                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA


PRIMITIVA JIMENEZ VERASTEGUI et
al.,

                Plaintiffs,
        v.                                               Civil Action No. 18-2358 (TJK)

KEVIN MCALEENAN et al.,

                Defendants.


                                                ORDER

        Plaintiffs commenced this action seeking judicial review of the denial of their

applications for adjustment of their immigration status. See ECF No. 1. On June 5, 2019, a

week after Defendants’ answer was due, the Clerk of Court entered Defendants’ default at the

request of Plaintiffs because Defendants had failed to answer or otherwise respond to Plaintiffs’

complaint by the deadline set by the Court. See ECF No. 19. Two days later, Defendants moved

to vacate the Clerk’s entry of default and dismiss the complaint. See ECF No. 20; ECF No. 21.

A week later, Plaintiffs opposed the motion to vacate and moved for default judgment in a

consolidated filing. See ECF No. 23. For the reasons explained below, Defendants’ motion to

vacate is GRANTED, and Plaintiffs’ motion for default judgment is therefore DENIED.

Defendants’ motion to dismiss, however, is DENIED without prejudice.

                              *                     *                       *

        An entry of default may be set aside for “good cause.” Fed. R. Civ. P. 55(c). That

determination is left to the discretion of the district court, but “[i]n exercising its discretion, the

district court is supposed to consider ‘whether (1) the default was willful, (2) a set-aside would

prejudice [the] plaintiff, and (3) the alleged defense [is] meritorious.’” Mohamad v. Rajoub, 634
F.3d 604, 606 (D.C. Cir. 2011), aff’d sub nom, Mohamad v. Palestinian Auth., 566 U.S. 449

(2012) (quoting Keegel v. Key W. & Caribbean Trading Co., 627 F.2d 372, 373 (D.C. Cir.

1980)). Nonetheless, “in this Circuit, ‘strong policies favor resolution of disputes on their

merits.’” Republic of Kazakhstan v. Stati, 325 F.R.D. 507, 509 (D.D.C. 2018) (quoting Jackson

v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).

       To begin with, Plaintiffs contend that Defendants’ motion to vacate should be denied on

procedural grounds that largely relate to their motion to dismiss. Specifically, Plaintiffs argue

that Defendants’ motion to dismiss is defective because Defendants neglected to include a

certified list of the contents of the administrative record as required by Local Civil Rule 7(n) and

further because they did not seek leave of Court to file the motion. ECF No. 22-1 at 20–21. And

without a procedurally proper response to the complaint on the docket, Plaintiffs insist,

Defendants’ motion to vacate is deficient, because it was not “accompanied by a verified answer

presenting a defense sufficient to bar the claim in whole or in part” as required by Local Civil

Rule 7(g). ECF No. 22-1 at 20–21.1 Plaintiffs also allege the Defendants’ counsel did not

meaningfully confer with Plaintiffs’ counsel before moving to vacate the entry of default as

required by Local Civil Rule 7(m).

       But the Court, in its discretion, concludes that these alleged defects do not warrant

denying Defendants’ motion to vacate. Plaintiffs are correct that Defendants did not seek leave

to file their motion to dismiss out of time in accordance with Federal Rule of Civil Procedure

6(b)(1)(B). See Smith v. District of Columbia, 430 F.3d 450, 456–57 (D.C. Cir. 2005). For that




1
 As Plaintiffs’ concede, though, courts “routinely accept and consider motions to set aside entry
of default accompanied by motions to dismiss, rather than verified answers.” Acree v. Republic
of Iraq, 658 F. Supp. 2d 124, 128 (D.D.C. 2009).


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reason, the Court will deny Defendants’ motion to dismiss without prejudice and afford them an

opportunity to refile.

        All the same, the Court will not deny Defendants’ motion to vacate on the basis that

Defendants’ motion to dismiss was procedurally improper. See Haskins v. U.S. One Transp.,

LLC, 755 F. Supp. 2d 126 (D.D.C. 2010) (granting motion to set aside default but denying

accompanying dispositive motion because of procedural defects, with a chance to refile). As

explained below, the Court is satisfied, upon review of the motion to dismiss, that Defendants are

prepared to present a meritorious defense. Furthermore, doing so accords with this Circuit’s

strong policy in favor of deciding cases on the merits. See Stati, 325 F.R.D. at 509 (excusing

defendants from Rule 7(g)’s requirement in part because of strong preference to proceed on the

merits). Lastly, to the extent that Defendants did not meaningfully confer with Plaintiffs before

moving to vacate—Plaintiffs allege that they only received an email a few hours before

Defendants filed the motion—given that the intention of Rule 7(m) is to compel parties to try to

resolve or narrow disputes prior to involving the Court, it is not clear what purpose denying

Defendants’ motion on that basis would serve now in light of Plaintiffs’ vigorous opposition. In

sum, the Court will not deny Defendants the opportunity to participate in this case on these

technicalities.

        Turning to the merits of Defendants’ motion to vacate, Plaintiffs do not contest the first

two factors—nor could they. See ECF No. 22-1 at 6. As to the willfulness factor, counsel for

Defendants represents that he “mistakenly believed he had until [the following] week to file

Defendants’ response to Plaintiffs’ complaint.” ECF No. 20 ¶ 2. And upon realizing his error

after the Clerk’s entry of default, he promptly prepared a response and moved to set aside the

default a mere two days later. “To show willfulness, a moving party need not establish bad faith,




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though it must demonstrate more than mere negligence.” Gray v. Staley, 310 F.R.D. 32, 35

(D.D.C. 2015). Nothing in the record suggests that counsel for Defendants’ conduct amounted to

anything beyond carelessness. As to the prejudice factor, Plaintiffs admit that they “cannot be

said to be too prejudiced” by Defendants’ one-week delay in responding to the complaint. ECF

No. 22-1 at 6.

       Instead, Plaintiffs emphasize the third factor, but it gets them no further. As Plaintiffs

note, Defendants in their motion to dismiss both assert that this Court lacks jurisdiction to review

the denial of their immigration applications and dispute the merits of Plaintiffs’ claims that the

agency misinterpreted the relevant statutory provisions and violated the Administrative

Procedure Act. See ECF No. 21-1 at 5–8 (jurisdictional argument), 8–15 (statutory argument).

In the context of a motion to vacate a Clerk’s entry of default, “allegations are meritorious if they

contain ‘even a hint of a suggestion’ which, proven at trial, would constitute a complete

defense.” Keegel, 627 F.2d at 374 (quoting Moldwood Corp. v. Stutts, 410 F.2d 351, 352 (5th

Cir. 1969)). Defendants’ argument that the agency correctly interpreted and applied the

applicable statutory provisions in denying Plaintiffs’ applications would—if the Court agreed—

constitute a complete defense to Plaintiffs’ claims for relief. And reviewing that argument, the

Court concludes, at the very least, that it meets the low bar for “meritorious” in this context.

Accordingly, the Court finds that this factor weighs in favor of vacatur as well.

       Upon consideration of the relevant factors, and particularly in light of this Circuit’s

strong preference for resolving disputes on the merits, the Court finds that setting aside the entry

of default is warranted.




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        For all these reasons, it is hereby ORDERED that Defendants’ Motion to Vacate, ECF

No. 20, is GRANTED. Because Defendants are no longer in default, Plaintiffs’ Motion for

Default Judgment, ECF No. 23, is DENIED.

        It is further ORDERED that Defendants’ Motion to Dismiss, ECF No. 21, is DENIED

without prejudice. Defendants shall seek leave to answer or otherwise respond to Plaintiffs’

complaint no later than June 24, 2019, and any proposed dispositive motion it seeks leave to file

shall be accompanied by a certified list of the contents of the administrative record, as required

by Local Civil Rule 7(n). Plaintiffs’ Motion for an Extension of Time to Respond to

Defendants’ Motion to Dismiss, ECF No. 24, is thus DENIED AS MOOT.

        Finally, although the Court determines, in its discretion, that vacating the entry of default

is appropriate here, the Court nevertheless finds counsel for Defendants’ conduct so far in this

action concerning, insofar as that conduct appears to reflect a lack of familiarity with the Federal

Rules and this Court’s local rules. It is further ORDERED that the parties promptly review and

familiarize themselves with those rules, as the Court may not look so favorably on

“technicalities” in the future.


        SO ORDERED.

                                                              /s/ Timothy J. Kelly
                                                              TIMOTHY J. KELLY
                                                              United States District Judge

Date: June 20, 2019




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