UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

John Seldon

v. Civil No. 06-cv-239-JD

Sky Meadow County Club, Inc.

O R D E R

John Seldon brought suit in state court against his former

employer, Sky Meadow Country Club, Inc., alleging federal claims

of employment discrimination and a state law claim of wrongful

termination. Sky Meadow removed the action to this court on June

29, 2006. When Sky Meadow failed to respond within the time

allowed under Federal Rule of Civil Procedure 12, the Clerk of

Court entered a default. Sky Meadow then moved to have the entry

of default set aside, and Seldon objected. Sky Meadow filed an

answer on August 11, 2006.

“For good cause shown, the court may set aside an entry of

default . . . .” Fed. R. Civ. P. 55(c). The good cause standard

in this context is liberally construed. Venegas-Hernandez v.

Sonolux Records, 370 F.3d 183, 187 (1st Cir. 2004). The relevant

factors for the court to consider in determining whether good

cause has been shown are “whether (1) the default was willful,

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

defense was meritorious.” United States v. $23,000 in U.S.

Currency, 356 F.3d 157, 164 (1st Cir. 2004).

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In its motion to set aside the entry of default, Sky Meadow

states that its counsel inadvertently failed to file an answer

within the time allowed (1) because he was focusing on the

removal process, (2) because counsel was mistaken about the

deadline for filing an answer, (3) because lead counsel was away

on vacation and had other commitments, and (4) because Sky Meadow

was too busy operating the country club to assist in preparing an

answer. As Seldon points out, however, Sky Meadow failed to

submit any affidavit or other evidentiary support for those

statements. See LR 7.1(a)(2). Seldon submitted his counsel’s

affidavit and supporting documents that tend to raise questions

as to some of the reasons given by Sky Meadow for its delay in

filing a response.

Because Sky Meadow did not submit a properly supported

motion to set aside the entry of default, it has not shown good

cause to do so. Certain facts, however, are apparent from the

docket and the materials submitted by Seldon. Sky Meadow is

represented by Alfred A. Gray, Jr., who is a partner at the law

firm of Bowdich & Dewey, LLP, in Boston, Massachusetts, and is

appearing in this case pro hac vice, and James A. Callahan, of

Brighton, Runyon & Callahan, P.A., in Peterborough, New

Hampshire. Gray apparently left for vacation before Sky Meadow’s

response was due on July 19 without making arrangements with

anyone in his firm or with Callahan to cover for him in this

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case. In addition, at least some of the reasons given by Sky

Meadow to excuse its failure to comply with Rule 12 raise

concerns as to whether Sky Meadow and its counsel appreciate the

seriousness of the allegations that have been made here and their

obligation to comply with the federal and local rules in this

action.

Conclusion

For the foregoing reasons, the defendant’s motion to set

aside the entry of default (document no. 7) is denied without

prejudice to file a properly supported motion for the same

relief.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 24, 2006

cc: James M. Callahan, Esquire

Alfred A. Gray, Jr., Esquire

Nancy Richards-Stower, Esquire

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