Talton et al v. Etheridge Oil Co.

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Case 09-00208-8-RDD Doci2 Filed 12/23/09 Entered 12/23/09 10:53:45 oe Lo 3

LE Ce —

SO ORDERED.

SIGNED this 23 day of December, 2009.

° 7 Randy D. Doub
United States Bankruptcy J udge

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA

WILSON DIVISION

IN RE: CHAPTER 11
BILLY L. TALTON CASE NUMBER: 09-03005-8-RDD
MARGARET F. TALTON

DEBTORS
BILLY L. TALTON
MARGARET F. TALTON

ADVERSARY PROCEEDING
Plaintiff(s) NUMBER: 09-00208-8-RDD

Vv.
ETHERIDGE OIL COMPANY, INC.
Defendant(s)

ORDER DENYING ENTRY OF DEFAULT AND EXTENDING
DEADLINE ‘TO FILE RESPONSES TO COMPLAINT AND COUNTERCLAIM

Pending before the Court is the Motion for Entry of Default (the “Motion”) filed by Billy
L. and Margaret F. Talton (the “Plaintiffs”). On December 9, 2009, the Court conducted a
hearing on the Motion in Wilson, North Carolina.

The Plaintiffs commenced this adversary proceeding on September 23, 2009 with the

filing of their complaint against Etheridge Oil Company, Inc. (“Etheridge”). A summons was

2
issued on September 24, 2009 providing Etheridge with thirty (30) days to file an answer or
motion in response to the complaint. Service was effectuated on Etheridge on September 25,
2009.
On October 28, 2009, the Plaintiffs filed the instant Motion requesting the entry of a
default and a default judgment against Etheridge based on its failure to timely respond to the
complaint. Later that afternoon, Etheridge filed its Answer to the Complaint, Counterclaim, and
Third-party Complaint against Talton & Sons, Inc. (the “Answer”). Subsequently, on October
30, 2009, Etheridge supplemented its Answer to include proper exhibits. To date, the Plaintiffs
have not responded to the Counterclaim set forth in Etheridge’s Answer.
An entry of default has not been entered in this case and there is nothing to set aside
pursuant to Fed. Bank. R. Civ. P. 7055. Rule 7055(a) permits a default against a party who has
failed to plead or otherwise defend. The Answer has been filed by Etheridge in this case.
Furthermore, the Court, having considered the pleadings filed in the adversary
proceeding and the arguments of counsel finds that the entry of default is not warranted under
the facts in this case. See United States of America v. Smith, 212 F.R.D. 480 (M.D.N.C. 2002);
Precision Links Inc. v. USA Products Group, Inc. et al., 2009 U.S. Dist. LEXIS 63655 (Bankr.
W.D.N.C. 2009); Livesay v. Carolina First Bank, 2006 U.S. Dist. LEXIS 48212 (Bankr.
W.D.N.C. 2006).
Therefore, the Court hereby extends the time for Etheridge to file its answer to the
complaint to October 29, 2009 and extends the deadline for the Plaintiffs to file their reply to the
counterclaim of Etheridge through and including January 12, 2010.
SO ORDERED.
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