UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TRUSTEES OF MICHIGAN BRICKLAYERS 

AND ALLIED CRAFTWORKERS HEALTH 

CARE FUND, TRUSTEES OF MICHIGAN 

BRICKLAYERS AND ALLIED CRAFTWORKERS 

PENSION FUND, TRUSTEES OF MICHIGAN Case No. 09-10980 

BRICKLAYERS AND ALLIED CRAFTWORKERS Hon. David M. Lawson

APPRENTICESHIP AND TRAINING FUND, 

TRUSTEES OF BRICKLAYERS AND TROWEL 

TRADES INTERNATIONAL PENSION FUND, 

TRUSTEES OF INTERNATIONAL MASONRY 

INSTITUTE, INTERNATIONAL UNION OF 

BRICKLAYERS AND ALLIED CRAFTWORKERS,

AFL-CIO, and INTERNATIONAL UNION OF

BRICKLAYERS AND ALLIED CRAFTWORKERS,

LOCAL 9, AFL-CIO,

Plaintiffs,

v.

ORLANDO & SONS, INC.,

Defendant.

_______________________________________/

ORDER GRANTING THE PLAINTIFFS’ MOTION TO STRIKE THE DEFENDANT’S

ANSWER TO THE COMPLAINT AND STRIKING THE DEFENDANT’S ANSWER

The matter is before the Court on the plaintiffs’ motion to strike the defendant’s answer to

the complaint that was filed following the entry of default by the Clerk of the Court. The plaintiffs

filed this action under sections 502 and 515 of the Employee Retirement Income Security Act and

section 301(a) of the Labor Management Relations Act against the defendant on March 17, 2009.

The defendant failed to answer to the complaint within the time allowed by the Federal Rules of

Civil Procedure, and the Clerk entered default on April 29, 2009. The parties stipulated to set the

default aside, and the Court ordered on May 14, 2009 that the defendant respond to the complaint

on or before May 28, 2009. The defendant failed to do so, and the Clerk again entered a default on

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June 4, 2009. A party as to whom a default has been filed may not file a responsive pleading until

the default is set aside. Cf. Morgan v. Gandalf, Ltd., 165 F. App’x 425, 428 (6th Cir. Jan. 31, 2006)

(noting that a party must obtain permission before filing a tardy answer). The defendant represented

to the Court on June 11, 2009 it had secured another stipulation from the plaintiffs to set the default

aside, but the plaintiffs vehemently dispute that representation. In their motion to strike the

defendant’s answer to the complaint filed on June 11, 2009, the plaintiffs claim that they have never

stipulated to set aside the most recent default and the defendant’s answer therefore should be

stricken. Because there has been no agreement to set aside the latest default, and the defendant has

not moved to set it aside, the defendant may not file its answer. The Court finds the plaintiffs’

position reasonable, and will strike the defendant’s answer filed after the Clerk’s entry of default.

Accordingly, it is ORDERED that the plaintiffs’ motion to strike the defendant’s answer to

the complaint [dkt. # 16] is GRANTED. 

It is further ORDERED that the defendant’s answer to the complaint [dkt. # 12] is

STRICKEN.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: August 10, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 10, 2009.

s/Lisa M. Ware 

LISA M. WARE

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