United States District Court, M.D. Louisiana
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
matter comes before the Court on Defendants' Motion to
Set Aside Entry of Preliminary Default (R. Doc. 11). This
Motion is not opposed.
se Plaintiff, an inmate confined at the Louisiana State
Penitentiary (''LSP''), Angola, Louisiana,
brought this action on August 29, 2016 pursuant to 42 U.S.C.
§ 1983 against Medical Director Raman Singh, Dr. Randy
Lavespere, Secretary James LeBlanc, Warden Darrell Vannoy and
Ass't Warden Stephanie Lamartiniere, complaining that
Defendants have violated his constitutional rights through
deliberate indifference to his serious medical needs,
specifically through a failure to provide adequate treatment
or surgical intervention for his inguinal hernia(s) and
were served on November 14, 2016. See R. Doc. 6. On
January 12, 2017, upon the failure of Defendants, after
service of process, to appear or respond to Plaintiff's
Complaint, the Clerk of Court entered a preliminary default
against Defendants. See R. Doc. 8. Thereafter, on
January 20, 2017, Plaintiff moved to obtain a default
judgment against Defendants and to determine appropriate
relief and compensatory damages. See R. Doc. 9.
Defendants, however, have since filed an Answer to
Plaintiff's Complaint, asserting procedural and
substantive defenses to the allegations made therein.
See R. Doc. 10. In addition, through the filing of
the instant Motion (R. Doc. 11), Defendants have moved to set
aside the entry of the default pursuant to Rule 55(c) of the
Federal Rules of Civil Procedure. In support thereof, counsel
for Defendants asserts that Defendants' failure to timely
respond to Plaintiff's Complaint was inadvertent and, at
most, amounted to excusable neglect. Moreover, counsel
represents that Plaintiff will not be prejudiced by the grant
of the instant motion to set aside the entry of the default.
55(a) provides that, upon the failure of a defendant, after
service of process, to file a pleading or otherwise defend,
the Clerk of Court shall enter a default against that
defendant. Thereafter, pursuant to Rule 55(b), Plaintiff must
apply to the Court for entry of a judgment of default. A
judgment of default, however, is not a matter of right, and
the awarding thereof is within the sound discretion of the
district court. Rogers v. Hartford Life and Acc. Ins.
Co., 167 F.3d 933 (5th Cir. 1999). In addition, the
decision to set aside a default lies within the sound
discretion of the district court. Id. See also United
States v. One Parcel of Real Property, 763 F.2d 181 (5th
Cir. 1985). Default judgments are not favored in the law, and
a trial on the merits is generally seen as being more in the
interest of justice and fair play. Id. See also 10A
Wright, Miller and Kane, Federal Practice and Procedure:
Civil 3d ' 2690 (1998).
determining whether to set aside an entered default, the
district court should consider (1) whether the default was
willful, (2) whether setting it aside would prejudice the
adversary, and (3) whether a meritorious defense is
presented. United States v. One Parcel of Real Property,
supra, 763 F.2d at 183. The standard for setting aside a
default is less rigorous even than that for setting aside a
judgment for excusable neglect. Id., 763 F.2d at
this standard to the instant case, the Court concludes that
the entry of default should be vacated. While the question of
Defendants' willfulness is not really addressed in the
Motion to Set Aside Entry of Preliminary Default,
minimal delays attendant to Defendants' failure to timely
answer will not prejudice Plaintiff in presenting his case
and Defendants have raised defenses in their Answer which may
prove meritorious. Accordingly, the Court finds that the
scales are tipped in favor of vacating the default and
allowing this case to proceed through discovery and, if
necessary, to trial on the merits.
recommended that Defendants' Motion to Set Aside Entry
Preliminary of Default (R. Doc. 11) be granted, vacating and
setting aside the default entered herein on January 12, 2017.
It is further recommended that Plaintiff's Ex Parte
Motion to Finalize Default Judgment (R. Doc. ...