United States District Court, E.D. Michigan, Southern Division
J. Michelson District Judge
ORDER GRANTING MOTION TO SET ASIDE DEFAULT
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE
January 10, 2019, the Clerk of the Court entered a default
against Defendant Money Recovery Nationwide, now known as
Receivables Management Partners, LLC (“RMP”)
following merger [Dkt. #27]. Before the Court is RMP's
motion to set aside the default [Dkt. #31].
response to a previous show cause order, Plaintiff stated
that he properly served RMP by serving a summons on one Ron
Kochanski. This is reflected in the return of service [Dkt.
to the motion as Exhibit A is the affidavit of Jennifer
Isabell, a litigation specialist and privacy officer for
Receivables Management Partners, LLC, succesor by merger to
Nationwide Collection Agency, Inc., d/b/a Money Recovery
Nationwide. Ms. Isabell states that Ron Kochanski is neither
a resident agent nor an officer of RMP. Rather, the resident
agent for RMP on or about August 11, 2017 was CSC-Lawyers
Incorporating Service. Isabell Affidavit, paragraphs
2-15. Ms. Isabell further states that RMP has no record of
being served with any pleadings in this case, including
Plaintiff's amended complaints. Id. paragraphs
has not filed a response to Defendant's motion.
STANDARD OF REVIEW
motion to set aside a default is governed by Fed.R. Civ.P.
55(c). That Rule sets forth a relatively relaxed “good
cause” standard for setting aside a Clerk's entry
of default. U.S. v. $22, 050.00 U.S. Currency, 595
F.3d 318, 324 (6th Cir. 2010). In O.J.
Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 353
(6th Cir.2003), the Sixth Circuit described the Rule 55(c)
standard as follows:
“[T]he district court enjoys considerable latitude
under the “good cause shown” standard of Rule
55(c) to grant a defendant relief from a default entry. The
criteria used to determine whether “good cause”
has been shown for purposes of granting a motion under Rule
55(c) are whether (1) the default was willful, (2) set-aside
would prejudice plaintiff, and (3) the alleged defense was
meritorious. It has been found that 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.” (internal quotation marks, citations,
and footnote omitted.).
reviewing a Rule 55(c) motion should be “extremely
forgiving to the defaulted party and favor a policy of
resolving cases on the merits instead of on the basis of
procedural missteps.” United States v. $22, 050.00
U.S. Currency, supra, 595 F.3d at 322.
has not filed a response to this motion, and has thus not
offered any contradiction to Ms. Isabell's sworn
statements that Ron Kochanski is not a resident agent
authorized to accept service, and that Defendant in fact was
never properly served. I therefore find that the alleged
default was not willful. Nor would setting aside the default
prejudice the Plaintiff. And finally, Ms. Isabell's
affidavit shows that Defendant RMP has a meritorious
defense. Apart from any assessment of the merits,
the complaint is also subject to dismissal for failure to
serve. See Fed.R.Civ.P. 4(m).