List v. Carwell

          Michael D. Bornitz, Esq., counsel for plaintiffs.

          L. Michael Hall, III, Esq. and Hall Law PA, counsel for plaintiff intervenors.

          Stanley E. Siegel, Jr. Esq., Pharoah Johan Lewis, Esq. and Nilan Johnson Lewis, counsel for defendants.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon defendant Robert Carwell's motion to vacate or set aside the entry of default and plaintiffs Jason and Alicia List's motion to strike. Based on a review of the file, record, and proceedings herein, and for the following reasons, Carwell's motion to set aside the entry of default is granted and the motion to strike is denied.

         BACKGROUND

         In September 2015, Carwell, a Canadian citizen, was driving a truck owned by his employer and co-defendant 0820527 B C LTD d/b/a Let It Ride Carriers (Let it Ride) when he was involved in an accident in Minnesota with a vehicle driven by Troy Fiedler. Jason List was a passenger in the vehicle, and he, Fiedler, and co-passenger Jodi Fiedler were allegedly injured in the crash.

         On August 1, 2018, plaintiffs filed suit against Let It Ride and Carwell alleging negligence, negligence per se, respondeat superior, and loss of consortium. Carwell, who was unrepresented by counsel at the time, was properly served with the summons and complaint on September 5, 2018. Shortly thereafter, Carwell went to a remote area of Canada for several months to care for a sick relative. Not understanding that he needed to act on the summons and complaint, Carwell failed to respond to the lawsuit filed against him. Plaintiffs moved for the entry of default, which the clerk of court granted on October 11. At no point in these proceedings have plaintiffs sought default judgment against Carwell.

         Throughout late 2018 and early 2019, plaintiffs also attempted to serve Let It Ride. In January 2019, Let It Ride, through its present counsel who had also recently been retained to represent Carwell, waived service and on February 19, 2019, Let It Ride filed an answer. It was around that time that Carwell's counsel discovered the entry of default. Counsel spent the next few months trying to contact Carwell, but was unable to do so given his extended stay in a remote area of Canada. When Carwell's counsel finally reached him in April 2019, Carwell explained why he had failed to respond to the lawsuit.

         In June 2019, Troy and Jodi Fiedler filed an unopposed motion to intervene in this suit, which the court granted. On July 23, 2019, the Fiedlers filed their complaint against Let It Ride and Carwell alleging many of the same claims as plaintiffs. Both Let It Ride and Carwell timely answered, and the court issued an amended pretrial scheduling order expanding the time for discovery and setting a new date for trial.

         Carwell now moves to vacate or set aside the entry of default against him so that he may fully defend himself against both the plaintiffs' and the Fiedlers' claims. Plaintiffs move to strike a portion of Carwell's reply memorandum and an affidavit filed in support of his motion.

         DISCUSSION

         I. Motion to Vacate or Set Aside Entry of Default

          A “court may set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c). “When examining whether good cause exists, the ... court should weigh whether the conduct of the defaulting party was blameworthy or culpable, whether the defaulting party has a meritorious defense, and whether the other party would be prejudiced if the default were excused.” Stephenson v. El-Batrawi, 524 F.3d 907, 912 (8th Cir. 2008) (citation and internal quotations marks omitted). Although the court considers the same factors in determining whether to set aside a default judgment under Fed.R.Civ.P. 60(b), relief from a mere ...