Opinion

Woods Bey v. Ally Bank, Inc.

Court
District Court, W.D. Tennessee
Filed
Sep 28, 2021
Cited by
0 cases
Authority
More cited than 29.7%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

Natalie Elaine Woods Bey and )

Clifton Boyd Woods Bey, )

)

Plaintiffs, )

)

vs. ) Civil Action No.: 1:21-01079-STA-jay

)

Ally Bank, Jeffrey Brown, CEO, Jennifer )

LaClair, CFO, Douglas Timmerman, PAF, )

David P. Shevsky, CRO, )

)

Defendants. )

REPORT AND RECOMMENDATION

Before the Magistrate Judge is Plaintiffs’ Motion for Clerk’s Entry of Default [D.E. 15].

Defendants have responded in opposition [D.E. 17]. After a review of the pleadings, the Magistrate

Judge recommends that Plaintiffs’ Motion be denied.

Plaintiffs filed their Complaint on May 24, 2021 and served their Complaint on Defendants

on June 17, 2021. On July 6, 2021, Defendants moved for additional time to respond to the

Complaint, which was granted [D.E. 8, 9]. On July 29, 2021, Defendants filed a Motion to Dismiss

and a Memorandum in Support of their motion. [D.E. 10 and 11]. Thereafter, Plaintiffs moved for

a clerk’s entry of default on August 16, 2021, which the Clerk denied the same day based on

Defendants’ July 29, 2021, pleading.

On August 30, 2021, Plaintiffs filed an objection to the Clerk’s Order and refiled their

Motion for Entry of Default. [D.E. 14, 15]. Defendants state that after Plaintiffs’ most recent filing

and further investigation, Defendants erred in not effectively serving the Motion to Dismiss on

Plaintiffs [D.E. 17 at 2]. These documents were timely electronically filed with the Court’s system

but not served by mail as required in this case. Defendants maintain that at the time of filing,

counsel was not aware the Plaintiffs were not registered to receive copies of filings electronically.

Defendants affirm that they have corrected their error, mailing a copy of the documents by certified

mail on September 10, 2021. Id. Defendants ask the Court to deny Plaintiffs’ motion for an entry

of default and grant Plaintiffs an additional 21 days to respond to the Motion to Dismiss [D.E. 17

at 4-5].

Defendants take the position that the Court should deny Plaintiffs’ Motion for Entry of

Default, despite the clerical error, in the interest of the law’s preference for a resolution of the case

on the merits. A denial of Plaintiffs’ Motion for Entry of Default will avoid unnecessary motion

practice. The Magistrate Judge agrees with Defendants that if a default were granted, Defendants

would have sufficient grounds to prevail on a motion to set aside the default. Plaintiffs would not

be prejudiced by the setting aside of the default, as there would only be a minor delay in advancing

the case, which is insufficient to constitute prejudice. See Hooker v. Hooker, No. CIV. 11-2252-

JTF-TMP, 2014 WL 4718193, at *4 (W.D. Tenn. July 9, 2014), report and recommendation

adopted, No. 2:11-CV-02252-JTF, 2014 WL 4716436 (W.D. Tenn. Sept. 22, 2014) (quoting

Krowtoh II LLC v. ExCelsius Int'l Ltd., 330 F. App'x 530, 535 (6th Cir.2009)). Second, Defendants

correctly argue that the Motion to Dismiss itself is evidence that they have a “meritorious defense”

as defined by the case law, which states that if “there is some possibility that the outcome of the

suit after a full trial will be contrary to the result achieved by the default,” then the defense is

meritorious. See United States v. $22,050.00 U.S. Currency, 595 F.3d 318, 326 (6th Cir.2010)

(holding that a defendant is not required to show that its defense is likely to succeed on the merits

or offer detailed factual allegations in support of the defense). Third, the Magistrate Judge agrees

with Defendants’ argument that their mistake in failing to serve their motion and memorandum by

mail does not rise to the level of culpability to sustain a default. “[M]ere negligence or failure to

act reasonably is not enough to sustain a default.” $22,050.00 U.S. Currency, 595 F.3d at 194. See

also Thompson v. Am. Home Assur. Co., 95 F.3d 429, 433 (6th Cir.1996).

In conclusion, Plaintiffs were not effectively served with a copy of Defendants’ Motion to

Dismiss and Memorandum in Support even though these documents were filed with the Court on

the deadline to respond to the Complaint. However, given that the mistake was a clerical error and

that the mistake in filing has now been remedied, the Magistrate Judge recommends that this Court

deny Plaintiffs’ Motion for Entry of Default. The Magistrate Judge further recommends that

Plaintiffs be given an extension of time of 21 days to respond to the Motion to Dismiss.

Respectfully Submitted this 28th day of September, 2021.

s/Jon A. York

UNITED STATES MAGISTRATE JUDGE

ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT AND RECOMMENDATION

MUST BE FILED WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A

COPY OF THE REPORT AND RECOMMENDATION. 28 U.S.C. § 636(b)(1). FAILURE

TO FILE THEM WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER OF

OBJECTIONS, EXCEPTIONS, AND ANY FURTHER APPEAL.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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