Reynolds v. Romero et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LORI REYNOLDS,
Plaintiff,
vs.
MICHELE J. ROMERO, in her
individual capacity, et al.,
Defendants.
4:25-CV-3197
ORDER
This matter is before the Court on defendant Michele Romero's motion
(filing 28) to set aside the clerk's entry of default (filing 27). Romero's motion
will be granted.
The procedural history of this case is somewhat convoluted. The plaintiff
filed her complaint (filing 1) on September 29, 2025. Summons was issued the
next day. Filing 8. On October 14, the plaintiff filed a "certificate of service"
(filing 11) indicating an attempt at service on October 9. But the Court found,
in an order filed November 4, that her service attempt did not appear to comply
with Fed. R. Civ. P. 4. Filing 16 at 2. Accordingly, the Court ordered the clerk's
office to reissue the summons and forward it to the United States Marshals
Service for service. Filing 16 at 2-3. The reissued summons was served by the
marshal on November 13, and the summons was returned executed on
November 20. Filing 21.
But apparently, the plaintiff had tried again with the first summons. On
November 24, she filed a motion for clerk's entry of default (filing 26),
accompanied by a sheriff's return of personal service indicating service by the
Buffalo County Sheriff on October 24. Filing 26-1. Accordingly, the Clerk of the
Court entered Romero's default on November 26. Filing 27. Romero's motion
to set aside the default followed the next day. Filing 28.
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Fed. R. Civ. P. 55(c) provides that the Court "may set aside an entry of
default for good cause. . . ." When examining whether good cause exists, the
Court weighs whether the conduct of the defaulting party was blameworthy or
culpable, whether the defaulting party has a meritorious defense, and whether
the other party would be prejudiced if the default were excused. Stephenson v.
El-Batrawi, 524 F.3d 907, 912 (8th Cir. 2008). And although the same factors
are typically relevant in deciding whether to set aside entries of default and
default judgments, relief from a default judgment requires a stronger showing
of excuse than relief from a mere default order. Johnson v. Dayton Elec. Mfg.
Co., 140 F.3d 781, 783 (8th Cir. 1998).
Here, Romero's explanation for default is that the plaintiff's first service
attempt was defective, and that her actual responsive pleading deadline was
21 days from the marshal's service on November 13—in other words, December
4. Filing 28 at 1. So, she asserts, "the Court's Entry of Default is a clerical
error." Filing 28 at 1. The Court isn't sure about that. The Court found the
plaintiff's October 9 attempt at service defective, but said nothing about
October 24. See filing 16. The only thing Romero says was wrong with the
October 24 service is that the Court had the summons reissued after that.
Filing 29 at 3. The legal effect of reissuing the summons, after it had already
been served by the sheriff, is unclear.
But the Court agrees with Romero that the confusion resulting from
repeated service of reissued summons is good cause to excuse any default. See
filing 29 at 3-4. The circumstances belie any "contumacious or intentional delay
or disregard for deadlines and procedural rules." See Johnson, 140 F.3d at 784.
Romero should not be blamed for relying on a summons that plainly told her
she had 21 days from the date of service—21 days from November 13—to
respond. See filing 17 at 5; filing 21 at 2. Romero has also made sufficient
showing of a meritorious defense, see filing 30-2, and there is no basis for
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concluding that the plaintiff has been prejudiced in a "concrete way," see
Stephenson, 524 F.3d at 915, given that "prejudice may not be found from delay
alone or from the fact that the defaulting party will be permitted to defend on
the merits." Johnson, 140 F.3d at 785.
Default judgments are not favored by the law, and the entry of default
judgment should be a rare judicial act. See Comiskey v. JFTJ Corp., 989 F.2d
1007, 1009 (8th Cir. 1993); U.S. on Behalf of & for Use of Time Equip. Rental
& Sales, Inc. v. Harre, 983 F.2d 128, 130 (8th Cir. 1993). The circumstances
here do not warrant default judgment, so Romero's default will be set aside.
IT IS ORDERED:
1. Romero's motion to set aside entry of default (filing 28) is
granted.
2. The Clerk's Entry of Default (filing 27) is set aside.
3. The plaintiff's motion for default judgment (filing 32) is
denied as moot.
4. Romero shall plead or otherwise respond to the plaintiff's
complaint on or before December 4, 2025.
Dated this 26th day of November, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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