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    MCCLESKY Et Al v. CLASSIC CONCRETE - Document No. 23

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    ORDER granting 18 Motion to Set Aside Default . Signed by Judge Richard L. Young on 1/5/05. (CLL, ) 1:2004cv01909 Indiana Southern District Court

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    MCCLESKY Et Al v. CLASSIC CONCRETE - Document No. 23

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    ORDER granting 18 Motion to Set Aside Default . Signed by Judge Richard L. Young on 1/5/05. (CLL, ) 1:2004cv01909 Indiana Southern District Court

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    MCCLESKY et al v. CLASSIC CONCRETE - Document No. 23

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    ORDER granting 18 Motion to Set Aside Default . Signed by Judge Richard L. Young on 1/5/05. (CLL, ) 1:2004cv01909 Indiana Southern District Court

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    97 views3 pages

    MCCLESKY Et Al v. CLASSIC CONCRETE - Document No. 23

    Uploaded by

    Justia.com
    ORDER granting 18 Motion to Set Aside Default . Signed by Judge Richard L. Young on 1/5/05. (CLL, ) 1:2004cv01909 Indiana Southern District Court

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 3

    MCCLESKY et al v. CLASSIC CONCRETE Doc.

    23
    Case 1:04-cv-01909-RLY-WTL Document 23 Filed 01/05/2006 Page 1 of 3

    UNITED STATES DISTRICT COURT


    SOUTHERN DISTRICT OF INDIANA
    INDIANAPOLIS DIVISION

    MARK MCCLESKY, TRUSTEE AND )


    INDIANA STATE COUNCIL OF )
    PLASTERERS AND CEMENT MASONS )
    HEALTH AND WELFARE AND PENSION )
    FUNDS, )
    Plaintiff, )
    )
    vs. ) 1:04-cv-1909-RLY-WTL
    )
    CLASSIC CONCRETE, LLC, )
    Defendant. )

    ORDER SETTING ASIDE DEFAULT JUDGMENT


    AND SETTING MATTER FOR STATUS CONFERENCE

    This matter is before the court on Defendant’s Motion to Set Aside Entry and

    Judgment by Default. A default judgment was entered by this court on October 12, 2005,

    after Defendant failed to plead in response to Plaintiffs’ Complaint. However, counsel

    for Plaintiff and a representative of Defendant, who was not admitted to the bar of this

    court, had met with the Magistrate Judge twice before the default was entered (once in

    person and once by telephone) to discuss the status of the lawsuit and potential

    settlement. The Defendant indicating during those conferences that it did owe Plaintiffs

    contributions as asserted in the Complaint, but was in the process of making payments to

    Plaintiffs in an effort to resolve the dispute and eliminate the debt. Defendant also

    indicated it was seeking legal counsel authorized to practice before this court to assist it.

    In fact, local counsel filed an appearance on the same date that the default judgment was

    -1-

    Dockets.Justia.com
    Case 1:04-cv-01909-RLY-WTL Document 23 Filed 01/05/2006 Page 2 of 3

    entered, and filed the motion to set the judgment aside the very next day.

    It appears from the pleadings and attached submissions that Defendant does not

    owe Plaintiffs the entire amount of the judgment that was entered and that, for some

    unknown reason, the amount sought in the application for judgment did not take into

    account the payments that had recently been made by the Defendant. It also appears that

    Defendant had some reason to believe that its ongoing periodic payment to Defendant

    was sufficient to keep it from being defaulted prior to obtaining local counsel.

    Consequently, this court finds that: 1) good cause existed for Defendant’s default; 2)

    Defendant took quick action to correct the default; and, 3) a meritorious defense to the

    amount of money said to be owed does exist. See Jones v. Phipps, 39 F.3d 158, 162 (7th

    Cir. 1994). Accordingly, the judgment in this case (Docket #17) is SET ASIDE.

    This matter is set for a status conference before Magistrate Judge William T.

    Lawrence in Room 277, Birch Bayh Federal Building and U.S. Courthouse, 46 E. Ohio

    Street, Indianapolis, Indiana, at 9:00 a.m. on February 3, 2006.

    SO ORDERED this 5th day of January 2006.

    _______________________________
    ________________________________
    RICHARD L. YOUNG,
    RICHARD JUDGE
    L. YOUNG, JUDGE
    UnitedUnited
    StatesStates District
    District CourtCourt
    Southern District of Indiana
    Southern District of Indiana

    -2-
    Case 1:04-cv-01909-RLY-WTL Document 23 Filed 01/05/2006 Page 3 of 3

    Electronic Copies to :

    James R. A. Dawson
    SOMMER BARNARD ATTORNEYS, PC
    [email protected]

    Donald D. Schwartz
    ARNOLD & KADJAN
    [email protected]

    -3-

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