1199 SEIU Regional Pension Fund, by Todd Hobler and Daniel Farberman as Trustees and fiduciaries of the Fund v. Weinberg Campus

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

1199 SEIU REGIONAL PENSION FUND,

by Todd Hobler and Daniel Farberman as

Trustees and Fiduciaries of the Fund,

24-CV-685-LJV

Plaintiffs, DECISION & ORDER

v.

WEINBERG CAMPUS and KENNETH

ROGERS,

Defendants.

On July 23, 2024, the plaintiffs—1199 SEIU Regional Pension Fund by Todd

Hobler and Daniel Farberman as trustees and fiduciaries of that fund—commenced this

action under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the

Labor-Management Relations Act of 1947 (“LMRA”). Docket Item 1. The complaint

names two defendants: Weinberg Campus (“Weinberg”), a New York company, and

Kenneth Rogers, its alleged “officer, agent, and/or managing agent.” Id. at ¶¶ 9-10.

On September 25, 2024, after the defendants failed to appear or respond to the

complaint, the plaintiffs asked the Clerk of the Court to enter a default against both

Weinberg and Rogers, Docket Item 5, and the clerk did so, Docket Item 7. A week

later, the plaintiffs moved for a default judgment against both defendants. Docket Item

8. This Court then set a briefing schedule on that motion, ordering the defendants to

respond by October 16, 2024. Docket Item 13.

On October 8, 2024, Rogers, through counsel, “provisionally” answered the

complaint. Docket Item 14; see Docket Item 19-2 at ¶ 29. Two days later, the plaintiffs

filed a letter stating that they had been in contact with Rogers about “the possibility . . .

that the parties may resolve these claims without further judicial intervention.”1 Docket

Item 15. “To allow [more] time for th[o]se discussions,” the plaintiffs asked this Court to

extend the deadline for Rogers to oppose the motion for a default judgment until the end

of October. Id. This Court granted that extension. Docket Item 16.

On November 1, 2024, Rogers responded to the plaintiffs’ motion for a default

judgment. Docket Items 17 and 18. He also moved to vacate the clerk’s entry of

default against him or, in the alternative, for leave to file an answer out of time and to

amend his “provisional” answer “to include an affirmative defense for improper service.”

Docket Item 19. The plaintiffs then replied, asking this Court to grant their motion for a

default judgment against both defendants and to deny Rogers’s cross-motion. Docket

Item 21.

Several months later, Rogers notified the Court that Weinberg had “filed a

voluntary petition under chapter 11 of the Bankruptcy [C]ode,” contending in conclusory

fashion that the bankruptcy resulted in “an automatic stay of this action [under] 11

U.S.C. § 362.” Docket Item 22. In response, the Court issued a text order explaining

that while Weinberg’s chapter 11 petition indeed stayed the plaintiffs’ claims against

Weinberg, it did not necessarily stay the claims against Rogers. Docket Item 23; see

Queenie, Ltd. v. Nygard Int’l, 321 F.3d 282, 287 (2d Cir. 2003) (“A suit against a

codefendant is not automatically stayed by [a] debtor’s bankruptcy filing.” (alteration and

citation omitted)). Noting that the codefendant of a bankruptcy petitioner “bears the

1 The plaintiffs nonetheless “reserve[d] their rights to object to” Rogers’s filing of

an answer. Docket Item 15.

burden of demonstrating . . . the need for” a stay against the codefendant, the Court

held that Rogers had not met that burden. Docket Item 23 (quoting Mardice v. Ebony

Media Operations, LLC, 2021 WL 146358, at *4 (S.D.N.Y. Jan. 15, 2021)). The Court

therefore gave Rogers until June 27, 2025, to move for such a stay but ordered that if

he did not, the Court would consider the dueling motions. Id.

Rogers did not move to stay the claims against him, and the time to do so has

passed. See id. The Court therefore considers the plaintiffs’ motion for a default

judgment against Rogers as well as Rogers’s motion to vacate the entry of default

against him. And for the reasons that follow, this Court grants Rogers’s motion and

denies the plaintiffs’ motion for a default judgment against Rogers.2

LEGAL PRINCIPLES

Federal Rule of Civil Procedure 55 “provides a two-step process for obtaining a

default judgment.” New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). First, the

plaintiff must secure the clerk’s entry of default by demonstrating—“by affidavit or

otherwise”—that the opposing party “has failed to plead or otherwise defend” the action.

Fed. R. Civ. P. 55(a). Second, the plaintiff then must “seek a judgment by default under

Rule 55(b).” Green, 420 F.3d at 104. “If the plaintiff’s claim is for a sum certain or a

sum that can be made certain by computation,” a default judgment may be obtained

from the clerk; “[i]n all other cases, the party must apply to the court for a default

judgment.” Fed. R. Civ. P. 55(b).

2 Because the plaintiffs’ claims against Weinberg are subject to the automatic

stay imposed by 11 U.S.C. § 362(a)(1), see supra, this Court does not address the

plaintiffs’ motion for a default judgment as against Weinberg here.

“[A]fter [a] default is entered, ‘the court may set aside an entry of default for good

cause.’” Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v.

Moulton Masonry & Const., LLC, 779 F.3d 182, 186 (2d Cir. 2015) (per curiam)

(alteration and emphasis omitted) (quoting Fed. R. Civ. P. 55(c)). “Because Rule 55(c)

does not define the term ‘good cause,’ the Second Circuit has established three criteria

that must be assessed in order to decide whether to relieve a party from [a] default or

from a default judgment.” Id. (alterations omitted) (quoting Enron Oil Corp. v.

Diakuhara, 10 F.3d 90, 96 (2d Cir.1993)). “The[] criteria are: ‘(1) the willfulness of

default, (2) the existence of any meritorious defenses, and (3) prejudice to the non-

defaulting party.’” Id. (quoting Guggenheim Cap., LLC v. Birnbaum, 722 F.3d 444, 455

(2d Cir. 2013)). Courts consider those same factors in deciding whether to enter a

default judgment in the first instance.3 See Deep Foods Inc. v. Deep Foods Inc., 419 F.

Supp. 3d 569, 576-77 (W.D.N.Y. 2019).

Decisions about “whether to enter [a] default judgment” or to vacate an entry of

default are “committed to the district court’s discretion.” See id. at 577 (quoting

Greathouse v. JHS Sec. Inc., 784 F.3d 105, 116 (2d Cir. 2015)); Enron, 10 F.3d at 95

(“The dispositions of motions for entries of defaults and default judgments and relief

from the same . . . are left to the sound discretion of a district court because it is in the

3 A party moving for a default judgment also must show “that the unchallenged

allegations and all reasonable inferences drawn from the evidence provided establish

the defendant’s liability on each asserted cause of action.” LG Cap. Funding, LLC v.

Accelera Innovations, Inc., 2018 WL 5456670, at *4 (E.D.N.Y. Aug. 13, 2018); see

Bricklayers, 779 F.3d at 187. Because this Court denies the motion for a default

judgment as to the claims against Rogers, see infra, and because the claims against

Weinberg are stayed, the Court need not and does not reach the question of whether

the complaint’s allegations establish either defendant’s liability.

best position to assess the individual circumstances of a given case and to evaluate the

credibility and good faith of the parties.”). “[I]n light of the Second Circuit’s ‘oft-stated

preference for resolving disputes on the merits,’ default judgments are ‘generally

disfavored,’ and doubts should be resolved in favor of the defaulting party.” United

States v. Veeraswamy, 765 F. Supp. 3d 168, 191 (E.D.N.Y. 2025) (quoting Enron, 10

F.3d at 95-96); see also Green, 420 F.3d at 104 (noting that “a default judgment is ‘the

most severe sanction which the court may apply’” (quoting Cody v. Mello, 59 F.3d 13,

15 (2d Cir. 1995))). Moreover, courts “impose a less stringent standard upon the

defaulting party when it seeks to vacate an entry of default rather than a default

judgment.” See Phelan v. Chin, 2012 WL 3597409, at *1 (W.D.N.Y. Aug. 20, 2012)

(citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).

DISCUSSION

Rogers says that the three factors outlined above—willfulness of default,

availability of meritorious defenses, and prejudice to the plaintiffs, Bricklayers, 779 F.3d

at 186—weigh in favor of granting his motion to vacate the entry of default against him.

See Docket Item 19-7 at 5-12.4 The plaintiffs disagree, saying that this Court instead

should grant their motion for a default judgment. See Docket Item 21-1 at 3-8. This

Court agrees with Rogers.

4 Rogers filed the same motion and memorandum of law in opposition to the

plaintiffs’ motion for a default judgment and in support of his motion to vacate the clerk’s

entry of default. Compare Docket Items 17 and 18, with Docket Items 19-1 and 19-7.

For the sake of simplicity, this Court refers only to Docket Item 19-7 when referring to

Rogers’s arguments. Throughout this decision and order, page number in docket

citations refer to ECF pagination.

I. WILLFULNESS OF DEFAULT

The Second Circuit has “‘interpreted willfulness, in the context of a default, to

refer to conduct that is more than merely negligent or careless,’ but is instead

‘egregious and not satisfactorily explained.’” Bricklayers, 779 F.3d at 186 (alteration

and some internal quotation marks omitted) (quoting SEC v. McNulty, 137 F.3d 732,

738 (2d Cir. 1998)).

In support of his motion to vacate the entry of default, Rogers submitted an

affidavit with his account of the series of events that led to his default. Docket Item 19-

2. First, he says that contrary to the plaintiffs’ allegations, “at the time [relevant to] this

action[, he] was . . . chair of [Weinberg’s] Board of Directors,” but not an “employee . . .

‘officer, agent, and/or managing agent’” of the company. Id. at ¶ 5 (quoting Docket Item

1 at ¶ 10). In fact, he says, he was “a retired self-employed business consultant who

worked from [his] residence.” Id. Therefore, he contends that the plaintiffs’ attempt to

serve him at Weinberg’s premises “by delivering a . . . copy of the [s]ummons and

[c]omplaint” to Lora Snow, Weinberg’s executive secretary, was not effective: He was

never served at his “actual place of business,” his residence. See id. at ¶¶ 5-7.

Rogers nonetheless acknowledges that he received notice of the complaint when

Weinberg’s outside counsel, Jonathan D. Schechter, forwarded it to him on July 25,

2024.5 Id. at ¶ 18. Rogers says that he “immediately asked . . . Schechter” if he

“need[ed] to hire [Schechter] as [his] lawyer.” Id. at ¶ 19. Schechter responded that

5 Rogers refers several times to July 25, 2024, as the date when the plaintiffs

moved for a default judgment. See, e.g., Docket Item 19-2 at ¶ 25; Docket Item 19-7 at

6. This appears to be a typo: The plaintiffs did not move for a default judgment until

September 25, 2024, see Docket Item 8; indeed, the July date makes little sense given

the timeline provided in Rogers’s declaration, see Docket Item 19-2 at ¶¶ 18-28.

Weinberg’s Chief Executive Officer Robert Mayer should “enter into a payment plan with

the” plaintiffs, and a few days later, Rogers told Schechter that Mayer “was already

researching how Weinberg [had] amicably resolved” a similar action against the

company “without Weinberg’s needing to answer.” Id. at ¶¶ 11, 20. Schechter then told

Rogers that “he would defend” Rogers in this action, even on a “pro bono” basis “if

necessary.” Id. at ¶ 21. Thinking that Schechter had the situation under control—and

imagining that the lawsuit might very well settle—Rogers continued to fulfill his role as

Weinberg’s chair. See id. at ¶ 22. Specifically, he “focus[ed]” on “trying to sell

Weinberg’s assets to discharge all of its debts.” Id.

Rogers says that he did not receive notice when the Clerk of the Court entered a

default against him on September 18, 2024, presumably “because . . . . it was mailed to

[Weinberg’s address],” not his. Id. at ¶ 24. But a week later,6 when the plaintiffs moved

for a default judgment, Mayer sent him a copy of the motion. Id. at ¶¶ 25-27. On

October 8, 2024, Rogers “contacted [his current counsel,] William F. Savino, and asked

for a meeting.” Id. at ¶ 28. On the same day, in “hop[es] that [filing] an answer would

persuade [the plaintiffs] to withdraw [their d]efault [j]udgment [m]otion at least as against

[Rogers],” Rogers and his counsel “prepared [and filed an] initial [a]nswer.” Id. at ¶ 29.

Rogers says that all this shows that his default was not willful: While his actions

may have been “negligent or careless,” he says, his conduct “does not rise to the level

of ‘egregious.’” Docket Item 19-7 at 7. In contrast, the plaintiffs say that Rogers’s

“excuses are underwhelming” and that he has not adequately “explain[ed] his failure to

6 As noted above, while Rogers refers to this motion as being filed on July 25,

2024, see Docket item 19-2 at ¶ 25; supra note 5, it was filed on September 25, 2024,

see Docket Item 8.

meet the Court’s deadlines or substantiate what his defense to the [plaintiffs’] action

would be.” Docket Item 21-1 at 6. They contend that Rogers was not just careless but

that “[h]e simply ignored th[is] case . . . [in h]op[es] that . . . Schechter would handle the

litigation.” Id. And that, they say, “is just not enough to allow this Court to set aside the

default against [Rogers].” Id.

The Court agrees with Rogers. While Rogers’s behavior may not have been

entirely “diligent” or “prudent,” he apparently believed that as chair of Weinberg’s Board

of Directors, he was being represented by Weinberg’s counsel. See Docket Item 19-2

at ¶¶ 20-21. That would seem to be a fair assumption, especially given Schechter’s

comments. See id. at ¶¶ 19-21. But because that attorney never appeared in this

action—or, apparently, took any other steps to represent him—Rogers was effectively

pro se until he retained his current counsel on October 8, 2024.

“[A]s a general rule a district court should grant . . . default judgment[s] sparingly

and . . . set aside the entry of default freely when the defaulting party is appearing pro

se.” Enron, 10 F.3d at 96 (italics omitted). Moreover, Rogers contacted Weinberg’s

counsel soon after he learned about the lawsuit and had at least some reason to believe

that Weinberg’s counsel would protect him as well. And even if one questions Rogers’s

wisdom in relying so heavily on Schechter, Rogers sought to rectify his mistake within

weeks of the entry of default.7 See Docket Item 19-2 at ¶¶ 26-29.

7 At this time—before Rogers has made the argument in any formal pleading—

the Court does not reach the issue of whether he was properly served. Nonetheless,

the fact that this is an open question is another reason to vacate the entry of default.

See Docket Item 19-7 at 8; see also O’Callaghan v. Sifre, 242 F.R.D. 69, 72 (S.D.N.Y.

2007) (“A default judgment may not be granted . . . if the defendant has not been

effectively served with process.”); Joe Hand Promotions, Inc. v. Yakubets, 3 F. Supp. 3d

Those facts make this case very different from Chao v. Party Rental Enters., Inc.,

2008 WL 3851812 (N.D.N.Y. Aug. 15, 2008), upon which the plaintiffs rely. See Docket

Item 21-1 at 4-5. In Chao, the lawsuit was preceded by a Department of Labor

investigation in which the defendants “chose not to participate.” 2008 WL 3851812, at

*7. “Moreover,” while the “plaintiff’s counsel kept [the] defendants apprised of each

aspect of the litigation once it was commenced . . . [f]or nearly six months after the

complaint was filed, [the] defendants ignored in toto any obligation to respond to the

litigation, contact the Court, or contact [the] plaintiff’s counsel.” Id. (italics omitted). In

contrast, the period during which Rogers failed to respond is much shorter, and

Rogers’s failure to respond stemmed from his mistaken belief that he had counsel

representing him. So unlike Chao, there is no “pattern of deliberate avoidance,” see id.

at *8, that would support a finding of willfulness here.

The other cases cited by the plaintiffs are likewise distinguishable. See, e.g.,

Guangxi Nanning Baiyang Food Co. v. Long River Int’l, Inc., 2010 WL 1257573, at *4

(S.D.N.Y. Mar. 30, 2010) (finding default to be willful in contract case where defendant

“delayed for a substantial period of time . . . in letting [the plaintiff] know whether it was

refusing or accepting the . . . shipments [at issue]”; did not respond to the plaintiff’s

attempts at settlement negotiations prior to entry of default; and “neglected to submit an

answer . . . until more than six weeks [after] the filing of the complaint”); Gladys Music v.

Ed Smith Prods., Ltd., 1994 WL 705265, at *2 (N.D.N.Y. Dec. 6, 1994) (finding default

willful based on the “defendants’ experience with copyright infringement litigation, their

261, 270 (E.D. Pa. 2014) (stating that a clerk’s entry of default “is valid only if the

defendant was properly served”).

representation by counsel, and the fact that . . . plaintiffs notified the . . . defendants at

least twice of their intention to seek default judgment”); FEC v. Beatty for Cong. Comm.,

1987 WL 14658, at *1-2 (S.D.N.Y. Oct. 23, 1987) (finding default willful where pro se

defendant failed to file an answer for “five months” and did “not claim that his default

was occasioned by difficulties in finding counsel”).

Instead, this case is more akin to Elohim EPF USA, Inc. v. 162 D & Y Corp.,

2021 WL 2292682 (S.D.N.Y. June 4, 2021). There, the defendants said that their

default was the result of a “miscommunication” between corporate and outside counsel

about who would handle the litigation; the defendants “did not notice th[e] mistake until

they were in default, and upon noticing, . . . retained . . . counsel who then entered a

notice of appearance.” Id. at *2. While the court found that the defendants had made a

“serious mistake” and were “at least negligent,” it nonetheless held that the delay was

“not willful” and vacated the entry of default.8 Id. at *3. The same is true here.

The first factor therefore weighs in favor of Rogers.

II. AVAILABILITY OF MERITORIOUS DEFENSES

“A defendant seeking to vacate an entry of default must present some evidence

beyond conclusory denials to support his defense.” Enron, 10 F.3d at 98. “The test of

such a defense is measured not by whether there is a likelihood that it will carry the day,

but whether the evidence submitted, if proven at trial, would constitute a complete

defense.” Id.

8 In fact, the defendants in Elohim took significantly longer—“nearly a year”—to

rectify their mistake than Rogers did, although that case also involved other reasons for

delay (“most notably . . . the COVID-19 pandemic”) not present here. See 2021 WL

2292682, at *3.

Here, the plaintiffs assert claims against Rogers under sections 404 and 406 of

ERISA.9 Docket Item 1 at ¶¶ 38-38, 46-47. “[A]n individual cannot be held ‘liable for

corporate ERISA obligations solely by virtue of his role as officer, shareholder, or

manager.’” Bricklayers, 779 F.3d at 118 (quoting Sasso v. Cervoni, 985 F.2d 49, 50 (2d

Cir. 1993)). But sections 404 and 406 of ERISA impose liability on anyone who “act[s]

as a fiduciary . . . when taking the action subject to complaint.” Sheet Metal Workers

Loc. Union No. 46 Health Fund by Milne v. T.J.V. Mech. LLC, 2025 WL 825308, at *5-7

(W.D.N.Y. Mar. 17, 2025) (quoting Pegram v. Herdrich, 530 U.S. 211, 226 (2000)). The

statute defines a fiduciary as one who “‘exercises any discretionary authority or

discretionary control respecting management of such plan or exercises any authority or

control respecting management or disposition of its assets’ or ‘has any discretionary

authority or discretionary responsibility in the administration of such plan.’” Id. (quoting

29 U.S.C. § 1002(21)(A)).

Rogers argues that he has “at least two meritorious defenses” to those claims.

Docket Item 19-7 at 7-9. First, he says that this Court lacks personal jurisdiction

because he was not properly served. Id. at 7-8. Second, he says that he “cannot be

held personally liable under ERISA for unpaid contributions to the multi-employer

pension plan” because “he is not a fiduciary of the employee benefit plans and did not

participate in any failure to pay the plans.” Id. at 8-9. He submitted a declaration

9 The plaintiffs assert two additional claims in their complaint: The first—brought

only against Weinberg—is under both the LMRA and ERISA, see Docket Item 1 at

¶¶ 15-23, while the fourth asks this Court to enjoin both defendants from violating

ERISA and the LMRA, see id. at ¶¶ 49-55. But neither the plaintiffs nor Rogers refer to

the LMRA in discussing his potential meritorious defenses or lack thereof. See Docket

Item 19-7 at 6-8; Docket Item 21-1 at 6-7.

attesting to facts in support of these arguments, alleging that his work address is the

same as his home address and that he “never had operational or cash management

responsibility for Weinberg or control over when payments were made and to whom.”

See Docket Item 19-2 at ¶¶ 5-6, 10-14. The person “responsible” for those duties in

2023 and 2024, he says, was Mayer. Id. at ¶ 12.

The plaintiffs counter that they properly served Rogers under N.Y. C.P.L.R.

§ 308(2) at the place “where he worked,” and that Rogers was indeed the person with

“actual and apparent authority over the operations” for Weinberg at the relevant times.

Docket Item 21-1 at 6-7. And they argue that Rogers’s “conclusory” defenses are not

enough to justify vacating default here. Id. at 5-7.

The Court disagrees that Rogers has offered only conclusory denials: As just

noted, he submitted a declaration attesting to specific facts in support of his defenses.

See id. at ¶¶ 5-6, 10-14. So Rogers has raised two potentially meritorious defenses.

Whether either defense carries the day is, of course, a different question—one that

depends on the resolution of factual disputes. But it would be “inappropriate” to resolve

those factual disputes in this posture. See King Vision Pay Per View v. Esposito, 2002

WL 31413806, at *1 (S.D.N.Y. Oct. 24, 2002) (granting motion to vacate default

judgment where defendant “presented a potentially meritorious defense” that “raise[d] a

material issue of fact”). So the second factor also weighs in favor of Rogers.

III. PREJUDICE TO THE PLAINTIFFS

To establish prejudice in the default context, a plaintiff must do more than show

that vacating a default or denying a default judgment “will delay . . . recovery on the

claim or will require [the plaintiff] to try the case on the merits and incur the attendant

costs.” Smith v. Farm Fam. Cas. Ins. Co., 2010 WL 11541930, at *2 (N.D.N.Y. Jan. 25,

2010) (citing Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983)). “Rather, the plaintiff

must show that the default has hindered [its] ability to pursue the cause of action, which

may include the loss of evidence or increased discovery difficulties.” Id.; see Green,

420 F.3d at 110 (“[D]elay alone is not a sufficient basis for establishing prejudice.

Something more is needed. For example, delay may thwart plaintiff’s recovery or

remedy . . .[,] result in the loss of evidence, create increased difficulties of discovery, or

provide greater opportunity for fraud and collusion.” (citations and internal quotation

marks omitted)).

The plaintiffs say that “[i]t would waste the time and resources for the Court to

vacate the default[ and] take . . . discovery, only to learn, after all that,” that Rogers is

liable for the amount alleged in the complaint. Docket Item 21-1 at 7. But that

argument can be made in every case when a defendant defaults, and it is not enough to

support a finding of prejudice. Again, “the mere possibility that delaying the resolution

of this case may defer [the p]laintiff[s’] ability to get the relief [they] seek[] in this litigation

is insufficient, particularly in light of the strong policy reasons favoring resolving cases

on the merits.” See Elohim, 2021 WL 2292682, at *2. And that is particularly true

because Rogers’s delay in filing an answer was relatively short, a period of less than

two months.10

10 What is more, the plaintiffs’ suggestion that they have substantively been

prejudiced is a bit disingenuous given the fact that they filed a letter stating that they

had been in contact with Rogers about “the possibility . . . that the parties may resolve

these claims without further judicial intervention” and asking this Court to extend the

deadline for Rogers to oppose the motion for a default judgment until the end of

October. See Docket Item 15.

Therefore, all three factors weigh in favor of Rogers, and the Court grants his

motion to vacate the clerk’s entry of default and denies the plaintiffs’ motion for a default

judgment against Rogers. Rogers’s “provisional” answer, Docket Item 14, is deemed

his operative pleading in this action.11

CONCLUSION

For the reasons stated above, the plaintiffs’ motion for a default judgment is

DENIED as to Rogers, and Rogers’s motion to vacate the clerk’s entry of default against

him is GRANTED. The plaintiffs’ claims against Weinberg remain stayed. This Court

will refer the case to a magistrate judge to proceed with discovery by a separate order.

SO ORDERED.

Dated: July 11, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE

11 In light of this Court’s decision granting Rogers’s motion to vacate the clerk’s

entry of default, it need not reach his alternative requests to file an answer out of time or

to amend his answer. See Docket Item 19-7 at 10-12. In any event, Local Rule of Civil

Procedure 15(a) requires that “[a] movant seeking to amend or supplement a pleading

. . . must attach an unsigned copy of the proposed amended pleading as an exhibit to

the motion.” And Rule 15(b) further provides that “[u]nless the movant is proceeding pro

se, the amendment(s) or supplement(s) to the original pleading shall be identified in the

proposed pleading through the use of a word processing ‘redline’ function or other

similar markings that are visible in both electronic and paper format.” Loc. R. Civ. P.

15(b) (italics omitted). Rogers did not file any proposed amended answer here. Should

Rogers wish to amend his “provisional” answer, he must comply with Local Rule 15.