G.R. SMITH, Magistrate Judge.
Plaintiff American Packing and Crating of GA, LLC sued defendants Resin Partners, Inc. d/b/a Keter North America ("Resin Partners"), Keter North America, Inc. ("Keter Inc."), and Keter North America, LLC ("Keter LLC") for payment on three outstanding invoices for services rendered. Doc. 1 (alleging breach of contract and suit on an open account relating to "shipping, warehousing and logistics" services). Though the Court denied defendants' motion to dismiss the second amended complaint, doc. 36, and plaintiff filed a third amended complaint, doc. 33, defendants failed to timely file an answer. See doc. 39 (filed more than 14 days after the Court's denial of defendant's motion to dismiss); Fed. R. Civ P. 12(a)(4)(A). Plaintiff requested that the Clerk enter default against defendants, doc. 37, and filed a motion to compel defendants to respond to propounded discovery, dov. 38. Defendants have since opposed the request for entry of default but have not opposed plaintiff's motion to compel, which is pending before the undersigned.
Because defendants failed to respond to plaintiff's motion to compel, the motion is deemed unopposed under Local Rule 7.5 (no response means no opposition). Accordingly, plaintiff's motion to compel (doe. 38) is
Plaintiff does not seek Rule 37 sanctions for defendants' failure to respond but requests "reasonable expenses" in bringing its motion. Doc. 38. Payment of expenses (including attorney's fees), however, typically follows "after giving an opportunity to be heard." Fed. R. Civ. P. 37(a)(5)(A). Only if: (1) "the movant filed the motion before attempting in good faith to obtain the . . . discovery without court action;" 2) the failure to respond was justified; or (3) "other circumstances make an award of expenses unjust," may a court decline to award expenses to a prevailing party. Id.
None of those exceptions apply here, and defendants had their chance to be heard. Consequently, the Court
When a request for clerk's entry of default is properly supported, the Clerk of Court is without discretion in granting a request for entry of default. See Fed. R. Civ. P. 55(a) (when a party "fail[s] to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default") (emphasis added). Plaintiff's request
A few weeks after plaintiff filed its request for a Clerk's entry of default under Fed. R. Civ. P. 55(a), defendants filed their (untimely) answer to the amended complaint and opposition to plaintiff's request. Docs. 39, 40. Their delay in doing so, they explained, was caused by their computer/email erroneously "spam filtering" this Court's dismissal ruling. Doc. 40 at 2. Construing their opposition as a motion to set aside the entry of default,
Here, while plaintiff represents that defendants have engaged in an ongoing pattern of delay tactics, see doc. 42, defendants' conduct in failing to file a timely answer to the amended complaint does not appear to have been willful or contumacious. Wortham, 2015 WL 2152826 at *3 The record does not reflect an overall pattern of delay or willful conduct by defendants, as they have been actively litigating their case. Further, the record suggests that counsel, and not defendants themselves, were responsible for the failure to answer the amended complaint. Id. "While this Court takes seriously the obligations of parties and their counsel to read and know the procedural rules applicable to the forums in which they litigate . . . [defendants'] failure to answer [the amended complaint] within the required time period was not culpable or willful under the less rigorous Rule 55(c) good cause standard." Id.
Plaintiff argues that defendants have not demonstrated a meritorious defense, but defendants' defense — that plaintiff failed to provide the services promised and bargained for and thus breached the agreements at issue, see doc. 39 — "would be a potentially meritorious defense" to the allegations of the amended complaint. Wortham, 2015 WL 2015 WL 2152826 at *3. A "proposed meritorious defense" is enough under the Rule 55(c) "good cause" standard. Id. And because the Court finds that defendants have presented at least a "proposed meritorious defense," plaintiff has not established that it "would be prejudiced merely because of the expenses of the continuing litigation" or the "simple delay that attends in setting aside entry of default." Id. at *4.
In sum, because the factors relevant to the Rule 55(c) good cause analysis weigh in favor of setting aside the default and allowing the case to proceed on the merits, plaintiff's motion for entry of default is
Further, plaintiff's unopposed motion to compel is