GREG WHITE, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion for Default Judgment (Doc. No. 7), as well as Defendant's Motion for Leave to File Instanter its Answer (Doc. No. 9) and Defendant's Motion to Strike Plaintiff's Motion for an Entry of Default. (Doc. No. 10.)
On November 4, 2011, Plaintiff filed her Complaint. (Doc. No. 1.) Upon review of the docket, the Court notes that Plaintiff caused service to be made at two different addresses.
Under Federal Civil Rule 55, default is a two-step process with entry of default as the first procedural step, after defendants have been properly served, but failed to plead or otherwise defend. O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 352 (6
While the entry of default is a procedural formality, it is nevertheless a prerequisite to the issuance of a default judgment. United States v. DiMucci, 879 F.2d 1488, 1490 (7
After the clerk has entered a default, the second step provides that default judgment "may be entered" by either the Clerk or the Court, depending on the circumstances as outlined in Fed. R. Civ. P. 55(b). Even where a defendant is technically in default, the plaintiff is not entitled to a default judgment as a matter of right. Ganther v. Ingle, 75 F.3d 207, 212 (5
Fed. R. Civ. P. 6(b)(1)(B) allows an extension of time to file where a party's failure to act was due to excusable neglect. The United States Supreme Court has recognized excusable neglect to be a somewhat elastic concept in which a court is "permitted, where appropriate, to accept late filings caused by inadvertence, mistakes, or carelessness" even when an adequate excuse is not offered. Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380 (1993). The Sixth Circuit has identified five factors that a court should consider in determining whether a party has shown sufficient excusable neglect to justify an extension of time under Rule 6(b):
Nafziger v. McDermott Int'l, Inc., 467 F.3d 514, 522 (6
Here, upon learning of the lawsuit, Defendant promptly filed for leave to file its Answer, instanter. Regarding whether Defendant has shown sufficient excusable neglect, the Court finds the equities weigh in Defendant's favor. Plaintiff will suffer no prejudice as the short delay has had little, if any impact on the judicial proceedings. See Tolliver v. Liberty Mut. Fire Ins. Co., 2008 U.S. Dist LEXIS 18839, at *3 (S.D. Ohio Feb. 25, 2008) (finding that a delay of two months in filing an answer would not prejudice the plaintiff and would have little impact on the ability of the Court and the parties to resolve the matter in a timely fashion). Moreover, Plaintiff is not prejudiced as any argument that "prejudice flows from the fact that [a plaintiff] will not receive default flies in the face of the policy of deciding cases on the merits." Hess Corp. v. Precision Powder Coating, Inc., 2009 U.S. Dist. LEXIS 72613, at *3 (N.D. Ohio Aug. 6, 2009) (citing Shepard Claims Serv. v. William Darrah & Assoc., 796 F.2d 190, 193 (6
Defendant's reason for the delay also supports sufficient excusable neglect. The summonses should have been served upon Family Dollar Stores of Ohio or its registered statutory agent. (DeBrocq Decl., ¶¶ 2, 4.) Instead, Plaintiff served the summonses to the store where she was employed and to a post office box used by Family Dollar Stores, Inc., parent corporation to Family Dollars Stores of Ohio. (Doc. Nos. 5 & 6.) In addition, neither summons was addressed to a person or department's attention. Id. As such, the documents were not routed to the Legal Department for Family Dollar Stores of Ohio. (DeBrocq Decl., ¶¶ 1 & 5.) Finally, Defendant has demonstrated good faith in retaining counsel and immediately filing its answer. The Court finds that Defendant has shown sufficient excusable neglect and, therefore, grants Defendant's motion to file its Answer. (Doc. No. 9.) Upon receipt of this Order, the Court directs Defendant to file its Answer.
Regarding Plaintiff's motion for default, she is not in compliance with the two-step process of Rule 55. Default must first be entered to give notice to defendant, prior to filing a motion for default judgment. More importantly, upon the Court's allowing the Answer, the Defendant has "plead or otherwise defended its case." The Court, therefore, grants Defendant's Motion to Strike Plaintiff's Entry of Default. (Doc. No. 10.)
IT IS SO ORDERED.