Opinion
A proposed agreed order setting aside entry of defendant's default was tendered by parties. The District Court, Neese, J., held that default judgment entered against defendant was not subject to being set aside without a formal motion from defendant on mere agreement of parties to set aside entry of default.
Order accordingly.
Edward R. Sempkowski, Charles R. Terry & Associates, Morristown, Tenn., for plaintiff.
John F. Dugger, Bacon, Dugger & Jessee, Morristown, Tenn., for defendant.
MEMORANDUM OPINION
NEESE, District Judge.
The parties tendered to the Court a proposed agreed order setting-aside the entry of the defendant's default herein of April 6, 1979. Good cause for setting-aside such default not having been shown, the Court declines to enter said order.
This Court is authorized to set aside the entry of a default " * * * (f)orgood cause shown * * *." Rule 55(c), Federal Rules of Civil Procedure. While this Court construes Rule 55(c), Supra, liberally to provide relief from the onerous consequences of a default, Johnson v. Harper, D.C.Tenn. (1975), 66 F.R.D. 103, 104, there must be a sufficient showing of good cause before a default will be set aside, see Kennerly v. ARO, Inc., D.C.Tenn. (1977), 447 F.Supp. 1083, 1086-1089.
Although the parties may stipulate as to certain factual matters relating to the issue of good cause, the Court is not aware of any authority it has to set-aside a default merely by agreement of the parties. Even where a default has not been formally entered by the clerk, a defaulting defendant is required to apply to the court for relief on a showing of good cause before it is permitted to file an answer. 6 Moore's Federal Practice (2d ed.) 55-231, P 55.10(1); 10 Wright & Miller, Federal Practice and Procedure: Civil 297-298, s 2692.
The setting-aside of a default is a matter committed to the sound discretion of the trial judge. Smith v. Kincaid, C.A. 6th (1957), 249 F.2d 243, 245(3). In exercising this discretion, it is necessary for the Court to balance what are at times conflicting policy-goals: the need for prompt and efficient handling of litigation in the federal courts by sound application of the Rules of Civil Procedure, and the attainment of a just resolution of the particular dispute before the court. 6 Moore's Federal Practice, Supra, at 55-251-2, P 55.10(4).
Where a default is sought to be set aside, the party in default " * * * should make a formal motion * * *." Ibid., at 55-232, P 55.10(1). And, as was stated by a panel, upon which sat the late Judge Learned Hand, even where it is the plaintiff who seeks to set aside the defendant's default, " * * * whoever makes the motion must show an adequate basis for it. * * * " Ferraro v. Arthur M. Rosenberg Co., C.C.A.2d (1946), 156 F.2d 212, 214(2).