Gray v. John Jovino Co.

84 F.R.D. 46, 1979 U.S. Dist. LEXIS 12017

• Court: District Court, E.D. Tennessee
• Decided: June 1, 1979
• Docket: No. CIV-2-78-172
• Status: Published

Opinion

MEMORANDUM OPINION

NEESE, District Judge.

The parties tendered to the Court a proposed agreed order setting-aside the entry of the defendant’s default herein of April 6, 1979. Good cause for setting-aside such default not having been shown, the Court declines to enter said order.

This Court is authorized to set aside the entry of a default “ * * * [f]or good cause shown * * Rule 55(c), Federal Rules of Civil Procedure. While this Court construes Rule 55(c), supra, liberally to provide relief from the onerous consequences of a default, Johnson v. Harper, D.C.Tenn. (1975), 66 F.R.D. 103, 104, there must be a sufficient showing of good cause before a default will be set aside, see Kennedy v. ARO, Inc., D.C.Tenn. (1977), 447 F.Supp. 1083, 1086-1089.

Although the parties may stipulate as to certain factual matters relating to the issue of good cause, the Court is not aware of any authority it has to set-aside a default merely by agreement of the parties. Even where a default has not been formally entered by the clerk, a defaulting defendant is required to apply to the court for relief on a showing of good cause before it is permitted to file an answer. 6 Moore’s Federal Practice (2d ed.) 55-231, ¶55.10[1]; 10 Wright & Miller, Federal Practice and Procedure: Civil 297-298, § 2692.

The setting-aside of a default is a matter committed to the sound discretion of the trial judge. Smith v. Kincaid, C.A. 6th (1957), 249 F.2d 243, 245[3]. In exercising this discretion, it is necessary for the Court to balance what are at times conflicting policy-goals: the need for prompt and efficient handling of litigation in the federal courts by sound application of the Rules of Civil Procedure, and the attainment of a just resolution of the particular dispute before the court. 6 Moore’s Federal Practice, supra, at 55-251-2, ¶ 55.10[4].

Where a default is sought to be set aside, the party in default “ * * * should make a formal motion * * Ibid., at 55-232, ¶ 55.10[1]. And, as was stated by a panel, upon which sat the late Judge Learned Hand, even where it is the plaintiff who seeks to set aside the defendant’s default, “ * * * whoever makes the motion must show an adequate basis for it. * * * ” Ferraro v. Arthur M. Rosenberg Co., C.C.A.2d (1946), 156 F.2d 212, 214[2].