United States District Court, D. Minnesota
Michael D. Bornitz, Esq., counsel for plaintiffs.
Michael Hall, III, Esq. and Hall Law PA, counsel for
Stanley E. Siegel, Jr. Esq., Pharoah Johan Lewis, Esq. and
Nilan Johnson Lewis, counsel for defendants.
S. Doty, Judge
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.
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.
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.
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.
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.
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.
Motion to Vacate or Set Aside Entry of Default
“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 ...