United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING THIRD-PARTY DEFENDANT'S MOTION FOR
RECONSIDERATION [ECF NO. 34]
CARAM STEEH, UNITED STATES DISTRICT JUDGE
matter is before the court on third-party defendant Jerome
Pernell Jr.'s motion for reconsideration of the
court's order denying his motion to set aside clerk's
entry of default. For the reasons given below, Pernell's
motion for reconsideration is granted.
plaintiff, Norfolk Southern Railway Co.
(“Norfolk”), filed its third-party complaint
against Mr. Jerome Pernell, Jr. on March 18, 2019. A
certificate of service was filed with the court on April 16,
2019, showing personal service on Mr. Pernell on April 4,
2019 [ECF No. 16]. Norfolk sought clerk's entry of
default for failure to answer, which was entered as to Mr.
Pernell on May 1, 2019 [ECF No. 19]. Mr. Pernell was present
at the scheduling conference with the court on May 8, 2019.
At that time, the court advised Mr. Pernell that he should
attempt to obtain counsel and told the parties it would
consider Mr. Pernell's motion to set aside entry of
court granted the motion to set aside entry of default,
requiring Mr. Pernell's answer to the third-party
complaint to be filed by August 9, 2019. However, Mr. Pernell
failed to file an answer and on August 14, 2019, third-party
plaintiff requested that the clerk again enter default
against Mr. Pernell. The clerk entered default against Mr.
Pernell on August 16, 2019. On September 16, 2019, Mr.
Pernell filed a second motion to set aside entry of default.
This time, Mr. Pernell obtained help from the University of
Detroit Mercy Law School Pro Se Legal Assistance
Clinic. The court denied Pernell's motion to set aside
entry of default, finding that his default was willful. The
court also found prejudice to the parties if entry of default
was set aside because Pernell's reckless disregard of the
court rules and the court's orders resulted in delays to
the progress of the case, particularly regarding discovery.
Finally, the court noted that Pernell did not raise
“any defense for the court to consider, let
alone a meritorious defense.”
Rule 7.1(h)(3) of the Local Rules of the United States
District Court for the Eastern District of Michigan provides:
Generally, and without restricting the court's
discretion, the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable
defect by which the court and the parties and other persons
entitled to be heard on the motion have been misled but also
show that correcting the defect will result in a different
disposition of the case.
palpable defect argued by Pernell in his motion for
reconsideration is that the court gave decisive weight to the
reckless disregard factor while giving lesser weight to the
factors of prejudice and meritorious defense. Pernell
maintains that there is no evidence in the record showing
that his actions resulted in delay which caused prejudice
with regard to discovery. When he filed his second motion to
set aside entry of default, Pernell's persistent failure
to comply with court orders had already resulted in a delay
of almost five months. On the other hand, the discovery
deadline is January 13, 2020 and Norfolk did not identify
specific prejudice that would result from setting aside the
default against Pernell. While delay by its nature may result
in the destruction of evidence and the fading of
witnesses' memories, “delay alone is not a
sufficient basis for establishing prejudice.”
Dassault Systemes, SA v. Childress 663 F.3d 832, 842
(6th Cir. 2011) (citation omitted).
the prejudice factor is neutral, Pernell cannot avoid the
fact that he failed to raise any defense, let alone a
meritorious defense. Now for the first time, in his motion
for reconsideration, Pernell describes his defense to the
allegation in the third-party complaint that he was
responsible for plaintiff's injuries: “Norfolk had
deactivated the signals and lights at the railroad crossing
where the accident occurred, and Pernell could not see the
Plaintiff in the dark at the time of the crash, and in
sufficient time to avoid the accident.” A defense is
meritorious if “there is some possibility that
the outcome of the suit after a full trial will be contrary
to the result achieved by the default.” Burrell v.
Henderson, 434 F.3d 826, 834 (6th Cir. 2006) (citation
court is cognizant that there is a presumption against
resolving litigation through default and a “general
preference for judgments on the merits.” Dassault
Systemes, 663 F.3d at 841 (citing United Coin Meter
Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 846
(6th Cir. 1983). While the court is not expected to consider
new arguments or factual allegations on motions for
reconsideration, Mr. Pernell is a pro se third-party
defendant and as a general proposition, pleadings
drafted by pro se litigants are to be held to a less
stringent standard and should be liberally construed.
Martin v. Overton, 391 F.3d 710, 712 (6th Cir.
2004). Having said that, pro se litigants are not
exempt from the requirements of the Federal Rules of Civil
Procedure. Martin v. Overton, 391 F.3d 710, 712 (6th
been presented with a summary of Pernell's defense, which
qualifies as meritorious at this stage of the litigation, the
court GRANTS his motion for reconsideration and orders that
clerk's entry of default be set aside. Mr. Pernell's
answer to the third-party complaint is due on or before
December 2, 2019. Finally, the court cautions Mr. Pernell
that going forward he is expected to comply with the rules
and orders that apply to all parties who appear before this
court. Now, therefore, IT IS HEREBY ORDERED that third-party
defendant's motion for reconsideration [ECF No. 34] is
HEREBY FURTHER ORDERED that clerk's entry of default
entered on August 16, 2019 [ECF No. 29] be set aside.
HEREBY FURTHER ORDERED that third-party defendant's
answer to the third-party complaint must be filed on or
before December 2, 2019.