Filed: Sep. 14, 2018
Latest Update: Sep. 14, 2018
Summary: MEMORANDUM OPINION & ORDER WILLIAM H. BAUGHMAN, JR. , Magistrate Judge . Before me 1 is defendant Svetislav Vujovic's motion 2 under Rule 59(e) of the Federal Rules of Civil Procedure to alter or amend my marginal entry order 3 denying his prior motion for relief from default judgment. 4 In his motion to alter or amend, Vujovic maintains that his prior motion was timely under the prison mailbox rule. 5 He also contends that the denial was "sua sponte" because he did not reply to th
Summary: MEMORANDUM OPINION & ORDER WILLIAM H. BAUGHMAN, JR. , Magistrate Judge . Before me 1 is defendant Svetislav Vujovic's motion 2 under Rule 59(e) of the Federal Rules of Civil Procedure to alter or amend my marginal entry order 3 denying his prior motion for relief from default judgment. 4 In his motion to alter or amend, Vujovic maintains that his prior motion was timely under the prison mailbox rule. 5 He also contends that the denial was "sua sponte" because he did not reply to the..
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MEMORANDUM OPINION & ORDER
WILLIAM H. BAUGHMAN, JR., Magistrate Judge.
Before me1 is defendant Svetislav Vujovic's motion2 under Rule 59(e) of the Federal Rules of Civil Procedure to alter or amend my marginal entry order3 denying his prior motion for relief from default judgment.4
In his motion to alter or amend, Vujovic maintains that his prior motion was timely under the prison mailbox rule.5 He also contends that the denial was "sua sponte" because he did not reply to the opposition to his original motion.6
Local Civil Rule 7.1(e) does permit a party to file a reply brief within 14 days of the filing of a brief in opposition, unless the court orders otherwise. Accordingly, the brief accompanying the present motion is deemed as Vujovic's reply to the original response to the motion to set aside the default judgment.
Despite the fact that Vujovic has established that his motion was timely, the current motion is insufficient to alter or amend the prior order. In particular, the record remains incomplete as to whether Vujovic is entitled to relief from the judgment of default. In particular, Rule 55(c) — which governs relief from the mere entry of a default — requires only that the defendant show that the plaintiff will not be prejudiced and that there is a possible defense.7 But when, as here, the entry of default has ripened into a default judgment, then the "stricter requirements of Rule 60(b)" are involved.8
Because these "stricter requirements" have not yet been addressed in any filing, there is currently no basis for altering or amending my prior order9 pursuant to Rule 60(b). Nonetheless, in the interests of finally resolving this matter on its merits and not on a point of timeliness, my prior order is stayed until the parties fully brief the question of Vujovic's compliance with Rule 60(b). Vujovic is ordered to submit his brief in support of his motion to alter or amend — focusing on the requirements of Rule 60(b) — by October 15, 2018. NCUAB is to submit any response by October 29, 2018, with Vujovic to file a reply brief by November 16, 2018.
IT IS SO ORDERED.