Lopez v. Kink ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS BENIGNO LOPEZ, #M51416, ) ) Plaintiff, ) ) vs. ) Case No. 19-cv-00378-SMY ) KEVIN KINK, J. GARRETT, ) MS. BROOKS, and AMY BURLE, ) ) Defendants. ) ORDER YANDLE, District Judge: This matter is before the Court on a Motion to Set Aside Clerk’s Default and for Time to Answer filed by Defendant Christine Brooks. (Doc. 32). The Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A on June 17, 2019 (“Screening Order”). Pursuant to the Screening Order, Brooks was sent requests for Waiver of Service of Summons on June 17, 2019 and July 25, 2019; she executed and returned a Waiver of Service on July 25, 2019 (Docs. 13, 20, 21). Thus, her responsive pleading was due on September 23, 2019. Brooks failed to move, answer, or otherwise plead in response to the Complaint. As a result, on December 9, 2019, the Court issued an Order directing the Clerk to Enter Default against Brooks in accordance with Federal Rule of Civil Procedure 55(a). (Doc. 24). The Clerk’s Entry of Default was docketed on December 10, 2019. (Doc. 25). “A party seeking to vacate an entry of default prior to the entry of judgment must show: (1) good cause for the default; (2) quick action to correct it; and (3) a meritorious defense to the complaint.” Cracco v. Vitran Express, Inc., 559 F.3d 625, 630–31 (7th Cir.2009) (citations omitted); FED. R. CIV. P. 55(c). Here, Brooks has demonstrated that the failure to respond to the waiver of service was inadvertent. She also acted quickly to correct the entry of default in that she filed the motion to set aside the entry of default shortly after the Clerk’s Entry was docketed. Finally, Brooks has sufficiently established that she has a meritorious defense to Plaintiff’s claim of deliberate indifference to Plaintiff’s medical condition. Upon the showing of good cause and based on this Court’s preference for adjudication on the merits, Defendant Brooks’s Motion is GRANTED. The Clerk’s Entry of Default is VACATED; Defendant Brooks shall file her responsive pleading no later than March 18, 2020. IT IS SO ORDERED. DATED: March 11, 2020 s/ Staci M. Yandle_____ STACI M. YANDLE United States District Judge