United States District Court, D. Colorado
KENNETH R. DAVIDSON, Plaintiff,
BANK OF AMERICA N.A., and GREEN TREE SERVICING LLC, Defendants.
KATHLEEN M. TAFOYA, Magistrate Judge.
This case comes before the court on Plaintiff's "Motion for Entry of Defendant Judgment and Supporting Memorandum for Final Orders to Award Relief" (Doc. No. 11, filed July 18, 2014 [hereinafter "First Motion for Default Judgment"]), "Motion for Default Judgment in Part" (Doc. No. 16, filed Aug. 11, 2014 [hereinafter "Second Motion for Default Judgment"]) and "Motion to Strike Defendant Bank of America N.A.'s Answer to Complaint" (Doc. No. 28, filed Dec. 12, 2014),  as well as Defendant Green Tree Servicing LLC's ("Green Tree") "Amended Motion to Set Aside Entry of Default and for Extension of Time to Respond to Complaint" (Doc. No. 14, filed Aug. 6, 2014.)
Plaintiff initiated this action on June 4, 2014 by filing his Complaint. (Doc. No. 1 [Compl.].) On June 11, 2014, Plaintiff filed Affidavits of Service indicating that Green Tree had been served on June 5, 2014 (Doc. No. 4) and Defendant Bank of America, N.A. ("Bank of America") had been served on June 9, 2014 (Doc. No. 5). Accordingly the deadlines for Green Tree and Bank of America to answer or otherwise respond to Plaintiff's Complaint were June 26 and June 30, 2014, respectively. Fed.R.Civ.P. 12(a)(1)(A). Defendants failed to answer or otherwise respond to Plaintiff's Complaint by those dates.
On July 9, 2014, Plaintiff filed a Motion for Entry of Default. (Doc. No. 9.) The Clerk of Court entered default against Green Tree and Bank of America on July 10, 2014. (Doc. No. 10.)
Plaintiff filed his first Motion for Default Judgment, which seeks default judgment against both Green Tree and Bank of America, on July 18, 2014. ( See 1st Mot. Default J.) Plaintiff filed his Second Motion for Default Judgment, which seeks default against Bank of America only, on August 11, 2014. ( See 2nd Mot. Default.)
That motion will be addressed by separate order or recommendation. As such, the court does not address the request for either "summary judgment" or a "cease and desist order" contained in the title of Plaintiff's Motion to Strike.
Green Tree filed its Motion to Set Aside Default Judgment on August 6, 2014. ( See Mot. Set Aside Default.) Plaintiff filed a Response on August 11, 2014. (Doc. No. 15 [Resp. Green Tree Mot. Set Aside Default].) Green Tree did not file a reply.
On August 20, 2014, Bank of America filed a Motion to Quash Service of Process. (Doc. No. 19.) On November 18, 2014, the court denied Bank of America's Motion to Quash, finding that Plaintiff had set forth prima facie evidence of service, which Bank of America failed to rebut by strong and clear evidence. (Order, Doc. No. 25.)
Six days later, Bank of America filed its Answer. (Doc. No. 26, filed November 24, 2014 [BOA Answer]) and then moved for a 21-day extension of time to respond to Plaintiff's First Motion for Default Judgment on December 1, 2014 (Doc. No. 27.) The court granted this extension of time on December 3, 2014 (Minute Order, Doc. No. 31.) After receiving a second extension of time (Minute Order, Doc. No. 38), Bank of America filed its "Response to Motion for Default Judgment and Request to Set Aside Entry of Default" on January 5, 2015. (Doc. No. 39 [Resp. to Pltf's Mots. for Default J].) Plaintiff filed his "Response [sic] to Bank of America N.A. [sic] Response to Motion for Default Judgment and Set Aside Default Judgment" on January 7, 2015. (Doc. No. 40 [Reply Mots. Default J.])
Plaintiff filed his Motion to Strike Bank of America's Answer on December 2, 2014. (Doc. No. 28.) After receiving an extension of time ( see Minute Order, Doc. No. 38), Bank of America filed a Response to the Motion to Strike on January 9, 2015. (Doc. No. 41.) Plaintiff did not file a timely reply.
The court addresses Green Tree's Motion to Set Aside Entry of Default and Bank of America's request to set aside the entry of default contained in its Response to Plaintiff's First Motion for Default Judgment.
The Court "may set aside an entry of default for good cause...." Fed.R.Civ.P. 55(c). "[T]he good cause required by Fed.R.Civ.P. 55(c) for setting aside entry of default poses a lesser standard for the defaulting party than the excusable neglect which must be shown for relief from judgment under Fed.R.Civ.P. 60(b)." Dennis ...