff in a more concrete way, such as loss of
evidence, increased difficulties in discovery, or greater
opportunities for fraud and collusion.” Id.
(internal quotation marks and quoted case omitted).
Court is mindful of the strong policy underlying the Federal
Rules of Civil Procedure favoring decisions on the merits
rather than resolution of cases through default judgment.
See United States ex rel. Time Equip. Rental & Sales,
Inc. v. Harre, 983 F.2d 128, 130 (8th Cir. 1993).
“The entry of a default judgment should be a
‘rare judicial act.'” Comiskey v. JFTJ
Corp., 989 F.2d 1007, 1009 (8th Cir. 1993) (quoted case
motion to set aside the Clerk's Entry of Default and its
reply memorandum are accompanied by two affidavits of
defendant's Vice President of Finance, Mr. Henken, and an
affidavit of one of MLC's attorneys, Mr. Daniel Godar of
Armstrong Teasdale LLP. Taken together, the affidavits and
the exhibits thereto establish that shortly after the
complaint was filed in this case on June 16, 2017, Mr. Henken
was contacted by several law firms who notified him of the
suit and offered to represent MLC. Mr. Henken contacted Mr.
Godar by telephone to discuss the suit, and Mr. Godar advised
Mr. Henken to notify MLC's insurance company that suit
had been filed.
19, 2017, Mr. Godar received an email from MLC's
registered agent, The Corporation Company
(“TCC”), confirming that plaintiff filed the
complaint. The same day, Mr. Godar was included on an email
from MLC's insurance broker to MLC's insurance
company, regarding the claim plaintiff had filed before the
lawsuit was filed. Based on the timing and subject of the
email, Mr. Godar believed ...