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Mogg v. Jacobs, 3:15-cv-1142-JPG-DGW. (2016)

Court: District Court, S.D. Illinois Number: infdco20160523860 Visitors: 24
Filed: May 20, 2016
Latest Update: May 20, 2016
Summary: ORDER DONALD G. WILKERSON , Magistrate Judge . Now pending before the Court is the Motion for Default filed by Plaintiff, Jonathan Mogg, on May 1, 2016 (Doc. 33) and the Motion for Leave to File Answer Out of Time filed by Defendant Mitchell D. Jacobs, on May 2, 2016 (Doc. 40). For the reasons set forth below, the Motion for Default is DENIED and the Motion for Leave is GRANTED. Defendant filed a timely Motion to Dismiss, which was denied on March 15, 2016 (Doc. 23). Pursuant to Federa
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ORDER

Now pending before the Court is the Motion for Default filed by Plaintiff, Jonathan Mogg, on May 1, 2016 (Doc. 33) and the Motion for Leave to File Answer Out of Time filed by Defendant Mitchell D. Jacobs, on May 2, 2016 (Doc. 40). For the reasons set forth below, the Motion for Default is DENIED and the Motion for Leave is GRANTED.

Defendant filed a timely Motion to Dismiss, which was denied on March 15, 2016 (Doc. 23). Pursuant to Federal Rule of Civil Procedure 12(a)(4)(A), Defendant's answer was due on April 1, 2016. Defendant failed to file an answer by the deadline and Plaintiff seeks entry of default. In response, Defendant states that through inadvertent error, the responsive pleading deadline was "not property calendared." Defendant also notes that no prejudice will ensue if he is allowed to file his answer out of time.

Rule 55 provides that if a party fails to plead or defend an action, the Clerk of Court must enter default and, once other requirements are met, default judgment. Once an entry of default is made, the allegations in the complaint are taken as true. Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983).

Defendant has been actively litigating this matter, having recently filed a motion for summary judgment, and only appears to have inadvertently failed to file an answer. Entry of default is not appropriate in such a case where Defendant is participating in a meaningful manner. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 631 (7th Cir. 2009) (noting that "[o]ur cases articulate a policy of favoring trial on the merits over default judgment"). There can be no prejudice to Plaintiff in permitting Defendant to file an answer. Defendant is accordingly ORDERED to file an answer by May 25, 2016.

IT IS SO ORDERED.

Source:  Leagle

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