United States ex rel. Mercer v. Kelly

50 F.R.D. 149, 14 Fed. R. Serv. 2d 543, 1970 U.S. Dist. LEXIS 11844

• Court: District Court, E.D. Pennsylvania
• Decided: May 4, 1970
• Docket: Civ. A. No. 68-1316
• Status: Published

Opinion

MEMORANDUM

BODY, District Judge.

Plaintiff filed this suit under the Civil Rights Act on June 2, 1968, seeking a copy of the notes of testimony in a state criminal trial in which he was involved, and damages in excess of fifty thousand dollars. The return of service, filed on August 19, 1968, indicates that service of the summons and complaint was made on the defendant personally on August 14, 1968. No answer was made nor appearance entered for the defendant within the required time period.

Plaintiff has since filed motions for summary judgment and for judgment by default. More recently the defendant has furnished plaintiff with a copy of the notes of testimony in question, and has also filed motions to strike plaintiff’s above-mentioned motions and for leave to file an answer to plaintiff’s complaint. For purposes of disposition, the Court has consolidated the motions and has ordered that supporting and opposing memoranda be filed.

A motion for judgment by default is addressed to the sound discretion of the court. United States ex rel. Houghton v. Scranton, 257 F.Supp. 557 (E.D.Pa.1966), aff’d 379 F.2d 556 (3d Cir. 1967). In the exercise of that discretion, courts have preferred a trial on the merits to a judgment by default when material issues of fact are involved. Newberry v. Cohen, 126 U.S. App.D.C. 106, 374 F.2d 320 (1967). Moreover, this court on one occasion went so far as to say, “Any doubt should be decided against allowing a default where there is alleged a meritorious defense and substantial amounts are involved.” Gamble v. Pope & Talbot, Inc., 191 F.Supp. 763, 764 (E.D.Pa.1961), rev’d on other grounds, 307 F.2d 729 (3d Cir.1962), cert, denied sub. nom. United States District Court for Eastern District of Pennsylvania et al. v. Mahoney, 371 U.S. 888, 83 S.Ct. 187, 9 L.Ed.2d 123 (1962).

Such a disposition should be made here. While we in no way condone the inordinate delay which has attended the defendant’s entry into this case, we nevertheless find substantial factors favoring a trial on the merits. Potentially meritorious defenses have been raised by the defendant and justice requires that they be litigated. In addition, substantial sums of money are here demanded and the resolution of this controversy should be accomplished in a manner reflective of that fact.

For these reasons, plaintiff’s motion for judgment by default will be denied. • In furtherance of this disposition, defendant will be granted leave to answer forthwith, and plaintiff’s motion for summary judgment will be denied as premature, with leave to renew after an answer has been filed.