United States District Court, S.D. Illinois
November 2, 2005.
RBS EXCAVATING, INC., and RONALD RENSING, Plaintiffs,
HBD CONTRACTING, INC., Defendant.
The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
MEMORANDUM AND ORDER
On October 6, 2005, having obtained a Clerk's entry of default
against Defendant HBD, Plaintiffs moved for default judgment
under FEDERAL RULE OF CIVIL PROCEDURE 55(b). One week later,
before the Court took any action on the motion for default
judgment, HBD moved to set aside the "default judgment." The
Court construed HBD's motion as a motion to set aside the Clerk's
entry of default (no default judgment had been entered) and
directed Plaintiffs to respond. Plaintiffs did so on October
28th, and the Court now rules on HBD's motion to set aside
FEDERAL RULE OF CIVIL PROCEDURE 55(c) authorizes a District
Court, for good cause shown, to set aside an entry of default or
a default judgment. To merit relief under Rule 55(c), a defendant
must show not only good cause for the default, but also quick
action to correct the default and a meritorious defense to the
complaint. Robinson Engineering Co. Pension Plan and Trust v.
George , 223 F.3d 445, 453 (7th Cir. 2000). The test
applies to entries of default and default judgments alike, but
the test is applied more stringently if judgment has been
entered. U.S. v. Di Mucci, 879 F.2d 1488, 1495 (7th Cir.
1989). In the case at bar, HBD took quick action to correct the
default and may have a meritorious defense to the underlying
complaint. The problem lies with HBD demonstrating good cause for
The reason tendered for missing the deadline is straightforward
HBD, accustomed to litigation in Missouri state courts,
"assumed" it had 30 days (not 20 days) to respond to the
complaint. However, as Plaintiffs' counsel points out in his
response to the motion to set aside, the summons itself noted the
20-day answer deadline:
YOU ARE HEREBY SUMMONED and required to serve on
PLAINTIFF'S ATTORNEY [Greg Roosevelt's name and
address] an answer to the complaint . . ., within
20 days after service of this summons on you,
exclusive of date of service. If you fail to do so,
judgment by default will bet taken against you for
the relief demanded in the complaint.
Exhibit A to Doc. 8. If HBD simply read the summons, that would
have corrected any erroneous assumption regarding the answer
HBD's counsel emphasizes that (a) his firm was not contacted
until October 11, 2005 (five days after the Court had entered
the default against HBD), and (b) HBD's inaction prior to
retaining counsel was the result of excusable neglect or mistake
regarding the answer deadline. But the law of this Circuit holds,
as a general rule, that "neither ignorance nor carelessness on
the part of the litigant or his attorney" constitutes good
cause to set aside default. North Central Illinois Laborers'
District Council v. S.J. Groves & Sons Co., Inc., 842 F.2d 164,
167 (7th Cir. 1988) (emphasis in original). In North
Central, the Seventh Circuit affirmed the District Court's
refusal to set aside a default judgment, rejecting an argument
that Defendant's failure to take timely action was due to mistake
or excusable neglect on the part of overburdened in-house
counsel. Stated another way neither inadvertence nor ignorance of an
applicable deadline, unfamiliarity with the rules, or an
erroneous belief as to the need to file an answer rises to the
level of good cause for default. Norgaard v. DePuy Orthopaedics,
Inc., 121 F.3d 1074, 1075 (7th Cir. 1997); Prizevoits v.
Indiana Bell Telephone Co., 76 F.3d 132, 133 (7th Cir.
1996). Nor does lack of an attorney (HBD apparently had no
counsel when the Clerk entered the default herein).
In Jones v. Phipps, 37 F.3d 158, 163 (7th Cir. 1994),
the Seventh Circuit explained:
Although civil litigants who represents themselves . . .
benefit from various procedural protections not
otherwise afforded to the ordinary
attorney-represented litigant, . . . pro se litigants
are not entitled to a general dispensation from the
rules of procedure or court imposed deadlines.
The Seventh Circuit reiterated this conclusion in an
unpublished 2002 case which relied on (and collected the holdings
of) Prizevoits, Jones v. Phipps, and the Supreme Court case of
Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. Partnership,
507 U.S. 380, 389 (1993):
inadvertence, ignorance of the rules, or mistakes
construing the rules are not ordinarily recognized as
forms of excusable neglect. . . . Here, Noren's
excuse is that she did not understand her obligation
to either timely file an answer . . . or to assert a
defense by motion authorized under Federal Rule of
Civil Procedure 12. But Noren's inability or refusal
to read and follow the Federal Rules' plain language
certainly does not rise to the level of excusable
neglect. . . . That standard is reserved for
miscarriages of justice caused, for instance, by a
judicial officer's misrepresentations, lost mail, or
plausible misinterpretations of ambiguous rules. . . .
This is true even for litigants like Noren who
appear pro se.
Casio Computer Co., Ltd. v. Noren, 35 Fed. Appx. 250 (7th
Additionally, in Pretzel & Stouffer, Chartered v. Imperial
Adjusters, Inc., 28 F.3d 42, 46 (7th Cir. 1994), the
Seventh Circuit noted: "We have long since moved away from the
position of disfavoring default judgment. . . ." Id.,
28 F.3d at 47. In the instant case, HBD has not demonstrated good cause for
the default. As the record before this Court reveals, the summons
clearly stated the 20-day answer deadline, and HBD had known of
this imminent litigation (and been in communication with
Plaintiffs' counsel) for at least six months prior to receiving
the summons. Accordingly, the Court DENIES HBD's motion to set
aside the entry of default (Doc. 8).
Plaintiffs' motion for default judgment (Doc. 6) remains
pending. The Court now SETS A HEARING on that motion, at which
Plaintiffs' counsel shall appear and present evidence supporting
his request that the Court enter judgment in Plaintiffs' favor
for $82, 913.50. The hearing shall take place at 2:00 p.m. on
Tuesday, November 22, 2005.
IT IS SO ORDERED.
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