Free Motion to Set Aside Default - District Court of Delaware - Delaware

Case 1:04—cv—01367-GI\/IS Document 55-2 Filed 08/24/2006 Paget of2
Westlaw .
Not Reported in F.Supp.2d Page 1
Not Reported in F.Supp.2d, 2004 WL 609320 (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
Plaintiff contends that the Court should enter
Briefs and Other Related Documents default because the Defendant has not tiled an
Only the Westlaw citation is currently available. answer to her Complaint. In response, Defendant
United States District Cou1t,D. Delaware. contends that the Court should deny Plaintiffs
K. Kay SHEARIN, Plaintiff, Motion because this case is at an early stage of
v. litigation and Plaintiff has not been prejudiced by
Timothy W. POOLE, Defendant. any delay. Further, Defendant contends that he has a
No. Civ.A. 03-580 JJF. meritorious defense_ of lack of subject matter
jurisdiction. Defendant also maintains that his
March 23,2004. failure to tile an answer was not due to willful
O conduct or bad faith.
K. Kay Shearin, Wilmington, Delaware, Plaintiff, Although no default has been entered in the instant
pro se. case, the Cotut concludes that the factors
Bruce C. Herron, of Akin & Herron, P.A., enumerated by the Third Circuit in United States v.
Wilmington, Delaware, for Defendant. $ 55,518.05 in US. Currency, 728 F.2d 192 (3d
Cir.1984), for setting aside an entry of default
MEMORANDUM OPINION counsel against granting Plaintiffs Motion. A
FARNAN, J. decision to vacate the entry of default is left to the
*1 Presently before the Court is Plaintiffs Motion discretion of the district court. Ial In making this
for Entry of Default Judgment and Supporting determination, courts consider: 1) whether the
Affidavit. (D.I.10.) For the reasons set forth below, plaintiff will be prejudiced if the court sets aside the
the Court will deny the Motion. default; 2) whether the defendant has a meritorious
· defense; and 3) whether the default was a result of
the defendant's culpable conduct. Ial In the Third
BACKGROUND Circuit, defaults are generally disfavored, and
therefore, courts resolve, in close cases, doubts in
Plaintiff tiled the instant lawsuit on Jrme 24, 2003 favor of resolving the cases on the merits. Zawadski
(D.I.2) and the Defendant was served on July 29, De Bueno v. Bueno Castro, 822 F.2d 416, 420 (3d
2003. (D.I.9.) The Defendant did not timely tile an Cir.l987) (citing Gross v. Stereo Component Sys.,
answer. By her Motion, Plaintiff moves for entry of Inc., 700 F .2d 120, 122 (3d Cir.1983)); Farnese v.
dgfgu1tjudgmg¤t_17Nl GLIOFICISCO, 687 F.2d 76], 764 (3d Cl1`.l982).
Plaintiff has not alleged that she will be prejudiced
FNi_ Although Plaintiff movos for ohtiy of by Defendant's failure to timely tile an answer.
dofooit judgment, o party most movo for Thus, the first factor weighs against the entry of
Entry gf tiofotiit pyigy to toqtiootihg tho default. The Court also concludes that the second
entry of dofgtult jiidghioht_ Seo factor weighs against entry of default. A defense is
Foti_R_(jiv,p_ 55(g)_ Because Pioihtiff is meritorious if proved at trial, it would be a
pyggggdiiig prt) gg, the Court; wil] cgngtrug COlTlpl€lCC d€f€1'1S€. $ 55,518.05, 728 F.2d 2111 195
Piohitiffs Motion as o mgtion for ohtiy of (citing T ozer v. Charles A. Krause Milling C0., 189
tiofotiit F.2d 242, 244 (3d Cir.1951)). Defendant contends
that the Court is without subject matter jurisdiction
DISCUSSION over Plaintiffs claims. The defense of lack of
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Case 1:04—cv—0t367-GI\/IS Document 55-2 Filed 08/24/2006 Page 2 of 2
Not Reported in F.Supp.2d Page 2
Not Reported in F.Supp.2d, 2004 WL 609320 (D.Del.)
(Cite as: Not Reported in F.Supp.2d)
subject matter jurisdiction is acornplete defense. NOW THEREFORE, IT IS HEREBY ORDERED
that Plaintiffs Motion for Entry of Default
Next, the Court concludes that the Defendant's Judgment and Supporting Affidavit (D.I.l0) is
conduct does not weigh strongly in favor of entering DENIED.
default. Legal counsel for the Defendant asserts that
— he was on vacation at the time he was forwarded D.Del.,2004.
Plaintiffs Summons and Complaint and that he Shearin v. Poole
promptly entered his appearance and filed a Motion Not Reported in F .Supp.2d, 2004 WL 609320
to Dismiss, currently pending, shortly thereafter. (D.Del.)
The Defendant does not explain, however, why the
attorney who first appeared in this action on his Briefs and Other Related Documents (Back to top)
behalf was tmable to respond to the Complaint.FN2
Nevertheless, even when taking into account ‘ l103OV0O580 0D¤¤1<¤t)(Jun.24, 2003)
Defendanfs failure to act despite having at least one
attorney available to respond to Plaintiffs END OF DOCUMENT
Complaint, on the record before it the Court is
without evidence sufficient to find " ‘an inference
of willfuhress or bad faith [.]" ’ Zawardski, 822
F.2d at 420 (quoting Gross, 700 F.2d at 124). At
most, the Court fmds a "breakdown in
communication" between counsel and the
Defendant, which under controlling precedent does
not qualify as culpable conduct. Id
FN2. Two attorneys have made
appearances in this case on behalf of
Defendant. The first, Edward McNally,
Esquire, noticed his appearance on June
26, 2003. The second, Bruce Herron,
Esquire, noticed his appearance on August
28, 2003, Mr. McNally withdrew as
counsel on September 5, 2003. (D.I.l6.)
*2 In sum, the Court concludes that it must deny
Plaintiffs Motion. Plaintiff has not established
prejudice, the Defendant has a meritorious defense,
and there is no evidence supporting a fmding that
Defendants or his attorney's actions were culpable.
An appropriate Order will be entered.
ORDER
At Wilmington, this 23rd day of March 2004, for
the reasons discussed in the Memorandum Opinion
issued this date; V
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