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Jones v. Roper et al                                                                   Doc. 46
Case 4:05-cv-00028-CDP        Document 46        Filed 01/23/2007        Page 1 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EUGENE KENNETH JONES-El,                                                               )
)
Plaintiff,                                                                             )
)
vs.                                                                                    )         Case No. 4:05CV28   CDP
)
SCOTT ROPER, et al.,                                                                   )
)
Defendants.                                                                            )
MEMORANDUM AND ORDER
Plaintiff Eugene Kenneth Jones is a state prisoner proceeding pro se in this
civil action pursuant to 42 U.S.C. § 1983.   Jones brought this case against several
prison employees, alleging violations of his constitutional rights.  I dismissed the
claims against all defendants except Scott Roper.  Roper is a former employee of
the Missouri Department of Corrections and was served by a United States
Marshal on April 27, 2006.    Roper did not file any answer, and a clerk’s entry of
default was entered on October 5, 2006.  On December 6, I held a hearing on
Jones’s motion for default judgment, and entered default judgment against Roper
in the amount of $5200.  Roper now moves to set aside the default judgment.
Because I find that Roper has presented evidence of excusable neglect and of a
meritorious defense, and because Jones has not been prejudiced by Roper’s delay,
I will grant Roper’s motion to set aside the default judgment.
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Case 4:05-cv-00028-CDP        Document 46        Filed 01/23/2007        Page 2 of 6
Discussion
Under Federal Rule of Civil Procedure 60(b)(1), the court may relieve a
party from a final judgment for “mistake, inadvertence, surprise, or excusable
neglect.”  In determining whether to set aside a default judgment for “excusable
neglect,” I must take into account “all relevant circumstances surrounding the
party’s omission.”  Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. Partnership, 507
U.S. 380, 395 (1993).  I am required to balance a number of factors, including the
danger of prejudice to Jones, the length of delay and its potential impact on
judicial proceedings, the reason for the delay, and whether Roper acted in good
faith.  Id.  Typically, courts “have looked at 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.”  Johnson v. Dayton Electric Man. Co., 140 F.3d 781, 784 (8th Cir.
1998).
Roper asserts that his failure to respond to Jones’s complaint was not in bad
faith.  Roper’s affidavit states that he mistakenly believed that he was being
defended by the Missouri Attorney General’s Office as a result of two
conversations he had with a senior Corrections official.  Roper asserts that had he
known that he needed to request that the Attorney General’s Office represent him,
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Case 4:05-cv-00028-CDP        Document 46        Filed 01/23/2007        Page 3 of 6
he would have done so immediately after being served.  He further states that he
did not know that he was not being represented by the Attorney General’s Office
until he received a copy of the judgment against him.
Jones incorrectly argues that the Court notified Roper of his failure to
respond several times before and after the entry of default judgment.   Roper was
not served with any of Jones’s motions or this Court’s orders other than the initial
complaint until default judgment was entered against him.  Roper’s contact
information was filed under seal by the Attorney General’s Office.  The United
States Marshal initiated service upon Roper, but an examination of the record
reveals that no documents were sent to Roper other than the default judgment.
While the Attorney General’s Office received notice of Roper’s default, this does
not constitute notice to Roper because he was not represented by the Attorney
General’s office at that time.  See Bury v. Bradish, 2006 WL 2792864, at *1 (E.D.
Cal. Sept. 28, 2006).   Although it seems to me that the Attorney General’s office
may have had some moral obligation to notify Mr. Roper of these proceedings
rather than standing silently while default judgment was entered against him, it
had no legal duty to act because Roper had not officially requested representation.
Roper’s failure to respond, as a result of his asserted mistaken belief that the
Missouri Attorney General’s Office would automatically represent him, appears to
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Case 4:05-cv-00028-CDP        Document 46        Filed 01/23/2007        Page 4 of 6
have been in good faith.  Such a mistake can constitute a valid reason to set aside
default.  See Brown v. DeFilippis, 695 F. Supp. 1528, 1530 (S.D.N.Y. 1988)
(setting aside default judgment where the defendant asserted that he had requested
representation by the New York Attorney General’s Office but the it never
received his request); see also Bury v. Bradish, No. 1:05CV600, slip op. at 3 (E.D.
Cal. November 16, 2006) (setting aside a clerk’s entry of default where the
defendant mistakenly believed that the California Department of Corrections and
Rehabilitation would automatically arrange for her defense after she returned the
waiver of service form).
Jones cites a couple of cases in opposition to Roper’s motion.  Jones is
correct in his argument that excusable neglect will not be found for a pro se
litigant merely because he does not have an attorney, but that is not Roper’s claim
here; Roper instead argues that his failure to reply was excusable neglect because
he believed that he was being represented by an attorney.  Additionally, the cases
where the defendant’s attorney’s negligence has caused the default are not on
point.  See Noah v. Bond Cold Storage, 408 F.3d 1043 (8th Cir. 2005); see also
Murray v. Solidarity of Labor Org. Intern. Ben., 172 F. Supp. 2d 1155 (N.D. Iowa
2001).   While defendants are responsible for their attorney’s behavior and choose
their counsel at their peril, Roper was not represented by the Attorney General’s
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Case 4:05-cv-00028-CDP        Document 46        Filed 01/23/2007        Page 5 of 6
Office until after default judgment was granted.  Therefore, the holdings of those
cases has no relevance to my determination here.
Although more than seven months passed after Roper was served before
default judgment was entered, Roper responded within two weeks of notification
of default judgment.   Roper’s delay is explained by his asserted belief that he was
being represented by the Attorney General’s Office.  Additionally, no evidence has
been presented that Roper’s delay has prejudiced Jones.  The necessary prejudice
must be more than mere delay, but must create a delay which results in “loss of
evidence, increased difficulties of discovery, or provides for a greater opportunity
for fraud and collusion.”  Johnson, 140 F.3d at 785.
Finally, Roper’s claim that his actions did not violate Jones’ rights is a
meritorious defense.  While Jones may contest these facts, the standard for
determining whether the defaulting party has a meritorious defense is not whether
the evidence is undisputed or insurmountable, but whether the proffered evidence
“would permit a finding for the defaulting party.”  Johnson, 140 F.3d at 785
(quoting Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d
808, 812 (4th Cir. 1988)).  Roper’s affidavit constitutes sufficient evidence to
permit a finding in his favor.
Accordingly,
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Case 4:05-cv-00028-CDP        Document 46        Filed 01/23/2007        Page 6 of 6
IT IS HEREBY ORDERED that Defendant Roper’s motion to set aside
default judgment [#38] is granted, and both the judgment entered on December 6
and the Clerk’s entry of default on October 5, 2006 are VACATED.
IT IS FURTHER ORDERED that Defendant Roper shall file his
responsive pleading by February 12, 2007.
IT IS FINALLY ORDERED that all other pending motions are denied as
moot.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of January, 2007.
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