*1 Case 1:04-cv-02196-JEC Document 45 Filed 01/19/06 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROM, U'S - L ATLANTA DIVISION ESSEX INSURANCE COMPANY, ~,~. ~._ WTI : 7L~l

Plaintiff, ':CIVIL ACT ION NO .

v . ;1 :04-CV-2196-JEC HANKOOK TIRE AMERICA

CORPORATION, AMWARE

DISTRIBUTION WAREHOUSES OF

GEORGIA, INC .,

Defendants .

ORDER This case is before the Court on the Motion for Default Judgment as to defendant Hankook Tire America Corporation by defendant) Amware Distribution Warehouses of Georgia, Inc . [41] . Defendant Hankook has filed an Aff i davit X 42 ] i n oppositionn to Amware's . motion .

In this Affidavit, counsel for Hankook agrees that Hankook has not filed an answer to the Counterclaim filed by Amware . Counsel affies that he was unaware that Anware had filed this Counterclaim until counsel received the motion for default judgment . Moreover, counsel affies that Hankook has meritorious defenses . In short, Hankook, through its counsel, asserts that it has met the three-prong

1 Plaintiff Essex Insurance Company has been dismissed from the action . The only parties remaining are thesetwo "defendants ." AO 72A (Rev.8182)

Case 1:04-cv-02196-JEC Document 45 Filed 01/19/06 Page 2 of 2 test recognized by the Eleventh Circuit in evaluating whether to y vacate or deny a default judgment . That is, (1) Hankook has meritorious defense ; (2) Amware will suffer no prejudice by a refusal to enter the default ; and (3) there was a good reason for Hankook's failure to respond .

The Court deems Hankook's explanation for failure to respond to I Amware's Counterclaim to be persuasive . Hence, the Court DENIES Amware's Motion For Default Judgment [41] .

Hankook shall file an answer to the Counterclaim within ten (ld) days of this Order . The parties shall file a revised Scheduling Order within twenty (20) days . The Clerk shall resubmit this actionI within twenty-one days of this Order . /~ day of January, 2006 .

SO ORDERED, this ~PM= E~-- CARVES

UNITED STATES DISTRICT JUDGE 2

AO 7za (Rev. Bl82)