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84 F.R.D. 46

Gray v. John Jovino Co.

U.S. District Court

Decided June 1, 1979

U.S. District Court · decided 1979-06-01

Relies on Smith v. Kincaid · Ferraro v. Arthur M. Rosenberg Co. · Johnson v. Harper

Good law ✅— No negative treatment on recordhow we know

Decided 1979-06-01

How this case has been cited

Cited by 5 later decisions — most recently February 2002

1 federal appellate · 1 district · 1 state decisions

201979198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1MEMORANDUM OPINION

NEESE, District Judge.

¶2The 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.

¶3This Court is authorized to set aside the entry of a default “ … [f]or *47good 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.

¶4Although 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.

¶5The 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].

¶6 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].

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