United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' pro se motions
for entry of Clerk's default (Doc. Nos. 27, 30) and
motions for default judgment (Doc. Nos. 28,
Plaintiff Timothy Whittaker submitted an affidavit stating
that Defendant was served with the summons and complaint on
January 7, 2019 (Doc. No. 27), which made Defendants'
answer due on or before January 28, 2019. Defendant filed its
responsive pleading on January 29, 2019, one day late. Thus,
Plaintiffs seek default judgment.
submitted an affidavit by defense counsel stating that
Plaintiff improperly served only a summons on its registered
agent on January 7, 2019, and that it was served with both
the summons and complaint the next day. Thus, Defendant
argues its responsive pleading was due on January 29, not
January 28. In the alternative, Defendant argues that it
“should not be punished for any inadvertent oversight
caused, at least in part, by Plaintiffs' inability to
properly serve Defendant.” (Doc. No. 29).
entry of a default judgment is committed to the sound
discretion of the district court. U.S. on Behalf of &
for Use of Time Equip. Rental & Sales, Inc. v.
Harre, 983 F.2d 128, 130 (8th Cir. 1993). Default
judgments, however, are not favored by the law. Id.
“The entry of a default judgment should be a
‘rare judicial act.'” Berkley Assurance
Co. v. BMG Serv. Grp. LLC, No. 4:18-CV-2082 CAS, 2019 WL
861265, at *1 (E.D. Mo. Feb. 22, 2019) (citing Comiskey
v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir. 1993)
(quoted case omitted)). There is a judicial preference for
adjudication on the merits. Oberstar v. F.D.I.C.,
987 F.2d 494, 504 (8th Cir. 1993).
Rule of Civil Procedure 4(c) provides that “A summons
must be served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served
within the time allowed by Rule 4(m) . . . .” If
Plaintiffs properly served Defendant with both the summons
and complaint on January 8, then Defendant's responsive
pleading was timely filed, and Plaintiffs' motions fail.
even if Plaintiff properly served Defendant on January 7 and
Defendant's responsive pleading was filed a day late, the
Court will nevertheless deny Plaintiffs' motions. Default
judgment is not an appropriate sanction for a “marginal
failure to comply with time requirements.” Ackra
Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856
(8th Cir. 1996) (internal citation omitted). Filing a
responsive pleading one day late is a marginal failure to
comply. See Grover-Tsimi v. State of Minn., 449
Fed.Appx. 529, 530 (8th Cir. 2011) (affirming denial of a
motion for default judgment because the responsive pleadings
was only one day late).
Defendant has indicated a desire to defend against the
action. See American States Insurance
Corporation v. Technical Surfacing, Inc., 178 F.R.D.
518, 521 (D. Minn. 1998) (“Accordingly, ‘[w]hen a
defendant appears and indicates a desire to contest an
action, a court may exercise its discretion to refuse to
enter default, in accordance with the policy of allowing
cases to be tried on their merits.'”). Thus,
Plaintiffs' motions for Clerk's entry of default and
default judgment will be denied.
final matter, the Court notes that on February 19, 2019,
Plaintiffs filed a sur-reply to Defendant's motion to
dismiss. (Doc. No. 26). Under Local Rule 7-4.01(C), any party
wishing to file a sur-reply must request leave of the Court.
Plaintiffs did not do so here. The Court will not in this
instance strike Plaintiffs' sur-reply from the record.
However, Plaintiffs are reminded that although they are
proceeding pro se, they are not excused from following
federal and local rules. See Burgs v. Sissel, 745
F.2d 526, 528 (8th Cir. 1984) (“Although pro se
pleadings are to be construed liberally, pro se litigants are
not excused from failing to comply with substantive and
IT IS HEREBY ORDERED that Plaintiffs'
motions for entry of Clerk's default (Doc. Nos. 27, 30)
and motions for default judgment (Doc. Nos. 28, 31) are
 On February 25, 2019, Plaintiffs filed
a motion for entry of Clerk's default and a motion for
default judgment. (Doc. Nos. 27 and 28). On March 7, 2019,
Plaintiffs filed another motion for entry of Clerk's
default and motion for default judgment. (Doc. Nos. 30 and
31). Upon review, it appears the motions filed on ...