IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
May 30, 2007
GREGORY WOODS, PLAINTIFF
CAPT. CHIARELLI, ET AL., DEFENDANTS
The opinion of the court was delivered by: Judge Conner
AND NOW, this 30th day of May, 2007, upon consideration of plaintiff's motion for a default judgment (Doc. 18) pursuant to FED. R. CIV. P. 55 (a) (when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . and, that fact is made to appear by affidavit or otherwise, judgment by default may be entered), and it appearing that defendants failed to timely plead or otherwise defend the complaint*fn1 , and it further appearing that counsel's error in failing to file a timely answer minimally delayed the progression of the litigation, Feliciano v. Reliant Tooling Co., 691 F.2d 653, 656-57 (3d Cir. 1982), and that based upon a review of the answer (Doc. 27), there is no question that defendants have a valid defense to the case, Hritz v. Woma, 732 F.2d 1178, 1181 (3d Cir. 1984) and that there is nothing in the record that would indicate that the failure to timely respond went beyond mere negligence, rising to the level of "flagrant bad faith" or "contumacious behavior" See Emasco Ins. Co. v. Sambrick, 834 F.2d 71, 75 (3d Cir. 1987); Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984), and it further appearing that the Third Circuit has "repeatedly stated [their] preference that cases be disposed of on the merits whenever practicable." Jorden v. Nat'l Guard Bureau, 877 F.2d 245, 251 (3d Cir. 1989)(citations omitted) it is hereby ORDERED that plaintiff's motion for default judgment (Doc. 18) is DENIED.
CHRISTOPHER C. CONNER United States District Judge