Opinion
CIVIL ACTION NO. 03-272 SECTION "K" (3)
March 16, 2004
MINUTE ENTRY
Before the Court is a Motion to Set Aside Entry of Default and to be Removed as Third Party Defendant (Rec. Doc. No. 28) filed by James D. Mullins. Having reviewed the pleadings, memoranda, and relevant law, this Court GRANTS IN PART and DENIES IN PART the motion.
Rule 55(c) of the Federal Rules of Civil Procedure permits a district court to set aside an entry of default "for good cause shown." Fed.R.Civ.P. 55(c). The court has discretion to determine whether the party seeking relief has demonstrated good cause. Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2694. In United States v. One Parcel of Real Property, 763 F.2d 181 (5th Cir. 1985), the Fifth Circuit stated:
In determining whether to set aside a default decree, the district court should consider whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented.Id. at 183, cited in Matter of Dierschke, 975 F.2d 181, 183 (5th Cir. 1992). See also B.R.L., Inc. v. City of New Orleans, 2003 WL 2145962 (E.D. La. 2003). The three factors mentioned in One Parcel of Real Property are not talismanic, nor are they exclusive. Dierschke, 975 F.2d at 184. The court's determination as to "good cause" is informed by equitable principles. Id.
The court finds that in the present case the factors lean in favor of setting aside the default. The default not appear to have been willful; rather it seems to have been the result of inadvertence or mistake on the part of James D. Mullins, who is representing himself pro se. Plaintiff will not be unfairly prejudiced, as the delay in filing a responsive pleading will not result in the destruction of evidence, in an increase in the difficulties conducting discovery, or in greater opportunities for fraud and collusion. Finally, defendants have presented valid arguments in defense of these claims. In balancing these factors, and in considering the equities of the situation, the court finds that letting the default stand could unfairly burden James D. Mullins by forcing him to pay a judgment they never had the opportunity to defend. The court therefore finds just cause to set aside the default. Thus, Mullins' Motion to Set Aside Entry of Default is GRANTED.
As to the portion of Mullins' motion seeking that he be "removed as third party defendant," the Court finds that Mullins did not sufficiently establish that he should be dismissed. The sole reason Mullins cites in support of his dismissal is his discharge in bankruptcy relieving him from the lease obligations he owed to the Bodengers. In support, Mullins attaches a Notice of Discharge of Debtor dated March 30, 1993. However, he neglected to put forward any evidence that the Bodengers received notice of his filing for bankruptcy. The Bodengers contend that they did not receive notice of Mullins' bankruptcy filing and that, consequently, Mullins' discharge in bankruptcy did not affect his obligations to the Bodengers under the lease. Thus, this Court DENIES Mullins' Motion to be Removed as Third Party Defendant. If Mullins can produce evidence that he notified the Bodengers of his filing for bankruptcy, the Court shall reconsider this ruling. Accordingly,
IT IS ORDERED that Mullins Motion to Set Aside Entry of Default Judgment (Rec Doc. No. 28) is hereby GRANTED. Entry of Default is hereby VACATED.
IT IS FURTHER ORDERED that Mullins Motion to be Removed as Third Party Defendant (Rec. Doc. 28) is hereby DENIED.