Thompson v. Skaggs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

EDWARD THOMPSON, : Case No. 2:22-cv-682

:

Plaintiff, :

: District Judge James L. Graham

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

JAMES SKAGGS, :

:

Defendant. :

:

REPORT AND RECOMMENDATIONS1

This case is currently before the Court upon Plaintiff Edward Thompson’s Motion for

Default Judgment (Doc. #19); Defendant James Skaggs’ Memorandum Opposing Plaintiff’s

Motion for Default Judgment (Doc. #25); Plaintiff’s Reply (Doc. #28); Defendant’s Motion to Set

Aside Entry of Default (Doc. #23); Plaintiff’s Memorandum Opposing Defendant’s Motion to Set

Aside Entry of Default (Doc. #26); Defendant’s Reply (Doc. #29); Defendant’s Motion for Leave

to File Answer Instanter (Doc. #24); Plaintiff’s Memorandum Opposing Defendant’s Motion for

Leave to File Answer Instanter (Doc. #27); and Defendant’s Reply (Doc. #30).

I. Background

This case began on February 14, 2022, when pro se Plaintiff filed his Complaint and

Motion for Leave to Proceed in forma pauperis. (Doc. #1). In response to the Court’s Order and

Deficiency Notice, Plaintiff filed an updated Motion for Leave to Proceed in forma pauperis,

which the Court granted. (Doc. #s 2-4). Upon initial review of Plaintiff’s Complaint, the

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

undersigned recommended that Plaintiff be permitted to proceed with his excessive force claim

against Defendant Skaggs in his individual capacity, and that all remaining claims, including any

claims against Defendant in his official capacity, be dismissed. (Doc. #6). District Judge Graham

adopted the Report and Recommendation. (Doc. #7).

On June 3, 2022, the undersigned directed the United States Marshal to serve Defendant.

(Doc. #8). Defendant was served on June 14, 2022. (Doc. #10). His answer was due July 5, 2022.

Defendant did not file an answer or responsive motion. On October 6, 2022, the undersigned

ordered Defendant to show cause, on or before October 27, 2022, as to why default judgment

should not be entered against him under Fed. R. Civ. P. 55(a)-(b). (Doc. #11). Defendant did not

respond to the Order to Show Cause.

On December 7 and 8, 2022, counsel for Plaintiff entered their appearances. (Doc. #s 12,

13, 16). On December 8, 2022, Plaintiff requested that the Clerk enter default against Defendant

pursuant to Fed. R. Civ. P. 55. (Doc. #s 15, 17). The Clerk of Court entered Default against

Defendant on December 12, 2022. (Doc. #18). A few days later, on December 16, 2022, Plaintiff

filed Motion for Default Judgment. (Doc. #19).

On December 30, 2022, Defendant’s counsel entered their appearances and filed Motion

to Set Aside Default and Motion for Leave to File Answer Instanter. (Doc. #s 21-24).

II. Standard of Review

Federal Rule of Civil Procedure 55(c) provides that a “court may set aside an entry of

default for good cause, and it may set aside a final default judgment under Rule 60(b).” In deciding

a motion to set aside a clerk’s entry of default, the court should consider whether “(1) plaintiff will

be prejudiced; (2) defendant has a meritorious defense; and (3) defendant’s culpable conduct led

to the default.” Marbly v. Dep’t of Treasury, 22 F. App’x 371, 372 (6th Cir. 2001) (citing

Berthelsen v. Kane, 907 F.2d 617, 620 (6th Cir. 1990); Shepard Claims Serv., Inc. v. William

Darrah & Assoc., 796 F.2d 190, 192 (6th Cir. 1986)). “Although ‘[a]ll three factors must be

considered in ruling on a motion to set aside an entry of default,’ when a defendant has a

meritorious defense and the plaintiff would not be prejudiced, ‘it is an abuse of discretion for a

district court to deny a Rule 55(c) motion in the absence of a willful failure of the moving party to

appear and plead.’” United States v. $22,050.00 U.S. Currency, 595 F.3d 318, 324 (6th Cir. 2010)

(quoting Shepard, 796 F.2d at 194). Further, “the factors should be applied more leniently to

relieve a party from a procedural entry of default to reflect the strong preference for trial on the

merits in federal courts.” Marbly, 22 F. App’x at 372 (citing Shepard, 796 F.2d at 193-94).

III. Discussion

A. Prejudice

A court deciding whether to set aside an entry of default should consider “[w]hether the

plaintiff will be prejudiced.” United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d

839, 845 (6th Cir. 1983). “[D]elay alone is not a sufficient basis for establishing prejudice.”

Dassault Systemes, SA v. Childress, 663 F.3d 832, 842 (6th Cir. 2011) (quotation marks and

citation omitted). “Nor does increased litigation cost generally support entry of default.” Id.

“Instead, ‘it must be shown that delay will result in the loss of evidence, create increased

difficulties of discovery, or provide greater opportunity for fraud and collusion.’” Id. (quoting

INVST Fin. Grp., Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 398 (6th Cir. 1987)).

Defendant contends that Plaintiff has not been prejudiced by the delay because the Court

has not issued a calendar order or scheduled any status conferences with the parties. (Doc. #23,

PageID #124-25). However, as Plaintiff correctly points out, the Court would not issue a calendar

order or schedule a status conference when one of the parties has not filed an answer or otherwise

responded. (Doc. #28, PageID #199).

Plaintiff asserts that he is prejudiced because the “delay has resulted in potential loss of

evidence, creating difficulties of discovery and providing opportunities for collusion.” (Doc. #26,

PageID #162). According to Plaintiff, “[s]ecurity footage of the incident is already absent from

Ross Correctional Institution’s records – even though the footage was preserved by Defendant

Skaggs’s shift supervisor after the incident and provided to and reviewed by the Deputy Warden

of Operations.” Id. at 162-63. In support, Plaintiff provided a copy of a response from the

Correction Warden Assistant advising that “there [is] no video footage available.” (Doc. #26-7,

PageID #181). However, there is no explanation as to why the video footage is not available.

Additionally, Plaintiff did not provide a copy of the request. Without a copy of the request and an

explanation of why it is not available, the undersigned cannot reasonably infer that the video

footage is permanently lost or that the delay in this case resulted in the loss of evidence.

Furthermore, Plaintiff has shown that the delay has provided greater opportunities for collusion.

In sum, construing the facts in the light most favorable to Defendant, see Dassault Systemes, 663

F.3d at 841, Plaintiff has not demonstrated that he would be prejudiced by setting aside the entry

of default against Defendant.

B. Meritorious Defense

The second factor a court deciding whether to set aside an entry of default should consider

is whether the defendant has a meritorious defense. United Coin Meter, 705 F.2d at 845. “[A]

defense is meritorious if it is ‘good at law,’ regardless of whether the defense is actually likely to

succeed on the merits.” $22,050.00, 595 F.3d at 326 (quoting Williams v. Meyer, 346 F.3d 607,

614 (6th Cir. 2003)). “[A]ll that is needed is ‘a hint of a suggestion’ which, proven at trial, would

constitute a complete defense.” Id. (quoting INVST Fin. Grp., 815 F.2d at 399); see Burrell v.

Henderson, 434 F.3d 826, 834 (6th Cir. 2006) (In determining whether a defendant could have a

meritorious defense, the court considers whether “there is some possibility that the outcome of the

suit after a full trial will be contrary to the result achieved by the default.”) (quoting Williams, 346

F.3d at 614).

Defendant asserts that he has three meritorious defenses to Plaintiff’s claims of excessive

force. (Doc. #23, PageID #125). First, as set forth in Defendant’s proposed answer, he provides

a general denial of the facts alleged by Plaintiff. Id. at 125; see Doc. #24-1. Second, under the

Prison Litigation Reform Act (PLRA), Plaintiff is required to demonstrate that he exhausted his

administrative remedies prior to filing this civil action. (Doc. #23, PageID #125). According to

Defendant, this issue must be investigated. Third, Defendant contends that he “is entitled to avail

himself of qualified immunity and should have the opportunity to do so before this Court.” Id. at

125.

Plaintiff contends that “Defendant Skaggs does not support his general denials or asserted

defenses with underlying facts. As such, Defendant Skaggs has not raised a meritorious defense

for purposes of reopening the default.” (Doc. #26, PageID #162) (citing Victoria’s Secret Stores

v. Artco Equip. Co., 194 F. Supp. 2d 704, 720 (S.D. Ohio 2002); Toledo Hotel Invs. Ltd. P’ship v.

Am. Cont. Designers, Inc., 936 F.2d 573 (6th Cir. 1991)).

Although Defendant Skaggs has not provided extensive details regarding his defenses,

“even conclusory assertions may be sufficient to establish the ‘hint of a suggestion’ needed to

present a meritorious defense.” Dassault Systemes, 663 F.3d at 843 (citing $22,050.00, 595 F.3d

at 326). Plaintiff’s Complaint sets forth one excessive force claim against Defendant Skaggs in

his individual capacity. 2 “Government officials sued in their individual capacities are entitled to

seek qualified immunity.” Wingrove v. Forshey, 230 F. Supp. 2d 808, 822 (S.D. Ohio 2002))

(citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). Accordingly,

Defendant’s ability to raise qualified immunity means that he has a meritorious defense. 3 See

Cain v. U.S. Marshal Brian Rinehart, No. CV 19-11278, 2020 WL 1181737, at *2 (E.D. Mich.

Jan. 22, 2020), report and recommendation adopted sub nom. Cain v. Rinehart, No. 19-CV-11278,

2020 WL 1169433 (E.D. Mich. Mar. 11, 2020).

C. Culpable Conduct

The third factor to consider when deciding whether to set aside an entry of default is

whether culpable conduct of the defendant led to the default.” United Coin Meter, 705 F.2d at

845. “To be treated as culpable, the conduct of a defendant must display either an intent to thwart

judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings.”

Shepard, 796 F.2d at 194. “[M]ere negligence or failure to act reasonably is not enough to sustain

a default.” $22,050.00, 595 F.3d at 327. Where, as here, “a defendant has a meritorious defense

and the plaintiff would not be prejudiced, it is an abuse of discretion for a district court to deny a

Rule 55(c) motion in the absence of a willful failure of the moving party to appear and plead.”

$22,050.00, 595 F.3d at 324 (quotation marks and citation omitted).

Defendant asserts that his lack of response to this civil action was not willful or culpable.

(Doc. #23, PageID #121). In his declaration, Defendant acknowledges that he received the

summons and Complaint in the mail at Ross Correctional Institution (RCI) on June 14, 2022. (Doc.

2 After initial review of Plaintiff’s Complaint, the Court determined that Plaintiff’s excessive force claim against

Defendant Skaggs in his individual capacity could proceed. See Doc. #s 6-7. All of Plaintiff’s other claims were

dismissed. Id.

3 In light of the above discussion, and the undersigned’s conclusion that qualified immunity is a meritorious defense,

an in-depth analysis of Defendant’s other defenses is unwarranted.

#23-1, PageID #129). According to Defendant, he took the documents to the business office at

RCI to ask what he should do because he had never been sued as a correctional officer employed

by the Ohio Department of Rehabilitation and Correction (ODRC). Id. He was told that someone

at the business office would take care of preparing the necessary paperwork that would allow him

to request representation from the Office of the Ohio Attorney General. Id. Defendant “personally

was not aware of what was necessary of [him] in order to retain the legal services of the Office of

the Ohio Attorney General.” Id. at 130. Defendant also inquired with a labor relation officer and

his union representative (who was in the position on a temporary basis) at RCI, and “both

individuals informed [him] that [he] ‘should not be concerned’ about the matter and that it would

be handled appropriately by others because [he] had spoken to prison officials within the business

office at RCI.” Id. at 130. Defendant states that he did not receive the Court’s October 6, 2022

Order to Show Cause (Doc. #11). Id. Indeed, he was not aware of any legal documents mailed to

him at RCI until he received the Application for Default and Entry of Default on December 13,

2022. Id. The next day, someone within the Warden’s Office at RCI assisted Defendant with

preparing his request for the Office of the Ohio Attorney General to represent him in this case. Id.

Defendant insists, “It was, and is, never my intention to not comply with the Court’s orders or

instructions, and I was relying upon the advice and guidance of prison officials and my union

representative at RCI in addressing the summons and complaint that was served upon me.” Id.

Plaintiff asserts that Defendant’s “explanation for his actions is not credible as it is

inconsistent, improbable, and contradictory.” (Doc. #26, PageID #159) (capitalization omitted).

Specifically, Plaintiff points to Defendant’s statement in his declaration that the summons he

received with his Complaint indicated that he was being sued in his “official capacity” only. Id.

(citing Doc. #23-1, PageID #129). Plaintiff notes that there is no mention of “Official Capacity”

on the summons that was enclosed with the Complaint (Doc. #1-3). Plaintiff did indicate “Official

Capacity” on a different form he filed, U.S. Marshal Form 285, (Doc. #1-4). That form, however,

was not served on Defendant. See Doc. #8 (Order directing U.S. Marshal to serve the Complaint

(Doc. #5), Summons (Doc. #1-3), Order (Doc. #4), Report and Recommendation (Doc. #6), and

the Order adopting the Report and Recommendation (Doc. #26)). Plaintiff asserts, “The only way

Defendant Skaggs could have viewed Form 285 and the special instructions section that contains

the phrase “Official Capacity” would be by accessing the docket in this case.” (Doc. #26, PageID

#160) (footnote omitted). Plaintiff suggests that if Defendant viewed the docket, he would have

seen that no attorney entered an appearance on his behalf and no answer was filed. Id. at 160, n.

4. Further, he would have seen the Order to Show Cause. Id.

Defendant did not explain where he saw that he was only being sued in his official capacity.

However, even if Defendant reviewed the docket and Form 285 when he received the Complaint

and summons, he would not have expected to see that an attorney entered an appearance or filed

an answer. There is no evidence that Defendant reviewed the docket at any later time. Given the

lack of evidence, and viewing the facts in a light most favorable to Defendant, the undersigned

finds that Defendant’s declaration is not inconsistent in this regard.

Plaintiff also calls into question Defendant’s statement that he did not receive the Order to

Show Cause. (Doc. #26, PageID #106). In his declaration, Defendant stated that he “was never

presented, nor was [he] ever made aware of the Court’s Order to Show Cause issued on October

6, 2022, by prison officials at RCI.” (Doc. #23-1, PageID #130). However, the docket for this

case indicates that the Order (Doc. #11) was sent to by regular mail to the parties listed in NEF

that did not receive electronic notification. That means that because Defendant was not

represented by counsel at that time, it should have been mailed to him.

Although it is not clear why Defendant Skaggs did not receive this Court’s Order to Show

Cause, there is no evidence that he received it and intentionally ignored it. Indeed, upon receiving

other documents in this case, Defendant Skaggs immediately took them to the individuals at RCI

that he believed could assist him. As such, and because the Court “must resolve any doubt in favor

of the petition to set aside judgment,” it could be that Defendant, as he claims, did not receive a

copy of the Order to Show Cause. Simmons v. Ohio Civ. Serv. Emp. Assoc., 210 F.R.D. 207, 209

(S.D. Ohio 2002) (citing United Coin, 705 F.2d at 846).

Plaintiff further asserts that Defendant’s “prior experience with default judgment

demonstrates that his lack of response was a willful, deliberate strategy and displayed reckless

disregard for this Court’s proceedings.” (Doc. #26, PageID #156) (capitalization omitted). In

2003, GMAC Mortgage Corporation filed a complaint in foreclosure against Defendant and his

former spouse. (Doc. #26-2, PageID #169). Neither defendant responded, and upon the plaintiff’s

motion, the court entered default judgment against both defendants. (Doc. #26-3, PageID #s 171-

74). After entering into a sale arrangement with the defendants, the plaintiff, GMAC Mortgage

Corporation, moved to vacate the judgment entry. (Doc. #26-4, PageID #175). Shortly thereafter,

the court granted the plaintiff’s motion. (Doc. #26-5, PageID #177). Plaintiff contends that

Defendant “has undertaken the same strategy” in this case. (Doc. #26, PageID #157).

Defendant contends that the prior foreclosure action is not representative of his attitude

towards the Court and judicial proceedings. (Doc. #29, PageID #204). He explains that the

“foreclosure action against Mr. Skaggs and his former spouse were only part of a ‘short sale’

process Mr. Skaggs and his former spouse entered into with his mortgage servicer/provider, i.e.,

the plaintiff in the foreclosure action. A defendant not entering a formal appearance in a

foreclosure action when concurrently engaging in a ‘short sale’ of one’s home is not an uncommon

process, as the mortgage provider/plaintiff engages in efforts to protect its interest as part of the

‘short sale.’” Id. Thus, Defendant asserts, although it may appear from the docket that Defendant

was not in compliance with the court, he was cooperating with the plaintiff in that case. Id.

Although it is possible to find some similarities between the foreclosure case and this case,

there are more significant differences between the two cases. This case, unlike the 2003

foreclosure case, was brought solely against Defendant Skaggs for actions he allegedly undertook

in his role as a corrections officer acting under color of state law. As such, rather than seeking out

private counsel, Defendant had to request representation from the Office of the Ohio Attorney

General. See Doc. #29, PageID #s 204-05 (citing Ohio Rev. Code §109.36 et seq.) Defendant

explained that he did not know what was necessary to retain legal services from the Office of the

Ohio Attorney General. (Doc. #23-1, PageID #130). In light of his inexperience, he proceeded to

the business office at RCI to inquire about how to proceed. Id. at 129. Defendant also spoke to a

labor relations officer and his union representative about case. Id. at 130. Defendant’s experience

as a co-defendant in a foreclosure action in the Ross County Court of Common Pleas would not

have prepared him to request counsel in this case.

Further, there is no evidence to support Plaintiff’s assertion that Defendant intentionally

sought to undertake the “same strategy” in this case. If Defendant sought follow the same strategy

he undertook in the foreclosure action, then there would have been no reason for him to speak to

anyone else—certainly no one within ODRC—about this case. In sum, although Defendant

Skaggs had one prior experience with default judgment, given the significant differences between

the cases, the undersigned finds that his prior experience does not establish that his lack of response

in this case was a willful and deliberate strategy.

Plaintiff further argues that, despite knowing that he required the advice from an attorney,

“Defendant Skaggs was not diligent in his search for counsel.” (Doc. #26, PageID #158). Instead,

Plaintiff asserts, Defendant improperly relied on the advice of non-attorneys, including “an

unnamed union representative who was serving as a temp.” Id. (citing S. Elec. Health Fund v.

Bedrock Servs., 146 F. App’x 772, 777 (6th Cir. 2005) (rejecting the appellant’s argument that his

conduct cannot be labeled culpable because that his business manager for the labor union “told

him not to worry about the lawsuit,” where appellant was served with a complaint, a motion for

entry of default, the entry of default, the motion for temporary injunction, the grant of the

temporary injunction, and the motion for a show cause hearing and appellant ignored documents

from the court for over eight months)).

However, Defendant did not rely solely on the advice of his union representative and labor

relations officer. Instead, as noted above, when he received the Complaint and summons,

Defendant attempted to properly address them. Specifically, he took them to the business office

at RCI to inquire about what his next steps should be and was told that someone would prepare the

necessary paperwork to request representation. (Doc. #23-1, PageID #129). When he inquired

with the labor relations officer and union representative, they told him he “should not be

concerned” and “it would be handled appropriately by others because [he] had spoken to prison

officials within the business office ….” Id. at 130. In other words, they confirmed that because

he requested assistance from the business office, he did not need to worry.

Certainly, when Defendant did not receive any further information regarding his

representation by the Office of the Ohio Attorney General, he should have followed up with

someone from the business office at RCI. To the extent that he did not follow up, he was

undoubtedly negligent. However, “[n]egligence or failure to act reasonably is not sufficient to

sustain a default judgment.” Matthews v. Owens, No. 2:13-CV-01071, 2014 WL 4377851, at *5

(S.D. Ohio Sept. 4, 2014) (citing $22,050.00, 595 F.3d at 327).

Furthermore, despite Defendant’s negligence, it would be an abuse of discretion for the

Court not to set aside the entry of default in this case. “Where the party in default satisfies the first

two requirements for relief [from entry of default] and moves promptly to set aside the default

before a judgment is entered, the district court should grant the motion if the party offers a credible

explanation for the delay that does not exhibit disregard for the judicial proceedings.” Shepard,

796 F.2d at 195. Plaintiff has not demonstrated that Defendant exhibited “disregard for the judicial

proceedings.” Id. Although Defendant had an opportunity to respond to the Complaint in a timely

fashion and did not, he did attempt to promptly address the matter by seeking assistance at the

business office at RCI. Furthermore, after Plaintiff moved for a default judgment, Defendant

quickly sought assistance from the Warden’s Office to request representation. Shortly thereafter,

Defendant’s counsel entered their appearances and moved the Court to vacate Entry of Default.

Thus, Defendant’s failure to timely respond to the Complaint does not rise to the level of

culpability necessary to bar him from establishing good cause to set aside the entry of default. See

$22,050.00, 595 F.3d at 326-27; Shepard, 796 F.2d at 194-95.

Accordingly, Defendant’s Motion to Set Aside Entry of Default (Doc. #23) should be

GRANTED.

In light of the above recommendation to set aside the clerk’s entry of default, Plaintiff

Edward Thompson’s Motion for Default Judgment (Doc. #19) is moot and should therefore be

DENIED.

D. Answer

In addition to Defendant’s request to set aside entry of default, Defendant moves

the Court for leave to file his Answer Instanter pursuant to Fed. R. Civ. P. 6(b). (Doc.

#24). Plaintiff opposes Defendant’s Motion. (Doc. #27).

Federal Rule of Civil Procedure 6(b)(1)(B) provides that a court may, for good cause,

extend the time to file after the time has expired “if the party failed to act because of excusable

neglect.” To determine whether excusable neglect exists, the Court must balance five factors: “(1)

the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact

on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the

reasonable control of the moving party, and (5) whether the late-filing party acted in good faith.”

Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489 (1993)).

In this case, the Court finds that these factors weigh in favor of allowing the late filing. As

explained above, there is no evidence that Plaintiff has been prejudiced by the delay. Further,

although the delay has been lengthy—Defendant moved to file his answer almost six months after

it was due—the delay has not significantly impacted these proceedings. Additionally, there is no

evidence of bad faith or improper purpose on the part of Defendant. Indeed, as explained above,

when Defendant first received the summons and Complaint, he reasonably sought assistance from

the business office at RCI to request representation from the Office of the Ohio Attorney General

and was told that someone from that office would take care of his request for representation from

the Office of the Ohio Attorney General. Unfortunately for Defendant, it appears that no one from

the business office completed his request for representation. Then, although the Court issued the

Order to Show Cause in October 2022, Defendant did not receive it. In fact, he did not receive

anything from the Court or Plaintiff until December 13, 2022, when he received a copy of

Plaintiff’s Application for Entry of Default (Doc. #15) and the Clerk’s Entry of Default (Doc. #18).

Upon receiving those documents, Defendant immediately sought further assistance from the

Warden’s Office at RCI to request representation from the Office of the Ohio Attorney General.

(Doc. #23-1, PageID #130). A little more than two weeks later, on December 30, 2023, counsel

for Defendant entered their appearances and Defendant moved to set aside entry of default (Doc.

#23) and to file his answer (Doc. #24).

However, Defendant’s actions in failing to obtain representation from the Office of the

Ohio Attorney General are largely the reason for the delay. Further, to the extent that Defendant

should have followed up regarding the request for representation, the delay was generally within

Defendant’s reasonable control. Nonetheless, on balance, these two factors are outweighed by the

lack of prejudice to Plaintiff, the lack of adverse effect on the Court’s administration of future

proceedings in this case, and Defendant’s lack of bad faith in filing a late answer. See Inhalation

Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 12986643, at *2

(S.D. Ohio Aug. 30, 2012) (citing Morgan v. Gandalf, Ltd., 165 F. App’x 425, 430 (6th Cir. 2006)

(affirming a district court’s decision to accept the defendants’ eight-month-late answer, which was

tendered after the close of discovery and after summary judgment motions were filed, because

there was no prejudice to the plaintiff, no evidence of bad faith by the defendants, and the

defendants “almost certainly” would have been entitled to have any default judgment set aside if

the court had not accepted their late answer)).

Accordingly, Defendant’s Motion for Leave to File Answer Instanter (Doc. #24) should

be GRANTED.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendant’s Motion to Set Aside Entry of Default (Doc. #23) be

GRANTED;

2. The Clerk be ORDERED to set aside its previous entry of default against

Defendant;

3. Plaintiff Edward Thompson’s Motion for Default Judgment (Doc. #19) be

DENIED as moot; and

4. Defendant’s Motion for Leave to File Answer Instanter (Doc. #24) be

GRANTED.

July 10, 2023 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendations. Such objections shall specify the portions of the Report

objected to and shall be accompanied by a memorandum of law in support of the objections. If

the Report and Recommendation is based in whole or in part upon matters occurring of record at

an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless

the assigned District Judge otherwise directs. A party may respond to another party’s objections

within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.

1981).