United States District Court, D. Colorado
DANIEL ROOD, CHRISTOPHER ABAIRE, and, FLOYD SMITH, individuals, on behalf of themselves and all others similarly situated, Plaintiffs,
PAMELA K. BRUMMIT, an individual, d/b/a COLORADO PROFESSIONAL SECURITY SERVICES, COPSS, LLC, registered trade name, and ROBERT ROGERS, an individual, Defendants.
T. Varholak United States Magistrate Judge
matter is before the Court on Defendants' Motion to Set
Aside Default Judgment [#36] (the
“Motion”). The Motion is before the Court on the
Parties' consent to have a United States magistrate judge
conduct all proceedings in this action and to order the entry
of a final judgment [#16, 17]. This Court has carefully
considered the Motion and related briefing, the case file,
and the applicable case law, and has determined that oral
argument would not materially assist in the disposition of
the Motion. For the following reasons, I
GRANT the Motion.
August 22, 2016, Plaintiffs filed their initial Complaint.
[#1] Before the deadline to Answer, Plaintiffs filed an
Amended Complaint. [#6] All defendants except Robert Rogers
answered the Amended Complaint on October 6, 2016 [#13] and
Rogers answer the Amended Complaint on October 20, 2016
[#15]. Counsel for all parties attended and participated in
the Scheduling Conference conducted on November 14, 2016.
November 17, 2016, Plaintiffs filed a Motion for Leave to
Amend Complaint. [#22] This Court granted that motion on
December 13, 2016. [#24] Plaintiffs filed their Second
Amended Complaint on December 19, 2016. [#26] Pursuant to
Federal Rule of Civil Procedure 15(a)(3), Defendants'
response to the Second Amended Complaint was due 14 days
after service of the amended pleading. Because counsel for
Defendants had already appeared in the action, service was
accomplished once the Second Amended Complaint was filed on
the Court's electronic filing system. [#26 at 22;
see Fed. R. Civ. P. 5; D.C.COLO.LCivR 5.1(d)].
February 6, 2017, Defendants had not answered or otherwise
responded to the Second Amended Complaint and thus Plaintiffs
moved for entry of default as to all Defendants. [#31] On
February 9, 2017, the Clerk of Court entered default against
Colorado Professional Services, Inc. [#32] The Clerk did not
enter default as to the remaining Defendants because
Plaintiffs had failed to submit an affidavit concerning those
Defendants' military status as required by the Service
Members Civil Relief Act. [#33] That same day,
Plaintiffs' counsel submitted the required affidavit
[#34], and the Clerk entered default against the remaining
Defendants on the following day [#35].
same day, February 10, 2017, Defendants filed the instant
Motion. [#36] As detailed further below, Defendants explained
that their counsel had fallen ill immediately after the
Second Amended Complaint was filed, and that illness
contributed to Defendants' failure to answer.
[Id.] Plaintiffs filed their Response to the Motion
on February 13, 2017. [#38]
“may set aside an entry of default for good
cause.” Fed.R.Civ.P. 55(c). “In deciding whether
to set aside an entry of default, courts may consider, among
other things, ‘whether the default was willful, whether
setting it aside would prejudice the adversary, and whether a
meritorious defense is presented.'” Pinson v.
Equifax Credit Info. Servs., Inc., 316 Fed. App'x
744, 750 (10th Cir. 2009) (quoting Dierschke v.
O'Cheskey, 975 F.2d 181, 183 (5th Cir. 1992)). The
Tenth Circuit has upheld a district court's decision to
set aside an entry of default when the defendants'
failure to answer was the result of negligence, as opposed to
willful disregard. See Watkins, 551 Fed. App'x
at 958. Indeed, the Tenth Circuit has expressed a strong
preference for deciding cases on the merits as opposed to
default. See Rains v. Rains, 946 F.2d 731, 732-33
(10th Cir. 1991).
these factors, the Court determines that the entry of default
should be set aside. First, Defendants' failure to answer
was the result of negligence, not willful disregard.
Defendants answered the Amended Complaint in this matter
[#13, 15] and attended the Scheduling Conference [#20]. The
Second Amended Complaint was filed on December 19, 2016.
[#26] The following day, Defendants' counsel was unable
to work and was admitted to the hospital in the early morning
hours of December 21, 2016. [#36 at 2] Defendants'
counsel underwent heart surgery the next day. [Id.]
Complications from that surgery persisted through January 16,
2017. [Id. at 3] Defendants' counsel asserts
that he communicated these issues with Plaintiff's
counsel on January 13, 2016, and Plaintiff's counsel
stated that he would not be enforcing any of the deadlines
due to the illness. [Id. at 4] Plaintiff's
counsel disputes at least some of these contentions and
asserts that Defendants' counsel stated that he was
“fine now” in a January 6, 2017 email to
Plaintiffs' counsel. [#31 at 3]
on these representations, it appears that the failure to
answer was the result of negligence, as opposed to willful
disregard. Defendants' counsel was ill for some of the
time involved. While it does appear that Defendants'
counsel had returned to work by January 16, 2017 and still
did not answer by February 6, 2017, nothing suggests that
this failure to answer was willful.
Plaintiffs have not even alleged, let alone demonstrated, any
prejudice. Nor can the Court imagine any prejudice to
Plaintiffs. Plaintiffs concede that Defendants continued to
participate in discovery during the period after the response
to the Second Amended Complaint was due [#31 at 4-5] and
Defendants filed the instant Motion the same day that default
was entered against the individual defendants. Moreover, the
Court issues this Order setting aside the default within a
week of the entry of default and before entry of a default
judgment. Accordingly, this factor too supports setting aside
the entry of default.
with respect to the merits of the defense, Defendants largely
dispute Plaintiffs' factual allegations. [#36 at 5-6]
Resolving such issues would require this Court to engage in a
“thorough inquiry ill suited to resolving a motion to
set aside.” Sec. Nat'l Mortg. Co. v. Head,
13-cv-03020-PAB-BNB, 2014 WL 4627483, at *3 (D. Colo. Sept.
15, 2014). Thus, this third factor also supports setting
aside the entries of default.
reasons stated above, it is ORDERED that Plaintiff's
Motion to Set Aside Default Judgment [#36] is GRANTED. The
defaults entered against defendants [#32, 35] are VACATED.
Defendants shall have until March 1, ...