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Karen Burdick v. David Sean Dufek

May 21, 2012

KAREN BURDICK,
PLAINTIFF,
v.
DAVID SEAN DUFEK, D/B/A LAW OFFICE OF DAVID SEAN DUFEK,
DEFENDANT.



The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION TO VACATE ENTRY OF DEFAULT AND DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

INTRODUCTION

Plaintiff Karen Burdick filed this lawsuit, invoking this court's federal question jurisdiction under 28 U.S.C. § 1331 and pursuant to 15 U.S.C. § 1692k(d), and alleging that defendant David Sean Dufek violated the Fair Debt Collection Practices Act (FDCPA"). See Docket No. 1. Defendant did not answer her complaint within 21 days after service of the summons and complaint as required under Fed. R. Civ. P. 12(a)(1)(A)(I). Ms. Burdick accordingly obtained the Clerk's Entry of Default on February 22, 2012.

See Docket No. 16. Ms. Burdick now moves the court for entry of default judgment against Mr. Dufek. See Docket Nos. 11, 18. Mr. Dufek moves to vacate the Clerk's Entry of Default by Mr. Dufek and opposes the plaintiff's motion for entry of default judgment against him. See Docket No. 24. The district court, the Honorable Jeffrey L. Viken, referred these motions to this magistrate judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 66.

FACTS

The facts pertinent to the motions pending before this court are as follows. Ms. Burdick's verified complaint alleges claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (hereinafter "FDCPA") against Mr. Dufek. See Docket No. 1. Mr. Dufek was personally served with the summons and complaint on September 21, 2011. See Docket No. 10. After receiving the summons and complaint, Mr. Dufek contacted counsel for Ms. Burdick in an effort to resolve the matter before answering the complaint. See Docket No. 29 at ¶ 18. However, Mr. Dufek and counsel for Ms. Burdick were unable to resolve the matter. Mr. Dufek then made an offer of judgment (Docket No. 9), which Ms. Burdick rejected. Thereafter, Mr. Dufek did not file an answer to the complaint.

On February 17, 2012, counsel for Ms. Burdick filed a motion for entry of default and default judgment. See Docket No. 11. On February 22, 2012, the Clerk of Court filed an entry of default pursuant to Federal Rule of Civil Procedure 55. See Docket No. 16. On February 24, 2012, Ms. Burdick filed a second motion for default judgment pursuant to Rule 55(b)(2). See Docket No. 18.

On February 28, 2012, Mr. Dufek filed a motion to vacate entry of default, a motion for relief from D.S.D. Civ. LR 7.1, and leave to file a brief and additional affidavits. See Docket Nos. 24-25. The district court granted Mr. Dufek's motion for leave to file a brief and additional affidavits.

Before the court now is Ms. Burdick's motion for default judgment. See Docket No. 18. Mr. Dufek opposes the motion for default judgment and has also filed a motion to vacate the Clerk of Court's entry of default previously entered on February 22, 2012. See Docket No. 24.

DISCUSSION

The summons in this case properly set forth the obligations of Mr. Dufek following service of the summons and complaint. See Docket No. 4. "Within 21 days after service of this summons on you (not counting the day your receive it) ... you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure ... You must also file your answer or motion with the court." Id.

"When a party has 'failed to plead or otherwise defend' against a pleading listed in Rule 7(a) [a compliant], entry of default under Rule 55(a) must precede grant of default judgment under Rule 55(b)." Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998). In the event a defendant fails to timely file an answer or other responsive pleading, "the clerk must enter the party's default." Fed. R. Civ. P. 55(a). In this case, the Clerk of Court filed entry of default in favor of Ms. Burdick on February 22, 2012. See Docket No. 16.

Federal Rule of Civil Procedure 55(c) governs setting aside the entry of default. Under Rule 55, "[t]he court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Although the same factors are typically relevant in deciding whether to set aside entries of default and default judgments, "most decisions...hold that relief from a default judgment requires a stronger showing of excuse than relief from a mere default order." Johnson, 140 F.3d at 783 (citing Connecticut Nat'l Mortg. Co. v. Brandstatter, 897 F.2d 883, 885 (7th Cir. 1990)). "This is a sound distinction. There is a judicial preference for adjudication on the merits, and it is likely that a party who promptly attacks an entry of default, rather than waiting for a grant of a default judgment, was guilty of an oversight and wishes to defend the case on the merits." Id. (citing Oberstar v. F.D.I.C., 987 F.2d 494, 504 (8th Cir. 1993)). Mr. Dufek is entitled to the more lenient "good cause" standard when considering his motion to set aside the entry of default.

When examining whether good cause exists, courts weigh three factors: "whether the conduct of the defaulting party was blameworthy or culpable, whether the defaulting party has a meritorious defense, and whether the other party would be prejudiced if the default were excused." ...


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