Ammerman et al v. Fisher et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
PATRICIA AMMERMAN; and HARRIS S.
AMMERMAN,
Plaintiffs,
v.
DAVID LLOYD FISHER, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER GRANTING MOTION TO SET
ASIDE DEFAULT (DOC. NO. 114)
Case No. 2:24-cv-00790
Chief District Judge Jill N. Parrish
Magistrate Judge Daphne A. Oberg
Patricia and Harris Ammerman, representing themselves, filed this action
alleging “fraud in the course of Defendants’ operation of a Racketeering Enterprise.”1
After Andre Ester failed to timely answer the complaint, the Ammermans moved for
entry of default against him.2 The Clerk of Court granted the motion and entered a
default certificate in January 2025.3 Mr. Ester (also proceeding without a lawyer) has
moved to set aside this default, explaining he inadvertently mis-calendared his response
date and was deeply involved with his wife’s contentious divorce and the hospitalization
1 (See Compl. ¶ 1, Doc. No. 1.)
2 (See Pls.’ Req. for Entry of Default, Doc. No. 49.) The Ammermans also sought entry
of default against Mr. Ester’s company, Global Business Finance Corporation. (Id. at 1.)
3 (Default Certificate for Andre Ester & Global Business Fin. Corp., Doc. No. 47.)
Case 2:24-cv-00790-JNP-DAO Document 117 Filed 01/20/26 PageID.<pageID>
Page 1 of 6

2
of his step-child at the time.4 He did not realize his error until he received the default
certificate.5 In response, the Ammermans contend Mr. Ester has not shown good cause
or a meritorious defense and setting aside his default would be prejudicial.6 Because
several factors support finding good cause here, as explained below, Mr. Ester’s motion
to set aside default is granted.7
LEGAL STANDARDS
Because Mr. Ester proceeds pro se, his motion is “liberally construed.”8 Under
Rule 55(c) of the Federal Rules of Civil Procedure, courts may set aside an entry of
default for “good cause.”9 It is well established that good cause under Rule 55(c)
4 (Mot. to Vacate Default (Mot.) 1–2, Doc. No. 114.) Despite the title of the motion,
which Mr. Ester purports to bring under Rule 60(b) of the Federal Rules of Civil
Procedure, the motion is properly construed (and referred to here) as a motion to set
aside default under Rule 55(c) because there is no default judgment against Mr. Ester.
See Fed. R. Civ. P. 55(c) (“The court may set aside an entry of default for good cause,
and it may set aside a final default judgment under Rule 60(b).”). The Ammermans
recognize this in their opposition, correctly noting that Rule 55(c) governs. (Opp’n to
Mot. (Opp’n) 1–2, Doc. No. 116.)
5 (Mot. 1–2, Doc. No. 114.) As noted below, it is unclear when Mr. Ester received the
default certificate.
6 (Opp’n 2–4, Doc. No. 116.)
7 See Goodwin v. Hatch, No. 16-cv-00751, 2018 U.S. Dist. LEXIS 119914, at *12 (D.
Colo. July 18, 2018) (unpublished) (“A motion to set aside a Clerk’s entry of default (as
opposed to grant or set aside a default judgment) is considered a non-dispositive
motion that a Magistrate Judge can decide directly under 28 U.S.C. § 636(b)(1)(A),
rather than addressing by Report and Recommendation under 28 U.S.C.
§ 636(b)(1)(B).” (citation modified)).
8 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
9 Fed. R. Civ. P. 55(c).
Case 2:24-cv-00790-JNP-DAO Document 117 Filed 01/20/26 PageID.<pageID>
Page 2 of 6

3
“poses a lesser standard” for a defaulting party than the excusable neglect required to
set aside a default judgment under Rule 60(b).10 Indeed, Rule 55(c)’s “good cause
standard is fairly liberal because ‘[t]he preferred disposition of any case is upon its
merits and not by default judgment.’”11 However, this preference “is counterbalanced by
considerations of social goals, justice and expediency, a weighing process which lies
largely within the domain” of the district court’s discretion.12 The Tenth Circuit instructs
courts to consider “(1) whether the default was the result of culpable conduct of the
defendant, (2) whether the plaintiff would be prejudiced if the default should be set
aside, and (3) whether the defendant presented a meritorious defense.”13 But “[t]hese
factors are not talismanic”—courts may choose to consider other factors and need not
consider all the factors.14
ANALYSIS
Because several factors favor setting aside Mr. Ester’s default, his motion is
granted. First, Mr. Ester’s default was not due to culpable conduct sufficient to refuse
10 Dennis Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 775 n.6 (10th
Cir. 1997) (citations omitted).
11 QFA Royalties LLC v. Liberty Holding Grp., Inc., No. 06-cv-00948, 2007 U.S. Dist.
LEXIS 51220, at *3 (D. Colo. July 16, 2007) (unpublished) (quoting Gomes v. Williams,
420 F.2d 1364, 1366 (10th Cir. 1970)); see also Katzson Bros., Inc. v. U.S. E.P.A., 839
F.2d 1396, 1399 (10th Cir. 1988) (noting “default judgments are not favored by courts”).
12 Gomes, 420 F.2d at 1366.
13 Hunt v. Ford Motor Co., No. 94-3054, 1995 U.S. Dist. LEXIS 24463, at *9 (10th
Cir. 1995) (unpublished); see also Pinson v. Equifax Credit Info. Servs., Inc., 316 F.
App’x 744, 750 (10th Cir. 2009) (unpublished) (similar).
14 Hunt, 1995 U.S. Dist. LEXIS 24463, at *9–10 (citation omitted).
Case 2:24-cv-00790-JNP-DAO Document 117 Filed 01/20/26 PageID.<pageID>
Page 3 of 6

4
setting aside his default. Generally, “a defendant’s conduct is considered culpable if he
has defaulted willfully or has no excuse for the default.”15 Here, after receiving the
complaint, Mr. Ester inadvertently mis-calendared his response date.16 At the time, he
was deeply involved in his wife’s divorce—contentious circumstances allegedly
involving the ex-husband beating Mr. Ester’s minor child, resulting in the child’s
hospitalization.17 Mr. Ester did not realize his calendaring error until he received the
default certificate.18 Although it is unclear when he received the certificate, it appears
some delay is attributable to a clerical mailing error by the court.19 Because Mr. Ester
has provided an explanation and the record does not suggest he willfully defaulted, his
conduct is not so culpable as to justify leaving his default in place. This factor favors
finding good cause.
Second, the Ammermans fail to demonstrate that setting aside Mr. Ester’s default
will cause prejudice. The Ammermans contend this will prejudice them in the form of
“loss of evidence,” “increased difficulties of discovery,” and “risk that assets will be
moved or dissipated.”20 In addition, they argue it will “materially increase the burden
15 Id. at *10.
16 (Mot. 2, Doc. No. 58.)
17 (Id. at 1–2.)
18 (Id.)
19 (See Doc. No. 62 (indicating default certificate mailed to address in Memphis returned
as undeliverable and then resent to Mr. Ester’s current address in Collierville,
Tennessee, in late-February 2025).)
20 (Opp’n 4, Doc. No. 116.)
Case 2:24-cv-00790-JNP-DAO Document 117 Filed 01/20/26 PageID.<pageID>
Page 4 of 6

5
and cost of litigation and reduce [their] ability to obtain relief,” given they allege “a multi-
defendant fraud enterprise and the transfer of funds across jurisdictions” in this case.21
But the fact that the Ammermans allege a multi-defendant enterprise and cross-
jurisdiction money-transfers does not demonstrate prejudice. The Ammermans have
not shown any increased costs linked to setting aside default. And they make no factual
assertions supporting their claim that assets may be dissipated. It is also not clear how
setting aside Mr. Ester’s default would cause a loss of evidence, difficulty in discovery,
or a reduced ability to obtain relief. It would seem to do the opposite, where Mr. Ester is
alleged to be an “architect” of the fraud enterprise at the core of this litigation.22
Because the Ammermans make only general assertions of prejudice, but no concrete
indication, this factor favors setting aside Mr. Ester’s default—particularly where this
case is in early stages.
Finally, Mr. Ester’s motion suggests a potentially meritorious defense. On this
issue, courts “examine[] the allegations contained in the moving papers to determine
whether the movant’s version of the factual circumstances surrounding the dispute, if
true, would constitute a defense to the action.”23 According to his motion, Mr. Ester has
never met or had any dealings with the Ammermans.24 The Ammermans contend these
21 (Id.)
22 (Compl. ¶ 39, Doc. No. 1.)
23 In re Stone, 588 F.2d 1316, 1319 (10th Cir. 1978) (examining “meritorious defense” in
the context of Rule 60(b)).
24 (Mot. 2, Doc. No. 114.)
Case 2:24-cv-00790-JNP-DAO Document 117 Filed 01/20/26 PageID.<pageID>
Page 5 of 6

6
“conclusory denials” do not show a meritorious defense because the complaint does not
depend on an allegation that Mr. Ester personally met them.25 In the complaint, the
Ammermans allege Mr. Ester induced victims to send him money through escrow
attorneys he and others recruited.26 But they also claim Mr. Ester made material
misrepresentations to the Ammermans about their investments.27 If Mr. Ester never
had dealings with the Ammermans, he could not have made those representations. His
motion presents a potentially meritorious defense for the purpose of setting aside
default. For these reasons, good cause exists to do so.
CONCLUSION
Mr. Ester’s motion to set aside default28 is granted. The default certificate
entered against Andre Ester29 is set aside. Mr. Ester’s deadline to answer or otherwise
respond to the complaint is February 10, 2026.
DATED this 20th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
25 (Opp’n 3, Doc. No. 116.)
26 (Compl. ¶¶ 39, 44, Doc. No. 1.)
27 (Id. ¶ 260; see also id. at 1 (“Defendants” defined to include Mr. Ester).)
28 (Doc. No. 114.)
29 (See Default Certificate for Andre Ester & Global Business Fin. Corp., Doc. No. 47.)
The default certificate is set aside only as to Mr. Ester.
Case 2:24-cv-00790-JNP-DAO Document 117 Filed 01/20/26 PageID.<pageID>
Page 6 of 6