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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KHETAM NIMER, an individual,

and MONA HAMED, an individual,

Plaintiffs,

Case No. 14-13689

v.

HON. GEORGE CARAM STEEH

ADAM TOURS OF NEW YORK, INC.,

a corporation,

Defendant.

_______________________________/ 

ORDER DENYING MOTION FOR DEFAULT

JUDGMENT (ECF No. 42) AND SETTING ASIDE DEFAULT

For the second time, Plaintiffs have moved for the entry of a default 

judgment. The court granted Plaintiffs’ first motion for default judgment in 

2015. On February 28, 2019, the court vacated the default judgment after 

determining that Defendant had not been properly served with process. 

ECF No. 25. Plaintiffs assert that they re-served the summons and 

complaint on September 13, 2019. ECF No. 38-1. After Defendant failed to 

respond, Plaintiffs obtained a clerk’s entry of default on May 7, 2020. 

Plaintiffs filed a motion for default judgment on May 14, 2020.

On August 2, 2020, Defendant responded to the motion for default 

judgment, requesting that the default be set aside and that it be permitted 

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to defend the case on the merits.1 Pursuant to Federal Rule of Civil 

Procedure 55(c), it is within the court’s discretion to set aside an entry of 

default “for good cause.” Id. The court considers whether “(1) the default 

was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged 

defense was meritorious.” United Coin Meter Co. v. Seaboard Coastline 

RR, 705 F.2d 839, 844 (6th Cir. 1983) (citation omitted). “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). “In general, our cases discussing 

motions to set aside default under Rule 55(c) are extremely forgiving to the 

defaulted party and favor a policy of resolving cases on the merits instead 

of on the basis of procedural missteps.” Id. at 322.

Defendant alleges that it has a meritorious defense: that Plaintiffs’ 

claims are barred by the statute of limitations. Defendant has satisfied this 

1 Although Defendant has not filed a motion to set aside the default, an 

“opposition to a motion for default may be treated as a motion to set aside entry of 

default.” United Coin Meter Co. v. Seaboard Coastline RR, 705 F.2d 839, 844 (6th Cir. 

1983).

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requirement by articulating a defense that is “‘good at law,’ regardless of 

whether the defense is actually likely to succeed on the merits.” Id. at 326.

Plaintiffs contend that are likely to be prejudiced by having to proceed 

on the merits and take discovery, six years after their complaint was initially 

filed. Much of this delay, however, is attributable to Plaintiffs’ initial failure to 

properly serve the summons and complaint and subsequent lack of 

diligence in prosecuting this case. See ECF Nos. 25, 26, 31, 34. Once the 

first default judgment was vacated, Plaintiffs waited six months to serve the 

complaint, and several more months to seek a clerk’s entry of default. In 

light of this procedural history, the court is hard pressed to find that 

Plaintiffs would be prejudiced by setting aside the entry of default.

As for the culpability of Defendant, the record does not reflect a 

“willful” failure to appear. Defendant asserts that it was not properly served 

with the summons and complaint. The affidavit of the process server 

indicates that a “John Doe” was personally served at Defendant’s business 

address. ECF No. 38-1. Because the name and title of the person 

accepting service have not been provided, the court is unable to discern 

whether service was proper. See Fed. R. Civ. P. 4(h); M.C.R. 2.105(D). 

Although Plaintiffs suggest that Defendant “hid” from this suit, they provide 

no evidence that Defendant has attempted to evade service. Because it is 

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unclear whether service was proper, the court cannot conclude that 

Defendant’s failure to respond to the complaint was willful.2 See O.J.

Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 353-55 (6th Cir. 2003)

(“[I]f service of process was not proper, the court must set aside an entry of 

default,” without considering the three United Coin Meter factors).

Weighing the United Coin Meter factors, the court finds that 

Defendant has established good cause to set aside the default pursuant to 

Rule 55(c). Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ motion 

for default judgment (ECF No. 42) is DENIED and the clerk’s entry of 

default (ECF No. 41) is SET ASIDE. 

Dated: October 19, 2020

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

2 The record does not reflect whether Plaintiffs sought a waiver of service under 

Rule 4(d), which provides that “[a]n individual, corporation, or association that is subject 

to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of

serving the summons.”

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

October 19, 2020, by electronic and/or ordinary mail,

s/Brianna Sauve

Deputy Clerk

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