Opinion
Civil Case No. 07-cv-00951-LTB-MEH.
July 19, 2007
ORDER
This case is before me upon a flurry of filings on July 17 and 18, 2007. Counterclaim Plaintiff's Michael T. Pruett and Jack F. Northart move for an Order of Default and Entry of Civil Judgment (Doc 32). The motion is opposed. Plaintiff moves for leave to file untimely replies to counterclaims (Doc 33) and attaches thereto its proposed Reply to Counterclaims of Pruett and Affirmative Defenses and proposed Reply to Counterclaims of Northart and Affirmative Defenses (Docs 33-3 and 33-4). That motion is opposed. On July 18, 2007, Plaintiff filed its memorandum in opposition to motion for default and civil judgment (Doc 34). Further briefing will not be of assistance to the Court.
Fed.R.Civ.P. 55(a) provides that "when a party against whom a judgment or affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the Clerk shall enter the parties default." Nevertheless, this Court has discretion to grant additional time to a party to plead or otherwise defend, the Court can exercise its discretion to refuse to enter default if a party against whom default is sought appears and indicates a desire to contest the claim against it and if it is apparent that default would be set aside on a motion by the defaulting party entry of default. Federal Practice and Procedure, Wright-Miller-Kane, Vol. 10A, § 2682.
This case is in its very early stages. A Rule 16(b) scheduling-planning conference has not yet been held. In paragraph 6, page 3 of Plaintiff's motion for leave to file untimely replies to counterclaims, Plaintiff has set forth good cause and justification for failure to reply to the counterclaims when due on July 12, 2007. Inordinate delay has not been shown. No discovery has been taken. Counterclaim Plaintiffs Pruett and Northart have shown no prejudice. In Plaintiff's proposed replies to the counterclaim plaintiffs' counterclaims, Plaintiff has alleged meritorious defenses. Plaintiff has clearly appeared and indicated its desire to defend against the counterclaims. And, it is apparent to this Court that in the event default was entered pursuant to Fed.R.Civ.P. 55(a), on the state of this record default would be set aside.
Accordingly, under the circumstances here and in the exercise of discretion
IT IS ORDERED that Plaintiff's motion for leave to file untimely replies to counterclaims (Doc 33) is GRANTED and the replies are accepted for filing.
IT IS FURTHER ORDERED that Counterclaim Plaintiffs Pruett and Northart's verified motion for default and civil judgment (Doc 32) is DENIED.