United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Woodland Lakes
Community Neighborhood Watch's motions to set aside
clerk's entry of default (Doc. No. 176) and for extension
of time to file responsive pleading out of time (Doc. No.
177). Plaintiffs oppose both motions. (Doc. Nos. 185, 186,
before the Court are Plaintiffs' motions for leave to
file additional memoranda in opposition to Defendant Woodland
Lakes Community Neighborhood Watch's motions to set aside
and for extension of time. (Doc. No. 196 and 197).
Plaintiffs' motions to file additional memoranda in
opposition will be granted, and the Court reviewed those
memoranda before making its ruling. For the reasons set forth
below, Defendants' motions will be granted.
filed this action on September 11, 2017, naming 41
Defendants. Plaintiffs served the summons and complaint upon
Defendant Woodland Lakes Community Neighborhood Watch
(“Neighborhood Watch”) and, when Neighborhood
Watch failed to file a responsive pleading, filed a motion
for default judgment on December 11, 2017. (Doc. No. 79).
December 18, 2017, Plaintiffs sought leave to file a second
amended complaint, which the Court granted. (Doc. No. 110).
Plaintiffs then withdrew by motion their motion for default
judgment against Defendant Neighborhood Watch. (Doc. No.
141). That same day, February 5, 2018, Plaintiffs filed a
second motion for entry of clerk's default against
Neighborhood Watch (Doc. No. 145), and, on February 6, 2018,
the Clerk of the Court granted Plaintiffs' motion (Doc.
February 27, 2018, Neighborhood Watch filed a motion to set
aside the Clerk's entry of default. (Doc. No. 176). In
support, Defendant Neighborhood Watch states that it received
the second amended complaint through a 77-year-old part-time
volunteer treasurer of the organization who lost track of the
deadline to respond to the second amended complaint and was
further confused by Plaintiffs' motion to withdraw their
initial motion for default. Neighborhood Watch claims that it
has a meritorious defense and that Plaintiffs would not be
prejudiced if the default were to be set aside, given that
the case is still in the early stages of litigation.
Neighborhood Watch advanced similar arguments in its motion
for leave to file a responsive pleading out of time. (Doc.
support of its motion, Neighborhood Watch submitted the
affidavit of Francis Oscar Darian, Jr., the president of
Neighborhood Watch, stating that the treasurer was
responsible for receiving mail for the organization and was
confused by the various documents sent by Plaintiffs. (Doc.
No. 176-1). Mr. Darian also stated that upon learning of the
Clerk's entry of default, which it had previously
believed had been withdrawn by motion, it retained counsel
and now seeks to represent its interests in the lawsuit.
oppose the motion to set aside default, arguing that Mr.
Darian's affidavit was false and constituted hearsay
evidence that could not be relied upon by the Court. (Doc.
No. 186). They further argue that Neighborhood Watch's
failure to timely respond was intentional, citing the fact
that the registered agent's husband is also a named
Defendant in this action. Plaintiffs believe that Mr. Darian
was aware of the lawsuit, but was using the registered agent
for a “scape goat” for his decision to refuse or
return the summons and complaint. Thus, Plaintiffs contend
that Neighborhood Watch cannot satisfy the good cause
requirement for setting aside a Clerk's entry of default.
Reply, Neighborhood Watch submits the affidavit of Patricia
Deis, the treasurer and registered agent of Neighborhood
Watch, to alleviate the hearsay concerns of Plaintiffs. (Doc.
No. 195). It contends that Plaintiffs failed to distinguish
between the actions and inactions of Neighborhood Watch's
officers or directors performed in their official versus
unofficial capacities. (Doc. No. 195). It further notes that
Plaintiffs conflate these actions and inactions with those of
the Woodland Lakes Trusteeship, Inc., which is a separate and
their sur-reply,  Plaintiffs assert that the submission of
Patricia Deis's affidavit was procedurally improper and
“has prejudiced Plaintiffs' Response.” (Doc.
196-2 at 3). Plaintiffs then document a number of actions by
Mr. Darian, such as collecting $2, 000 from Plaintiffs and
forcing Plaintiffs to move their vehicle from a parking spot
in 2011 as evidence of his bad faith toward Plaintiffs.
court may “set aside an entry of default for good
cause.” Fed.R.Civ.P. 55(c); see also Johnson v.
Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir.
1998). The showing necessary to set aside a default entry is
not as stringent as that necessary to vacate a default
judgment. Johnson, 140 F.3d at 784. The Eighth
Circuit has explained the reason for this distinction as
There is a judicial preference for adjudication on the merits
. . ., and it is likely that a party who promptly attacks an
entry of default, rather than waiting for grant of a default
judgment, was guilty of an ...