The opinion of the court was delivered by: Richard W. Roberts, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs brought this action under the successor to the Antiterrorism
Act of 1991, 18 U.S.C. § 2331-2339 (2000), alleging that the
defendants were involved in the November 2000 bombing of a school bus in
the Gaza Strip which killed plaintiff Avigail Biton's husband and
severely injured plaintiff Rachel Asraf. Defendants, the Palestinian
Interim Self Government Authority ("PA") and the Palestinian Liberation
Organization ("PLO"), move to set aside default entered against them and
move for leave to file late a motion to dismiss the complaint, while
plaintiffs move for entry of default judgment against those two
defendants. Although defendants' vague and unsupported explanations for
their failure to respond to the complaint timely seem meritless, the
circumstances, on balance, favor setting aside default and defendants'
motions will be granted.
Plaintiffs filed a second amended complaint and served defendants by
mail on October 22, 2001. The parties simultaneously filed a stipulation
giving defendants' counsel 45 days from receipt of the second amended
complaint to respond. The Court signed the stipulation and entered it as
an order. Defendants failed to respond timely and sought no extension of
time within which to respond. On February 7, 2002, plaintiffs moved for
entry of default against the PA and the PLO, and the clerk entered
default. Default was entered apparently just as defendants were arranging
to deliver for filing a motion to dismiss. Upon learning of the entry of
default, defendants filed shortly thereafter a motion to set aside
default and for leave to file their motion to dismiss, while plaintiffs
filed a motion for entry of default judgment against the PA and the PLO.
Resolving litigation by default is disfavored because of "the strong
policies favoring the resolution of genuine disputes on their merits.
. . ." Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980).*fn1
Thus, entry of default may be set aside merely "for good cause shown."
In determining whether good cause is shown, courts balance three
factors: whether "1) the default was willful, 2) a set-aside would
prejudice plaintiff, and 3) the alleged defense was meritorious. . . ."
Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 373 (D.C.
Cir. 1980); see also Baade v. Price, 175 F.R.D. 403, 405-406 (D.D.C.
1997) (citing Jackson, 636 F.2d at 836).
In assessing the factual circumstances asserted by the parties, "all
doubts are resolved in favor of the party seeking relief." Jackson, 636
F.2d at 836 (citation omitted).
Defendants offer two explanations for their delay. They say that the
escalating Palestinian-Israeli conflict hampered communications necessary
to prepare a response, and that defendants needed to coordinate their
positions taken in multiple pending cases. Defendants have supplied no
specifics — by proffer, affidavit, or otherwise — to support
these claims. They have failed to identify who sought to communicate with
whom and how, when it was, what specific events prevented the contacts,
and what specifically prevented any claimed need to coordinate their
Most tellingly, defendants never sought from the Court or the
plaintiffs an extension on their deadline, and wholly fail to explain why
they did not or could not. Defendants' explanations for their delay sound
more like hollow excuses. My duty to accord the defendants the benefit of
the doubt, however, keeps me from finding defendants' default to have
The second factor is whether setting aside default would prejudice the
plaintiffs. Plaintiffs do not argue that it would, nor is any possible
prejudice apparent. This case is procedurally in its early stages. No
discovery has been conducted, and no summary judgment motions have been
In addition, the plaintiffs' entire case against the remaining
defendants lies ahead of them.
Finally, regarding the presence of a meritorious defense, defendants
have raised in their proposed motion to dismiss several affirmative
defenses, including lack of subject matter jurisdiction, lack of in
personam jurisdiction and non-justiciability. It is too early in this
litigation to gauge the strength of those defenses, but the "[l]ikelihood
of success is not the measure" here. Keegel, 627 F.2d at 374.
"Defendants' allegations are meritorious if they contain even a hint of a
suggestion which, proven at trial, ...