UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GREGORY HOXIE,

Plaintiff,

Case No. 09-CV-10725 

vs. HON. GEORGE CARAM STEEH

LIVINGSTON COUNTY, et al.,

Defendants.

_____________________________/

ORDER GRANTING DEFENDANT SIMPSON'S MOTION TO

SET ASIDE DEFAULT (# 33)

Defendant D.O. Sheryl Simpson moves to set aside the clerk's September 17, 2009

entry of her default. Oral argument would not significantly aid the decisional process.

Pursuant to E.D. Mich. Local R. 7.1(e)(2), it is ORDERED that the motion be resolved

without oral argument.

Plaintiff Gregory Hoxie filed a July 31, 2009 Amended Complaint, first naming

Simpson as a party-defendant in this 42 U.S.C. § 1983 action alleging inter alia that the

defendants, including Simpson, were deliberately indifferent to his need for medical

treatment while incarcerated within the Livingston County Jail. Hoxie filed a request for

entry of Simpson's default on September 16, 2009 attesting that Simpson was served with

the summons and complaint on August 24, 2009, and had not filed an answer within 20

days, or by September 14, 2009. The clerk filed Simpson's default on September 17, 2009.

Three days later, on September 18, 2009, Simpson filed the instant motion to set

aside the default, attesting that she never received a copy of the Amended Complaint or

a summons, but instead received only a copy of the original February 26, 2009 Complaint

from a Livingston County Sheriff's Lieutenant during the week of August 31, 2009 when she

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went to the Jail as part of her two-day work schedule. Simpson argues that she has a

meritorious statute of limitations defense. 

An entry of default may be set aside upon "good cause shown." Fed. R. Civ. P.

55(c). In exercising its discretion in deciding whether to set aside a default, a district court

should consider: (1) whether the default was willful; (2) whether the plaintiff will be

prejudiced; and (3) whether the defendant has a meritorious defense. United Coin Meter

Co. Inc. v. Seaboard Coastline Railroad, 705 F.2d 839, 844 (6th Cir. 1983). There is an

"overriding policy disfavoring defaults." See Savin Corporation v. C.M.C. Corporation, 98

F.R.D. 509, 512 (N. D. Ohio 1983).

Consistent with Simpson's attestations that she received only a copy of the original

Complaint, and process server Frederick Bishop's attestation that he "served Supervisor

Under Sheriff Mike Murphy" on August 24, 2009, Simpson's default for failing to file an

answer to the July 31, 2009 Amended Complaint could not, by any means, be considered

willful. Hoxie admits that he will not be prejudiced if the default is set aside. Simpson has

proffered a meritorious defense. Accordingly, 

Defendant Simpson's motion to set aside default is hereby GRANTED. Defendant

Simpson's September 17, 2009 default (# 31) is hereby SET ASIDE. The court declines

Hoxie's request that the court order Simpson to file an answer within 20 days of this order

because the court is not persuaded that Simpson has yet been properly served.

SO ORDERED.

Dated: October 8, 2008

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

October 8, 2009, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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