SWANER v. BARBIERI, No. 1:2010cv00928 - Document 28 (S.D. Ind. 2011)
Court Description: ENTRY granting Defendant's 14 Motion to Set Aside Default Judgment. Signed by Judge Richard L. Young on 5/13/2011. (PG)
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SWANER v. BARBIERI Doc. 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION GENE SWANER, Plaintiff, vs. GEOFFREY W. BARBIERI, Individually and in his official capacity as a Police Officer of the Indianapolis Metropolitan Police Department, Defendant. ) ) ) ) ) ) ) ) ) ) 1:10-cv-928-RLY-DML ENTRY ON DEFENDANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT On May 6, 2010, the court held a hearing on Geoffrey W. Barbieri’s (“Officer Barbieri”) Motion to Set Aside Default Judgment. Officer Barbieri contends that Gene Swaner (“Plaintiff”) did not properly effectuate service, which resulted in Officer Barbieri not having knowledge of the instant suit until after default judgment was entered against him. However, the court need not reach the issue of whether service was proper because a procedural error exists, which justifies setting aside the Entry of Default Judgment. On July 21, 2010, Plaintiff sent a copy of the Complaint and summons by certified mail to Officer Barbieri at his place of employment, the Indianapolis Metropolitan Police Department. On August 18, 2010, having received no response from Officer Barbieri, 1 Dockets.Justia.com Plaintiff filed an Application for Default Judgment. On December 21, 2010, the court entered Default Judgment against Officer Barbieri, awarding Plaintiff damages totaling $63,337.57. However, Plaintiff’s Application for Default Judgment failed to follow the explicit procedural requirements of Federal Rule of Civil Procedure 55. “Rule 55 sets forth a two-step process for a party seeking default judgment. A plaintiff must first obtain an entry of default from the clerk of the court, and then she may seek an entry of default judgment.” Peak v. District of Columbia, 236 F.R.D. 13, 15 (D.D.C. 2006); FED. R. CIV. P. 55. By failing to first seek an entry of default, Plaintiff has failed to accomplish the necessary predicate to a grant of default judgment against Officer Barbieri. See id. Thus, the Clerk’s issuance of Default Judgment against Officer Barbieri prior to issuing an entry of default was improper, and must now be remedied. Moreover, the Seventh Circuit maintains a strong policy of favoring trials on the merits over a default judgment. Agstar Fin. Servs., PCA v. Union Go-Dairy, LLC, 2011 WL 772754, at*1 (S.D. Ind. Feb. 25, 2011) (citing Security Ins. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995)). Therefore, Officer Barbieri’s Motion to Set Aside Default Judgment (Docket # 14) is GRANTED. The Clerk is directed to reopen this case forthwith. Furthermore, Officer 2 Barbieri is instructed to file an Answer to Plaintiff’s Complaint within ten (10) days of the date of this entry. SO ORDERED this 13th day of May 2011. __________________________________ RICHARD L. YOUNG, CHIEF JUDGE United States District Court RICHARD L. YOUNG, CHIEF JUDGE Southern District of Indiana United States District Court Southern District of Indiana Electronic Copies To: Lawrence M. Reuben Law Offices of Lawrence M. Reuben 136 East Market Street Suite 200 Indianapolis, IN 46204 (317) 634-2200 Fax: (317) 634-2776 Email: reuben@reubenlaw.net Alexander Phillip Will OFFICE OF CORPORATION COUNSEL CITY OF INDIANAPOLIS 200 E. Washington Street Suite 1601 Indianapolis, IN 46204 (317) 327-4055 Fax: (317) 327-3968 Email: awill@indygov.org 3 Andrew R. Duncan RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK 107 N. Pennsylvania Street Suite 900 Indianapolis, IN 46204 (317) 634-4356 Fax: (317) 634-8635 Email: ard@rucklaw.com Edward J. Merchant RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK 107 N. Pennsylvania Street Suite 900 Indianapolis, IN 46204 (317) 634-4356 Fax: (317) 634-8635 Email: ejm@rucklaw.com Gregory R. Clark CITY OF INDIANAPOLIS, CORPORATION COUNSEL 200 E. Washington Street 1601 City-County Building Indianapolis, IN 46204 317-327-4055 Fax: 317-327-3968 Email: grclark@indy.gov Jennifer Lynn Haley CITY OF INDIANAPOLIS, CORPORATION COUNSEL 200 E. Washington Street 1601 City-County Building Indianapolis, IN 46204 (317) 327-5432 Fax: (317) 327-3968 Email: jhaley@indy.gov 4 John F. Kautzman RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK 107 North Pennsylvania Street Suite 900 Indianapolis, IN 46204 (317)6 34-4356 Fax: (317) 634-8635 Email: jfk@rucklaw.com 5
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