UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTICT OF MICHIGAN 

SOUTHERN DIVISION 

ANGEL PETERSON, 

 Plaintiff, Civil Action No.: 14-13000 

 Honorable Thomas L. Ludington 

v. Magistrate Judge Elizabeth A. Stafford 

 

ROCKY BURRIS, et al., 

 

 Defendants. 

__________________________________/ 

ORDER DENYING REHEARING FOR CLERK’S DENIAL 

OF REQUESTS FOR ENTRY OF DEFAULT [30] 

 On July 31, 2014, plaintiff Angel Peterson filed a complaint in this 

Court alleging violations of her constitutional rights under 42 U.S.C. §1983. 

[1]. Summons were issued for Defendants and provided to Peterson to 

serve. [9, 10, 11, 12]. Peterson filed certificates of service for the all 

defendants, showing that she served each by certified mail. [18, 19, 20]. 

Although some of the certificates appear to be incomplete, on December 4, 

2014, all Defendants appeared and moved to dismiss Peterson’s 

complaint. [22]. 

 Thereafter, Peterson requested a Clerk’s entry of default against 

Defendants, arguing that, based on the date of service, Defendants’ 

responsive pleadings were filed three days after they were due. [25, 27 & 

28]. The Clerk’s office denied the request, noting that Defendants had filed 

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a dispositive motion. [26]. Peterson filed the instant motion for rehearing 

regarding the Clerk’s office denial of her request for an entry of default. 

[30]. 

 Federal Rule of Civil Procedure 55 governs entry of default and 

default judgment. Rule 55(a) states that “[w]hen a party against whom a 

judgment for affirmative relief is sought has failed to plead or otherwise 

defend, and that failure is shown by affidavit or otherwise, the clerk must 

enter the party’s default.” Peterson argues that the Clerk should have 

entered default against Defendants when they did not answer within the 

timeframe specified by Rule 4 for filing of a responsive pleading. While a 

former version of Rule 55 held that default should be entered if the party in 

question failed to plead or otherwise defend “as provided by these rules,” 

that language was eliminated in 2007, because “[c]ourts have rejected” the 

implication that “the clerk should enter a default even if a party did 

something showing an intent to defend, but that act was not specifically 

described by the rules.” Fed. R. Civ. P. 55 advisory committee’s note to 

2007 amendments. Since Defendants filed a motion to dismiss, 

demonstrating their intent to defend this action, the Clerk did not err in 

refusing to enter a default against them. See e.g. Goodrick v. Anderson, 

No. cv-9-17, 2009 U.S. Dist. LEXIS 110368, at *4-5, 2009 WL 4548984 (D. 

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Idaho Nov. 27, 2009) (declining to enter default against defendant who filed 

responsive pleading four days late); Buzayan v. City of Davis, No. 06-1576, 

2009 U.S. Dist. LEXIS 15217, at *12 n.7, 2009 WL 514201 (E.D. Cal. Feb. 

26, 2009) 

 Even if default were appropriate due to Defendants’ tardiness, the 

Court would deny any motion for default judgment on these facts. The 

Sixth Circuit has outlined seven factors to consider when deciding whether 

to enter a default judgment against a party: “1) possible prejudice to the 

plaintiff; 2) the merits of the claims; 3) the sufficiency of the complaint; 4) 

the amount of money at stake; 5) possible disputed material facts; 6) 

whether the default was due to excusable neglect; and 7) the preference 

for decisions on the merits.” Russell v. City of Farmington Hills, 34 Fed. 

Appx. 196 (6th Cir. 2002) (citing Eitel v. McCool, 782 F.2d 1470, 1471-1472 

(9th Cir. Wash. 1986)). Here, Peterson has identified no prejudice from the 

three day delay in Defendants’ responsive pleading; indeed she has 

continued to adequately litigate this case despite that delay. Furthermore, 

Defendants’ motion to dismiss [22] is not frivolous; at the very least, there 

are disputed issues of material fact. Finally, there is a strong preference in 

this Court for decisions to be made on their merits, rather than resolved on 

a procedural technicality. See United States v. $ 22,050.00 United States 

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Currency, 595 F.3d 318, 324 (6th Cir. Tenn. 2010), Therefore, even if the 

Court determined that Defendants’ delay was not due to some excusable 

neglect, the remaining factors weigh heavily against entry of default 

judgment. As a result, Peterson’s motion for rehearing [30] is DENIED. 

Dated: March 31, 2015 s/Elizabeth A. Stafford 

Detroit, Michigan ELIZABETH A. STAFFORD 

 United States Magistrate Judge 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on March 31, 2015. 

 s/Marlena Williams 

 MARLENA WILLIAMS 

 Case Manager 

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