The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL N.B. ATTAWAY, #Y55493, )
)
Plaintiff, )
)
v. ) Case No. 23-cv-02757-JPG
)
FREDRICK CHIN, et al., )
)
Defendants. )
ORDER
GILBERT, District Judge:
This matter is before the Court for a decision on Plaintiff Michael Attaway’s motion
for default judgment (Doc. 35) filed December 29, 2023 and Defendant Fred Chinn’s motion
to vacate the Clerk’s entry of default (Doc. 37) filed January 3, 2024. For the reasons set forth
below, Plaintiff Attaway’s motion is DENIED, Defendant Chinn’s motion is GRANTED, and
Defendant Chinn is ORDERED to file his responsive pleading by January 10, 2024.
A request for waiver of service of summons was sent to Defendant Chinn on
October 12, 2023 (Doc. 22). The waiver was returned executed on November 22, 2023
(Doc. 31). Defendant Chinn’s answer was due December 11, 2023. Id. Defendant Chinn
failed to move, answer, or otherwise plead in response to the Amended Complaint by that
deadline. The Court directed the Clerk to enter default on December 22, 2023 (Doc. 33). The
Clerk entered notice of default on December 26, 2023 (Doc. 34), and Plaintiff filed a motion
for default judgment as to Defendant Chinn on December 29, 2023 (Doc. 35). Counsel for
Defendant Chinn entered an appearance and filed a motion to vacate entry of default on
January 3, 2024 (Docs. 36, 37).
Defendant Chinn asks this Court to set aside the default pursuant to Federal Rule of Civil
Procedure 55(c) for “good cause” shown. (Doc. 37). “A party seeking to vacate an entry of default
prior to the entry of judgment must show: (1) good cause for the default; (2) quick action to correct
it; and (3) a meritorious defense to the complaint.” Cracco v. Vitran Express, Inc., 559 F.3d 625,
630–31 (7th Cir. 2009) (citations omitted); FED. R. CIV. P. 55(c). According to the motion to
vacate entry of default, Defendant Chinn’s counsel received notice of this case assignment on
January 2, 2024, and learned about the Clerk’s entry of default the same day. (Doc. 37, ¶ 9). This
delay was not the result of any delay, misconduct, or oversight of Defendant Chinn, who provided
timely notice of this lawsuit to the State’s Attorney and Crawford County Board Liaison.
Defendant Chinn also understood that a notice of appearance and answer would be filed on his
behalf. However, Crawford County changed its third-party claims adjusting vendor on
November 30, 2023, and this transition in vendors on December 1, 2023 caused a delay in this
case assignment.
Once the case assignment was made on January 2, 2024, Defendant Chinn’s counsel
immediately moved to vacate entry of default and allow Defendant Chinn to file an Answer and
present his meritorious defenses to all claims, based on Plaintiff Attaway’s failure to exhaust his
administrative remedies for the claim(s) and Defendant Chinn’s lack of knowledge or personal
involvement in any of the alleged constitutional violations. (Doc. 37).
In light of the circumstances surrounding Defendant Chinn’s failure to file timely
responsive pleadings and Counsel’s expeditious actions after discovering the error, the Court
hereby GRANTS Defendant Chinn’s motion to set aside default (Doc. 37), DENIES Plaintiff
Attaway’s motion for default judgment as to Defendant Chinn (Doc. 35), and VACATES the
Clerk’s entry of default (Doc. 34). Defendant Chinn shall file an Answer or other response to the
Amended Complaint (Doc. 12) by January 10, 2024.
IT IS SO ORDERED.
DATED: 1/3/2024
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge