United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANTS' MOTION
TO SET ASIDE CLERK'S ENTRY OF DEFAULT (DOC. 9)
COHN UNITED STATES DISTRICT JUDGE.
a debt collection case. Plaintiff, the United States of
America (the government) sued to collect on a tax debt owed
by defendant Thomas J. Barrow. As will be explained,
defendant did not appear or otherwise defended the case.
Accordingly, the Clerk entered a default against defendant
and eventually, a default judgments.
the Court is defendant's motion to set aside the
Clerk's entry of default (Doc. 9). For the reasons that
follow, the motion is DENIED.
2016, the government brought this action to reduce to
judgment defendant's joint federal income tax liabilities
for 2004-12 and 2014, as well as his individual federal
income tax liabilities for 1987-88.
November 25, 2016, the government filed its complaint. (Doc.
1). On November 28, 2016, the government's counsel mailed
defendant copies of the Complaint, FRCP 4, the standard form
Notice of a Lawsuit and Request to Waive Service of a Summons
(AO 398) (Notice of Waiver), two copies of the standard form
Waiver of the Service of Summons (AO 399) (Waiver Form), a
stamped, self-addressed envelope, and a cover letter. The
cover letter requested that the defendant return the signed
Waiver Form by December 28, 2016. See Exhibits 2, 3 to
January 11, 2017, the government's counsel filed the
signed Waiver Form that he received in the mail from
defendant. (Doc. 3). The Waiver Form, which is signed by
Defendant, states that “I also understand that I, or
the entity I represent, must file and serve an answer or a
motion under Rule 12 within 60 days from 11/28/16, the date
when this request was sent….If I fail to do so, a
default judgment will be entered against me or the entity I
represent.” See Exhibit 2 to defendant's motion.
Thus, defendant had 60 days from November 28, 2016, or
January 27, 2017 in which to file an answer or other response
to the complaint. Similarly, the Notice of Waiver states that
“you will have 60 days from the date this notice is
sent (see the date below) [November 28, 2016] to answer the
complaint.” See Exhibit 2 to defendant's motion.
Defendant did not file an answer or otherwise appear in the
case by January 27, 2017.
on February 2, 2017, the government filed a Request for
Clerk's Entry of Default. (Doc. 4). The request was
served on defendant by U.S. Mail sent to the address shown on
the signed Waiver Form. The Clerk entered default the next
day, on February 3, 2017. (Doc. 5).
February 13, 2017, the government then filed a Request for
Clerk's Entry of Default Judgment. (Doc. 6). A copy of
the request was served on defendant by U.S. Mail sent to the
address shown on the signed Waiver Form. The Clerk entered
default judgment the same day, on February 13, 2017. The
judgment is in the amount of $385, 056.09 plus applicable
interest for unpaid joint federal income tax liabilities for
2004-2012 and 2014 and $653, 984.93 plus applicable interest
for unpaid individual federal income tax liabilities and
civil fraud penalties for 1987 and 1988. (Doc. 8).
days after entry of default judgment, on February 24, 2017,
defendant filed the instant motion. (Doc. 9). The government,
at the Court's request, filed a response. (Doc. 11).
outset, defendant incorrectly treats his motion as seeking
relief from Clerk's entry of default, when in fact
default judgment has already been entered. Thus, the standard
applicable to setting aside ...