Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Campbell v. Baylard, Billington, Dempsey & Jensen, P.C.

United States District Court, E.D. Missouri, Eastern Division

March 22, 2018

DAVE CAMPBELL, et al., Plaintiffs,
v.
BAYLARD, BILLINGTON, DEMPSEY & JENSEN, P.C., et al., Defendants.

          MEMORANDUM & ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         This 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, 187, 189).

         Also 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.

         BACKGROUND

         Plaintiffs 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).

         On 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. No. 155).

         On 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. No. 177).

         In 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.

         Plaintiffs 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.

         In its 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 distinct entity.

         In their sur-reply, [1] 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.

         DISCUSSION

         The 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 follows:

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.