United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
plaintiff Mikea Price has sued defendant Adams Auto Sales,
Inc., alleging that the car she purchased was defective.
Defendant’s counsel, Joel A. Brodsky, has informally
contacted the court numerous times to point out deficiencies
in plaintiff’s pleadings, but defendant failed to
answer plaintiff’s pleadings. Accordingly, the clerk of
court entered default against defendant on May 25, 2016.
Defendant has now moved to set aside the entry of default.
Dkt. 15. Although informal communication with the court is no
substitute for a proper responsive pleading, the court will
grant the motion and set aside the default. The court will
set a new answer deadline for defendant, but the court will
not require that plaintiff re-serve her amended complaint.
Plaintiff filed this case on her own behalf on March 29,
2016, and paid the full filing fee. Dkt. 1. Defendant was
served on April 25, 2016. Dkt. 8. On April 28, 2016, instead
of formally responding to the complaint with a motion,
counsel for defendant called the clerk’s office by
telephone to ask the court to dismiss the complaint for lack
of jurisdiction. Plaintiff had failed to allege damages
sufficient to satisfy the jurisdictional amount of more than
$75, 000. The court addressed the issue in an order the same
day, explaining the requirements for diversity jurisdiction
and allowing plaintiff an opportunity to amend. Dkt. 3. She
promptly did so and the court accepted her good-faith damages
estimate as sufficient to establish jurisdiction on May 11,
2016. Dkt. 7.
on plaintiff’s proof of service of the original
complaint, Dkt. 8, the court docketed defendant’s
answer deadline as May 16, 2016, which was 21 days after
service. See Fed. R. Civ. P. 12(a)(1)(i). That date
passed without any responsive pleading from defendant or even
a formal notice of appearance by defendant’s counsel.
19, 2016, attorney Brodsky filed a motion to appear pro hac
vice, Dkt. 9, which the court granted. Dkt. 10. The same day,
plaintiff moved for default. Dkt. 12. Another week passed
without any filing from defendant, and the clerk properly
entered default on May 25, 2016. Dkt. 14.
next day, counsel for defendant again telephoned and emailed
the clerk’s office, insisting that the entry of default
was the court’s error and demanding ex parte relief.
Court staff reports that attorney Brodsky was demeaning,
combative, unrelenting, and rude. The clerk’s office
directed counsel to file a motion to set aside the default.
Attorney Brodsky did so, Dkt. 15, contending that defendant
was not in default, that the entry of default was the
court’s error, and that he should not have to file any
motion to get the default set aside.
Federal Rule of Civil Procedure 55(a), where a defendant
“has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter [defendant’s] default.” Setting aside an
entry of default requires “good cause for the
defendant’s inaction, prompt steps to correct the
default, and an arguably meritorious defense to the
lawsuit.” Parker v. Scheck Mech. Corp., 772
F.3d 502, 505 (7th Cir. 2014).
showed prompt action by filing its motion to set aside the
entry of default the day after it was entered. And although
defendant does not bother with the merits of any substantive
defense, the court will assume that it has some colorable
defense to the claims against it, which is all the court has
to determine at this point.
defendant’s explanation for the default is weak.
Defendant offers an explanation for why it did not answer the
amended complaint, but it fails to explain why it
did not answer or move to dismiss the original
complaint. A phone call to the court pointing out that
there is a jurisdictional deficiency in a complaint is not a
substitute for a responsive pleading. Defendant should have
filed an answer or a motion to dismiss the original complaint
by May 16. That filing did not have to be elaborate, but a
phone call was not enough.
contends that the amended complaint was never served, but at
best that is true in only the most technical sense. The
amended complaint was never mailed to defendant, but by the
time counsel appeared pro hac vice (May 19, 2016), the
amended complaint and May 11 order accepting
plaintiff’s supplemental allegations were both on the
electronic docket, visible to counsel. If defendant had any
objections to the court accepting these supplemental
allegations, or plaintiff’s motion for entry of
default, it could have stated them in a formal motion. It
failed to do so.
the facts of record establish defendant’s default, any
deficiencies in plaintiff’s affidavit in support of her
motion for default are of no consequence. The court construes
pro se litigants’ filings generously. Haines v.
Kerner, 404 U.S. 519 (1972) (per curiam). And
defendant’s inaction may be “shown by affidavit
or otherwise.” Fed.R.Civ.P. 55(a) (emphasis
added). The bottom line is that defendant has been aware of
this case since April 25, 2016, but it has failed to plead or
otherwise defend against it, attempting instead to contact
the clerk’s office ex parte for relief multiple times.
the court will grant defendant’s motion and set aside
the default because defendant has not completely ignored the
case and plaintiff will not be greatly prejudiced by the
delay. Plaintiff will not be required to re-serve her
pleadings. The court will regard the original complaint and
the amended complaint together as the governing complaint.
Defendant must answer within 14 days of this order.
last point. The staff of the clerk’s office is
available to assist litigants and their counsel, but the
clerk’s office cannot provide substantive relief. Any
further communication with the clerk’s office to
request substantive relief will be regarded as an
inappropriate ex parte communication. All communication with
the clerk’s office for any kind of assistance must ...