JAMES H. MICHAEL, Senior United States District Judge.
By order dated January 7, 2000, this case was referred to the Honorable B. Waugh Crigler, United States Magistrate Judge, for proposed findings of fact and a recommended disposition concerning defendant Robert Tapper's December 15, 1999 Motion to
Set Aside Entry of Default. The Magistrate Judge filed his report on May 8, 2000, and recommended that the defendant's motion be denied. Having thoroughly considered the issue, the court agrees with the Magistrate Judge's recommendation and will deny the defendant's motion.
I.
On June 10, 1998, the plaintiff was operating a tractor-trailer on Interstate 80 in Lake County, Indiana, when he allegedly was rear-ended by another tractor-trailer, owned by defendant New Prime, Inc. ("New Prime"), and operated by defendant Robert Tapper ("Tapper"). The plaintiff sued on April 8, 1999, claiming that Tapper was operating his tractor-trailer within the course and scope of employment with New Prime, that Tapper's negligence caused back injuries the plaintiff suffered as a result of the accident, and that New Prime is liable under the doctrine of respondeat superior.
New Prime answered the complaint. Tapper was served with a summons and complaint on August 3, 1999, but he filed no responsive pleading and failed to appear in person or by counsel. On October 18, 1999, the court found Tapper to be in default for liability purposes only, and stayed the determination of damages until New Prime's liability is established. See Fed.R.Civ.P. 55(b).
The plaintiff amended his complaint on November 18, 1999, adding a claim for negligent maintenance of the vehicle that allegedly struck him. New Prime filed a timely answer. Tapper also answered, and moved to set aside the entry of default judgment against him. That motion is now before the court.
II.
Federal Rule of Civil Procedure 55(c) provides: "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Fed.R.Civ.P. 55(c). Rule 60(b) provides that a motion to set aside a judgment may be granted for the following six reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from the operation of the judgment. See Fed.R.Civ.P. 60(b). The court should consider factors such as whether "`the defaulting party acts with reasonable diligence in seeking to set aside the default and tenders a meritorious defense.' . . . the personal responsibility of the [defaulting] party, the prejudice to the [opposing] party, whether there is a history of dilatory action, and the availability of sanctions less drastic." Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953 (4th Cir. 1987) (quoting United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982)).
The Magistrate Judge found that Tapper failed to satisfy any of the criteria set forth in Rules 55 and 60. ( See May 8, 2000, Report Recommendation at 4.) The court agrees. Tapper provided no legitimate explanation for his failure to appear. Tapper does not argue that he initially failed to appear due to "mistake, inadvertence, surprise, or excusable neglect," Fed.R.Civ.P. 60(b)(1), or due to any of the other factors enumerated in Rule 60. Tapper's only explanation is that, after New Prime's counsel informed the insurance carrier that a default judgment had been entered against Tapper, the insurance carrier decided to provide Tapper with a defense. ( See Def.'s Mot. to Set Aside Default at ¶¶ 6-7.) This does not explain or justify why Tapper did not respond in the first instance. It only describes the insurance carrier's ex post reaction to the entry of default. Tapper's failure to object to the Magistrate Judge's Report and Recommendation also evidences his lack of justifiable explanation.
Neither party filed objections to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72(b).
The Magistrate Judge also found "nothing in [the defendant's] pleadings that would demonstrate Tapper has any real, justifiable, meritorious defense to liability in the case." (May 8, 2000, Report Recommendation at 4.) Tapper denies he "carelessly, recklessly and negligently operated his tractor-trailer so that it collided with the rear of plaintiff's tractor-trailer." (Am. Compl. at ¶ 10.) ( See Answer of Def. Tapper at ¶ 10.) Tapper also asserts defenses of assumption of risk, and contributory and comparative negligence. ( See Answer of Def. Tapper at ¶ 19.) However, these defenses normally fail in cases involving a rear-end collision, and Tapper has provided no argument or evidence that his defenses would be meritorious in this case.
The court finds that Tapper has satisfied none of the criteria set forth in Rules 55 and 60, that he has come forward with no justifiable explanation for his failure to appear or respond in this case, that he is personally responsible for that failure, and that he has not tendered a meritorious defense to the allegations in the complaint. These factors, considered in conjunction with the other Lolatchy factors, weigh against granting Tapper's motion.
Having concluded from Tapper's failure to satisfy the requirements of Rules 55 and 60 that his motion should be denied, the court need not address the issue of standing raised by the Magistrate Judge. ( See May 8, 2000, Report Recommendation at 3-4.)
III.
For all of the foregoing reasons, Tapper's Motion to Set Aside Default Judgment shall be denied. An appropriate Order this day shall follow.
ORDER
By order dated January 7, 2000, this case was referred to the Honorable B. Waugh Crigler, United States Magistrate Judge, for proposed findings of fact and a recommended disposition concerning defendant Robert Tapper's December 15, 1999 Motion to Set Aside Entry of Default. The Magistrate Judge filed his report on May 8, 2000, and recommended that the defendant's motion be denied. After a careful review of the entire record in this case, and for the reasons stated in the accompanying Memorandum Opinion, it is this day
ADJUDGED AND ORDERED
that the defendant's Motion to Set Aside Entry of Default shall be, and hereby is, DENIED.
The Clerk of the Court hereby is directed to send a certified copy of this Order and the accompanying Memorandum Opinion to all counsel of record and to Magistrate Judge Crigler.