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TRESSLER v. BOROUGH OF RED LION

June 1, 1988

James R. Tressler, Plaintiff
v.
The Borough of Red Lion and Raymond E. Arnold, Jr., in his individual and official capacity as Borough Manager of Red Lion, Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 I. Introduction.

 Defendants, The Borough of Red Lion and its manager, Raymond E. Arnold, have moved to vacate the default which was entered against them on April 6, 1988. They have also filed a motion to dismiss, or in the alternative, for summary judgment.

 II. Background.

 Plaintiff, James R. Tressler, filed his complaint on February 25, 1988. Count I sets forth a 42 U.S.C. § 1983 claim based upon defendants' violation of plaintiff's due process rights in connection with the determination of his disability status as a police officer with the Borough. Count II contains a pendent state law claim for intentional infliction of emotional distress. Defendants were served with process on March 2, 1988 but failed to answer the complaint within twenty days as required by Fed. R. Civ. P.12(a). Approximately two weeks after the time period for responding expired, plaintiff requested that a default be entered and the clerk did so on April 6, 1988. Immediately thereafter, plaintiff moved for a default judgment but, while this motion was pending, defendants filed their answer to the complaint and their motion to vacate the default.

 Defendants assert that the default should be vacated because "the press of business" in this and other matters prevented the filing of a timely answer and that plaintiff would not be prejudiced by granting the motion. While defendants make no reference to the case law under Fed. R. Civ. P. 55(c), dealing with motions to set aside a default, it nevertheless appears that the motion can be granted in part under the governing law. Rule 55(c) provides, in pertinent part, that "for good cause shown the court may set aside an entry of default . . . ." (brackets added). In Quaker Valley School District v. Employers Mutual Liability Insurance Co., 96 F.R.D. 423 (W.D. Pa. 1983), Judge Mansmann, then a district court judge, summarized the guiding considerations as follows:

 
Defaults are not favored and any doubts should be resolved in favor of setting aside the default and obtaining a decision on the merits. See Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir., 1982).
 
Less substantial grounds may be sufficient to set aside a default than are required to open a default judgment. Feliciano v. Reliant Tooling Co., 691 F.2d 653, 656 (3d Cir., 1982). "Thus, '(a)ny of the reasons sufficient to justify the vacation of a default judgment under Rule 60(b) normally will justify relief from a default entry and in various situations a default entry may be set aside for reasons that would not be enough to open a default judgment.'" Id. quoting 10 C. Wright & A. Miller, Federal Practice and Procedure § 2696 at 334 (1973).
 
Three factors relevant to the Court's exercise of discretion under Rule 55(c) are: (1) whether the Plaintiff will be prejudiced if the entry of default is set aside, (2) whether the Defendant has asserted a meritorious defense to the claim, and (3) whether culpable conduct on the part of the Defendant led to the default.

 Id. at 424.

 We do not believe that plaintiff will be prejudiced by setting aside the default. Postponement of satisfaction on the claim does not establish the requisite prejudice and no other prejudice has been advanced. There has also been no culpable conduct on the part of the defendants. There has only been an admission on the part of defense counsel of some inadvertence or negligence which does not rise to the level of wilfulness or bad faith required for a finding of culpability. See Farnese v. Bagnasco, 687 F.2d 761 (3d Cir. 1982).

 The motion must fail, however, as to Count I of the complaint, because defendants have not asserted a meritorious defense, the "critical issue" in disposing of the motion. See United States v. $ 55,518.05 In U. S. Currency, 728 F.2d 192, 195 (3d Cir. 1984) ("This is the critical issue because without a meritorious defense [defendant] could not win at trial. Therefore, there would be no point in setting aside the ...


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