Opinion
CIVIL 1:22-cv-00241-MR
01-22-2024
DAVID LYNN ANDERSON, Plaintiff, v. FNU BARKER, et al., Defendants.
ORDER
Martin Reidinger, Chief United States District Judge
THIS MATTER is before the Court on the Plaintiff's Letter, which is liberally construed as a Motion to set aside the Clerk's Entry of Default [Doc. 27].
The pro se Plaintiff filed the Complaint pursuant to 42 U.S.C. § 1983 addressing an incident that allegedly occurred at the Rutherford County Jail. [Doc. 1]. The Second Amended Complaint passed initial review against Defendant Barker for the use of excessive force. [Docs. 15, 16]. Defendant Barker answered and asserted a Counterclaim for battery against the Plaintiff. [Docs. 18, 20]. The Plaintiff failed to timely answer or otherwise respond to the Counterclaim, and the Defendant filed a Motion for Entry of Default on November 21, 2023. [Doc. 22]. The Clerk entered a Default in the Court's record on December 1, 2023. [Doc. 26].
On December 4, 2023, the Clerk docketed a Letter from Plaintiff in which he claims that he was never served with the Defendant's Counterclaim, and that default should not be entered against him. [Doc. 28]. On January 16, 2024, the Court notified the Defendant that it would construe the Letter as a Motion to set aside the Clerk's Entry of Default, and granted the Defendant 14 days to explain why the Default should not be set aside. [Id.]. The Defendant has now filed a Response stating that he does not object to the Plaintiff's request to set aside the Clerk's Entry of Default. [Doc. 29].
Because the Defendant has not objected to the Plaintiff's request to set aside the Default, the Plaintiff need not file a reply. [See Doc. 28 (Order granting Plaintiff 14 days to reply to the Defendant's Response)].
In light of the Defendant's Response, the Clerk will be instructed to set aside the Default [Doc. 26]. The Plaintiff shall have 14 days from the date of this Order to answer or otherwise respond to the Defendant's Counterclaim. [Doc. 18].
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff's Letter [Doc. 27], which is construed as a Motion to set aside the Clerk's Entry of Default, is GRANTED.
2. The Clerk is instructed to SET ASIDE the Entry of Default [Doc. 26].
3. The Plaintiff shall answer or otherwise respond to the Defendant's Counterclaim [Doc. 18] within fourteen (14) days of this Order.
IT IS SO ORDERED.