Judge Ted Stewart – Motion to Set Aside Default Judgment granted; Motion to Dismiss for Untimely Service denied

JANET S. JONES, Plaintiff, vs. SALT LAKE COMMUNITY COLLEGE, DAVID BURKE, and KEVIN SPRAGUE, individuals, and JOHN DOES 1-10., Defendants.

Case No. 2:04-CV-1183 TS

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 7466

February 1, 2007

Plaintiff filed a Complaint alleging, among other claims, Title VII violations against all defendants.  Defendant Kevin Sprague failed to timely Answer.  Accordingly, Plaintiff filed a Motion for Entry of Default and the Clerk entered default against Sprague.

The Court stated: “For good cause shown the court may set aside an entry of default.” Fed. R. Civ. P. 55(c). . . . The relevant factors for vacating an entry of default include determining whether “(1) the moving party’s culpable conduct did not cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving party will not be prejudiced by setting aside the entry of default.”

Motion to Set Aside Default Judgment granted.

Defendant Sprague countered with a Motion to Dismiss due to Untimely Service.  Service was not made until 22 months after the Complaint was filed.  Federal Rule of Civil Procedure 4(m) requires service within 120 after filing of the complaint unless the plaintiff can show “good cause” for extending such deadline.

Plaintiff claims that she had good cause for failure to timely serve, since she simply “could not find him.” Defendant claims that plaintiff’s efforts “to find him” were less than  stellar, and in any case, far too late.

After hearing such arguments, the Court held that plaintiff  (“narrowly”) demonstrated sufficient good cause to extend the time allowed for service.

Motion to Dismiss for Untimely Service denied.

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One Comment on “Judge Ted Stewart – Motion to Set Aside Default Judgment granted; Motion to Dismiss for Untimely Service denied”

  1. Aaron Says:

    This case is very similar to my problem. Ford Motor credit has filed a garnishment on check. I recently found out the they had sent documents to wrong addresses, but the servicers always claim in the Acknowledgement of Service that this is accurate subject to perjury. Well, they did not send them to the correct addresses. And a Judgement was entered as a default judgement. Now they say it is too late to file an appeal, but what about a Motion to vacate a default judgement? Thanks


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