IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
This matter is before the Court on the defendant\u2019s Motion to Set Aside Default
Judgment[# 1 6 ]. The Court having reviewed the motion, the response, the briefs of
counsel for the parties, the pleadings and exhibits on file, the authorities cited and being
otherwise fully advised in the premises, finds that the motion is well taken and should
be granted. The court finds specifically as follows;
The plaintiff filed his original Complaint on January 4, 2007, for personal injuries
arising out of an incident which occurred on the defendant\u2019s premises in Columbia,
Mississippi. The Complaint was served on the defendant by service on CT Corporation
System on January 31, 2007, making the defendant\u2019s Answer due February 20, 2007,
pursuant to Rule 12, Federal Rules of Civil Procedure. When the defendant failed to
timely respond, the plaintiff filed a Motion for Default on February 27, 2007. A Clerk\u2019s
Entry of Default was entered on March 5, 2007, and on March 12, 2007, the plaintiff
The court entered a Default Judgment against the defendant on March 16, 2007.
On March 28, the court conducted a hearing on damages and entered an order on
damages on April 6, 2007. On April 10, 2007, the court entered a final judgment in the
amount of $629, 444.35 against the defendant. The plaintiff forwarded the judgment to
the defendant on July 3, 2007, and it was received on July 5. The next day, on July 6,
the defendant filed an Emergency Motion for Stay of Judgment[# 1 5 ]. On July 13, the
defendant filed the instant Motion to Set Aside Default Judgment.
The Default Judgment which was entered on April 10, 2007, is a Final Judgment
as between the plaintiff and the defendant. The defendant had thirty days from that
date to attack this judgment by filing a Notice of Appeal. Fed.R.App.P., Rule 4(a). This
was not done. The question that now confronts this court is whether or not this Default
Judgment may be collaterally attacked.
The defendant has moved to set aside the Default Judgment under Rule 55(c) pursuant to the procedure set forth in Rule 60(b), Fed.R.Civ.P. The provisions of Rule 60(b) relied on by the defendant provide:
On motion and upon terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, order, or proceeding for
the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; . . . (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; . . .
(5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated,
or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the operation of
The Fifth Circuit has set forth three factors for the court to consider in
determining whether sufficient grounds exist for setting aside a default judgment under
Rule 60(b): (1) the extent of prejudice to the plaintiff; (2) the merits of the defendant\u2019s
asserted defense; and (3) the culpability of the defendant\u2019s conduct.\u201dId. at 938.
However, \u201c[t]hese factors are not \u2018talismanic.\u2019See CJC Holdings, Inc. v. Wright & Lato,
The defendant admits Weary properly served its registered agent, CT
Corporation System (\u201cCT\u201d), with the Summons and Complaint in this case on January
31, 2007. The defendant also admits that on February 1, 2007, it receivedvia FedEx
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