MARTIN G. YINUG, Associate Justice:
There are two motions now before the court, which should have been ruled upon earlier. The court apologizes for the delay.
The first is the motion to vacate the entry of default as to defendant Paulus Perman ("Perman") which was filed on November 6, 2000, and the second is plaintiffs' motion to strike, which was filed on November 30, 2000. The motion to vacate entry of default is granted, and the motion to strike is denied. The court considers the latter motion first, since it bears on the motion to vacate the entry of
[10 FSM Intrm. 161]
a. Motion to strike
Plaintiffs move under Rule 12(f) to strike Perman's November 24, 2000, memorandum in support of his motion to vacate entry of default, and the November 17, 2000, response of the FSM Development Bank ("the Bank") to the plaintiffs' opposition to Perman's motion to set aside the entry of default. Rule 12(f) by its terms applies to "pleadings," and provides in relevant part that the court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Pleadings" are defined by Rule 7(a) as the complaint, answer, reply to a counterclaim, answer to a cross-claim, third-party complaint, and third-party answer. Rule 7 expressly states that "[n]o other pleading shall be allowed, except that the court may order a reply to an answer or a third-party complaint." "No other paper will be considered a pleading except those specifically named in Rule 7(a). A motion in any form cannot stand as a pleading." 2 James Wm. Moore et al., Moore's Federal Practice ¶ 7.02[b], at 7-7 (3d ed. 1999) (footnotes omitted).
The submissions to which plaintiffs' motion to strike under Rule 12(f) is directed are a memorandum in support of a motion and a response to an opposition to a motion. As such, they are not subject to Rule 12(f). Rather, plaintiffs' request to strike falls under the general motion practice provision of Rule 7(b) of the FSM Rules of Civil Procedure, which provides in pertinent part that "[a]n application to the court for an order shall be by motion . . . and shall set forth the relief or order sought." Plaintiffs request that Perman's memorandum in support of his motion to vacate the entry of default be stricken as untimely, since it was filed 18 days after the motion. Rule 1 of the FSM Rules of Civil Procedure provides that the Rules will be "shall be construed to secure the just, speedy, and inexpensive determination of every action." Permitting the memorandum in support of the motion works toward this end by providing the court with additional relevant information. The motion to strike the memorandum, which the court will treat as a motion brought under Rule 7(b) of the FSM Rules of Civil Procedure, is therefore denied.
The plaintiffs have moved to strike the Bank's response to plaintiffs' opposition to Perman's motion to vacate the entry of default on the basis that the motion was not directed to the Bank. Plaintiffs contend that the Bank is a stranger, so to speak, to the motion and should not be permitted to respond. Rule 6(d) of the FSM Rules of Civil Procedure neither expressly prohibits nor permits this practice. It provides in pertinent part that "[t]he party opposing the motion shall not later than 10 days after the service of the motion upon that party, file and serve responsive papers" (emphasis added). Without more, "the party opposing the motion" can mean any party who opposes the motion. In multi-party cases generally, this court will at least consider a response by a party to whom a motion is not directed, although it would seem to go without saying that the party to whom the motion is directed is in a superior position fact-wise relative to other parties, and in all likelihood will be in a position to make arguments of greater weight relative to other parties, since the party to whom the motion is directed will be most directly affected by the motion's outcome. Accordingly, the plaintiffs' motion to strike the Bank's response to the plaintiffs' opposition to Perman's motion to vacate is denied.
b. The motion to vacate entry of default
On November 23, 2000, the court entered an order granting defendant Paulus Perman's motion to vacate entry of default against him. The motion was filed on November 6, 2000. At the time of the order vacating the entry of default, the court had not received at its Yap office a copy of plaintiffs' opposition to the motion to vacate the default, and on November 24, 2000, the court vacated the November 23, 2000, order, and indicated it would consider the opposition. On the same day, November 24, 2000, Perman also filed his memorandum supporting his motion to vacate the entry of
[10 FSM Intrm. 162]
In their opposition to the motion to vacate the entry of default, plaintiffs rightly point out that there was an insufficient factual basis presented in the original motion to vacate to support granting the motion. That defect was cured by the November 24, 2000, memorandum, which incorporated Perman's affidavit and explains why he did not file an answer.
Plaintiffs further contend that Perman has not demonstrated any basis under Rule 60(b) why the default should not be vacated. Rule 60(b) addresses relief "from a final judgment, order, or proceeding." At issue here is not a default judgment, but rather the entry of default, which is the precursor under Rule 55(a) to entry of a default judgment under Rule 55(b). Rule 55(c) provides that "[f]or 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). Rule 55 "distinguishes between relief from default, which is an interlocutory matter, and relief from a judgment by default, which involves final judicial action." 10 James Wm. Moore et al., Moore's Federal Practice ¶ 55.50 at 55-56 (3d ed. 1999). Thus, a "more liberal standard [is] applied to reviewing entry of default, as opposed to default judgments." Id. (footnote omitted). As a consequence, "[t]he court may refuse to set aside a default when the default is due to willfulness or bad faith or where the defendant offers no excuse at all for the default." Id. ¶ 55.50[c], at 55-65 (footnote omitted). Here, Perman explains that he relied on the representation of an employee of the Bank that the Bank would handle his defense in this case, and that after he learned that this was not so he obtained his own counsel who then filed the motion to vacate the entry of default. This is not a case where Perman "offers no excuse at all for the default." Id. The court finds that Perman's affidavit sufficiently supports his motion to vacate the entry of default. The motion to vacate the default is therefore granted.
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