United States District Court, W.D. Michigan, Southern Division
DORIS BROWN, individually and as Personal Representative of the Estate of Ja'colby Duran Brown, decedent, et al., Plaintiffs,
CITY OF MUSKEGON, et al, Defendants.
T. NEFF, United States District Judge
filed this wrongful death action to recover damages against
various Defendants for the deaths of Plaintiffs'
decedents, Ja'Coby Duran Brown and Dupree Jamar Johnson,
who were allegedly shot by Defendant Jamal Quinney, while
attending an event at an Elks Lodge,  where the Elks negligently
allowed underage minor patrons to purchase and/or consume
alcoholic beverages. Pending before the Court is a Motion
Seeking to Set Aside Default under Fed.R.Civ.P. 55(c) (Dkt
20) by Defendants City of Muskegon, Public Safety Director
Jeffrey Lewis, and City Clerk Ann Marie Cummings
("Municipal Defendants"). Plaintiffs have filed a
Response in opposition (Dkt 25), and the Municipal Defendants
have filed a Reply (Dkt 31). The Motion to Set Aside Default
is properly granted.
Rule of Civil Procedure 55(c) provides that "[t]he court
may set aside an entry of default for good cause ...."
In applying Rule 55(c), the Sixth Circuit Court of Appeals
has noted it is important to distinguish between setting
aside defaults and default judgments, with the former
beinggrantedmoreliberally. United States Grocery
& Video, 195 F.3d 819, 820 (6th Cir. 1999)
("Real Property"). A "district court
enjoys considerable latitude under the 'good cause
shown' standard of Rule 55(c) to grant a defendant relief
from a default entry." Id. (citations and
internal quotations omitted). In fact, the Sixth Circuit has
"indicated a 'strong preference for trials on the
merits.'" Id. (quoting Shepard Claims
Serv., Inc. v. William Darrah & Assoc, 796 F.2d 190,
193 (6th Cir. 1986)).
equitable factors are considered in determining whether
"good cause" has been shown to set aside entry of a
default: '"(1) whether culpable conduct of the
defendant led to the default, (2) whether the defendant has a
meritorious defense, and (3) whether the plaintiff will be
prejudiced.'" Burrell v. Henderson, 434
F.3d 826, 831-32 (6thCir. 2006) (quoting Waifersong, Ltd.
v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir.
1992) (citation omitted)); see also O.J. Distrib., Inc.
v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 n.3 (6th
Cir. 2003). '"To be treated as culpable, the
conduct of a defendant must display either an intent to
thwart judicial proceedings or a reckless disregard for the
effect of its conduct on those proceedings.'"
Dassault Systemes, SA v. Childress, 663 F.3d 832,
841 (6th Cir. 2011) (quoting Shepard Claims, 796
F.2d at 194. "[A] district court abuses its discretion
in denying a motion to set aside an entry of default when two
of the three factors have been demonstrated by the defendant:
the defendant had a meritorious defense and no prejudice
would result to the plaintiff if the matter were to go
forward." O.J. Distrib., 340 F.3d at 353;
see also United States v. $22, 050.00 U.S. Currency,
595 F.3d 318, 324 (6th Cir. 2010).
the factors support setting aside the defaults against the
Municipal Defendants for the reasons argued. The Court is
persuaded that Defendants' default was inadvertent, these
Defendants have a meritorious defense, and setting aside the
defaults will not unduly prejudice Plaintiffs.
initiated this action with the filing of a Complaint on
September 22, 2016. Without serving any Defendant, Plaintiffs
filed their First Amended Complaint on September 26, 2016.
Following a Notice of Impending Dismissal from this Court,
Plaintiffs filed their Second Amended Complaint on December
19, 2016. Service by mail upon the Municipal Defendants
occurred during the Christmas holiday period. Defendants
state they do not undertake their own defense in cases such
as this, but rather, the lawsuit documents are forwarded to
the Michigan Municipal Risk Management Authority, which then
retains counsel on the Defendants' behalf. Defendants
acknowledge that in this case, the confirmation of service
was simply not communicated to defense counsel.
circumstances reflect no culpable conduct on Defendants'
part, i.e., '"either an intent to thwart judicial
proceedings or a reckless disregard for the effect of its
conduct on those proceedings.'" Dassault
Systemes, S.A., 663 F.3d at 841 (citation omitted).
Further, setting aside the defaults will not result in any
undue "delay" or any "prejudice." The
defaults against Defendants City of Muskegon and Jeffrey
Lewis were entered by the Court on January 24, 2017; the
default against Defendant Ann Marie Cummings was entered
January 25, 2017, and Defendants moved to set aside all three
defaults that same day (Dkt 20).
Plaintiffs premise the Municipal Defendants' liability on
allegations that they "could have and should have"
requested the Michigan Liquor Control Commission to revoke
the Elks' license to sell alcoholic beverages, and
themselves "could have and should have" revoked the
Elks' "business certificate of registration, "
before the event at which the Plaintiffs' decedents were
shot (Dkt 11 at PageID.236-237). Additionally, the Municipal
Defendants should have had law enforcement "visually or
physically" present outside or near the Elks Lodge at
the time of the shooting and should have taken numerous other
actions given the history of code violations, complaints,
the Municipal Defendants have set forth meritorious defenses,
including immunity, to all of Plaintiffs' claims.
Moreover, they raise a question whether Plaintiffs have
stated a cognizable state-law claim against the City of
Muskegon under Michigan law. The Municipal Defendants have
made the requisite showing for setting aside the defaults.
strongly oppose setting aside the defaults. They state that
the Municipal Defendants were or should have been well-aware
of the filing of this lawsuit from media reports, and
Defendants present "mere conclusory and/or highly
suspicious and unverified excuses" for failing to timely
respond to Plaintiffs' Second Amended Complaint (Dkt 24
at PageID.339). They argue that "excusing the
Defendants' default will lead to increased difficulties
in discover [sic] and greater opportunities for fraud and
collusion" (id. at PageID.344). Plaintiffs'
arguments provide no persuasive basis for disregarding the
well-established legal standards that favor a decision on the
merits where the relevant factors for setting aside the
defaults are met, as here.
Motion to Set Aside Default is properly granted. An Order
will enter consistent with this Memorandum Opinion.
Elks (I.B.P.O.E of W. Charity Lodge
The test is also stated as whether:
'"(1) the default was willful, (2) set-aside would
prejudice plaintiff, and (3) the alleged defense was
meritorious.'" O.J. Distrib., 340 F.3d at