Opinion
NO. 4:10CV75-P-B.
November 23, 2010
ORDER
Before the Court are the Motions [#'s 59, 60] of Defendants, Danny Bew and Cordell Gray to set aside the Clerk's Entry of Default.
Under Federal Rule of Civil Procedure 55(c), a clerk's entry of default may be set aside "for good cause shown." When determining whether good cause exists, the Court should examine (1) whether the default was willful, (2) whether setting the default aside would prejudice the adversary, and (3) whether a meritorious defense is presented. CJC Holdings, Inc. v. Wright Lato, Inc., 979 F.2d 60, 64 (5th Cir. 1992).
Having considered the foregoing and the record of this case, the Court is of the opinion that the instant motion should be granted. First, defendants have presented adequate excuses for their failure to timely answer the complaint and, therefore, the default was not willful. Second, although plaintiff has offered an objection to the motion, it is clear that setting aside the clerks entry will not greatly prejudice the plaintiff, but will rob the defendant movants of their right to a jury trial. Third, the Court, having considered Defendant's motion, finds that the defendant movants will be able to offer an adequate response to the complaint.
THEREFORE, IT IS ORDERED that the instant motion to set aside the Clerk's Entry of Default is hereby GRANTED; and Defendants, Danny Bew and Cordell Gray, shall have until December 10, 2010 to respond to the pending complaint.
THIS, the 23rd day of November, 2010.