Maes v. Bland et al

Filing 46

ORDER by Chief Judge Philip A. Brimmer on 9/3/2019, re: 30 Motion to Set Aside is GRANTED; 32 Plaintiff's Motion for Entry of Default is DENIED AS MOOT. ORDERED that the Clerk's Entry of Default against defendants Allusi, Bland, Denwalt, and Hansen [Docket No. 29] is VACATED. ORDERED that the Answer [Docket No. 31] filed by defendants Bland, Denwalt, and Hansen is accepted for filing as of November 21, 2018..(sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 18-cv-00052-PAB-NYW
CARLOS RAY MAES,
Plaintiff,
v.
BLAND, Lieutenant,
ALLUSI, Sergeant,
DENWALT, Captain,
HANSEN, Case Manager,
JOHN DOE, Case Manager 1,
JANE DOE, Nurse 1
JANE DOE, Nurse 2
JOHN DOE/JANE DOE, Doctor,
Defendants.

ORDER

This matter is before the Court on Defendants’ Motion to Set Aside Clerk’s Entry
of Default [Docket No. 30] filed on November 21, 2018. Plaintiff did not file a response.
Plaintiff did, however, file a Motion for Default Judgment [Docket No. 32] on November
30, 2018.
Plaintiff filed this lawsuit against defendants on January 8, 2018 [Docket No. 1]
and filed an Amended Prisoner Complaint on August 9, 2018 [Docket No. 11] 1 raising
claims under the 8th and 14th Amendments. Docket No. 11 at 6, 8, 10. The Colorado
Department of Corrections (“DOC”) executed a waiver of service on behalf of
1

Defendant Allusi’s name is spelled as both “Allusi” and “Alluisi” throughout the
record. The Court uses the spelling in plaintiff’s Amended Prisoner Complaint [Docket
No. 11].

defendants Bland, Denwalt, and Hansen on August 22, 2018. 2 Docket No. 14. An
answer was due on October 22, 2018, but no answer was filed.
On October 29, 2018, plaintiff moved for entry of default pursuant to Fed. R. Civ.
P. 55. Docket No. 25. The clerk refused to enter default due to deficiencies in
plaintiff’s motion. Docket No. 26. Plaintiff remedied the deficiencies and filed a second
request for entry of default on November 5, 2018. Docket No. 28. Default was entered
as to defendants Allusi, Bland, Denwalt, and Hansen on November 7, 2018. Docket
No. 29.
Defendants filed a motion to set aside the default as to defendants Bland,
Denwalt, and Hansen. Docket No. 30. In their motion, defendants claim that their
failure to file an answer or otherwise respond was due to a miscommunication between
the DOC and the Office of the Attorney General which caused defendants’ counsel to
be unaware that service had been accepted. Docket No. 30 at 2, ¶ 6. Def endants
state that counsel learned of the entry of default on November 20 and immediately took
action to remedy the error. Id. at 3, ¶ 8. Defendants argue that good cause exists to
set aside the clerk’s entry of default. Id.
The Court may set aside an entry of default for good cause. See Fed. R. Civ. P.
55(c). The good cause standard is a less demanding standard than the excusable
neglect standard which must be shown for relief from judgment under Fed. R. Civ. P.

2

The DOC did not waive and accept service as to defendant Allusi, who was no
longer a DOC employee at the time of service, or as to the John Doe and Jane Doe
defendants, who could not be identified as current DOC employees. Docket No. 14. A
summons was returned as unexecuted as to defendant Allusi on October 12, 2018.
Docket No. 23.
2

60(b). Dennis Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 775 n.6
(10th Cir. 1997). In determining whether to vacate the Clerk’s entry of default, the Court
may consider the following factors: (1) whether the defendant’s culpable conduct led to
the default; (2) whether the plaintiff will be prejudiced by setting aside the entry of
default; and (3) whether the defendant has a meritorious defense. See Hunt v. Ford
Motor Co., 1995 WL 523646, at *3 (10th Cir. Aug. 29, 1995) (unpublished) (citing In re
Dierschke, 975 F.2d 181, 183 (5th Cir. 1992)). The Court need not consider each one
of these factors and may consider other factors in its discretion. Id. The Court is
guided by the principle that “[t]he preferred disposition of any case is upon its merits
and not by default judgment.” Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.
1970); see also Katzson Bros., Inc. v. E.P.A., 839 F.2d 1396, 1399 (10th Cir. 1988)
(noting that “default judgments are not favored by courts”). It is, however, within the
Court’s discretion to balance the judicial preference against default judgments with
“considerations of social goals, justice and expediency.” Gomes, 420 F.2d at 1366.
With respect to the first factor, whether the default was caused by defendants’
culpable conduct, defendants concede that their failure to file a timely answer was the
result of a miscommunication between their counsel and the DOC, which accepted
service on their behalf. Docket No. 30 at 4, ¶ 14. Nevertheless, defendants assert that
their conduct was not culpable because the error was unintentional and because they
acted quickly to rectify their mistake after becoming aware of the missed deadline and
entry of default. Id. “Generally a party’s conduct will be considered culpable only if the
party defaulted willfully or has no excuse for the default.” United States v. Timbers

3

Preserve, Routt Cty., Colo., 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other
grounds by Degen v. United States, 517 U.S. 820 (1996). Generally, an unintentional
or good faith mistake does not rise to the level of culpable conduct under Rule 55(c),
particularly where a party takes prompt action to remedy its error. See Crapnell v.
Dillon Companies, Inc., No. 14-cv-01713-KLM, 2015 WL 328524, at *5 (D. Colo. Jan.
23, 2015) (determining that “an unintentional or good faith mistake is not considered
culpable conduct for the purposes of Rule 55(c)” and that “a party’s prompt motion to
set aside an entry of default serves to mitigate any culpability that may exist”); Zen & Art
of Clients Server Computing, Inc. v. Resource Support Assocs., Inc., No. 06-cv-00239REB-MEH, 2006 WL 1883173, at *2 (D. Colo. July 7, 2006) (stating that “courts have
consistently held that an honest mistake by the Defendant does not represent a willful
failure to respond”). Because there is no reason to doubt def endants’ characterization
of the events leading to their failure to timely file an answer, the Court finds that
defendants’ error regarding the acceptance of service and resulting deadlines does not
rise to the level of culpable conduct under Rule 55(c).
The second factor also weighs in favor of setting aside the default. Defendants
moved to set aside the entry of default one month after the deadline to file an answer
and two weeks after the entry of default. Given that the case was still in its early
stages, the Court is unable to identify any prejudice that would result if the entry of
default is set aside. See SecurityNational Mortg. Co. v. Head, No. 13-cv-03020-PABBNB, 2014 WL 4627483, at *3 (D. Colo. Sept. 15, 2014) (“T here is no prejudice to the
plaintiff where the setting aside of the default has done no harm to plaintiff except to

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require it to prove its case.” (internal quotation marks omitted)); Apex Mobility
Transportation, LLC v. First Transit, Inc., No. 14-cv-02645-REB-MEH, 2015 WL 59553,
at *3 (D. Colo. Jan. 2, 2015) (finding no prejudice because defendant moved to set
aside entry of default within two weeks of the entry of default, which had occurred less
than a month after the case was initiated). Plaintiff’s failure to respond to defendants’
motion to set aside the entry of default, beyond filing a motion for default judgment after
defendants filed their motion, is further indication that he would not suffer any prejudice
should the Court grant such relief.3 See Estate of Ortiz v. Lithia Motors, Inc., No. 08-cv00907-PAB-KLM, 2009 WL 1258969, at *2 (D. Colo. May 5, 2009) (finding that factors
weighed in favor of setting aside entry of default where plaintiff did not identify any
undue prejudice it would suffer if entry of default were vacated).
As to the third factor, defendants claim that they have raised meritorious
defenses in their Answer to the Amended Complaint [Docket No. 31]. Docket No. 30 at
7, ¶ 20. In determining whether a defendant has a meritorious defense for purposes of
setting aside an entry of default, “the court examines the allegations contained in the
moving papers to determine whether the movant’s version of the factual circumstances
surrounding the dispute, if true, would constitute a defense to the action.” In re Stone,
588 F.2d 1316, 1319 (10th Cir. 1978). 4

3

Because plaintiff is proceeding pro se, his pleadings are liberally construed.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court will not be an
advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
4

“The allegations may be satisfactorily presented in the written motion itself, in an
appended proposed answer, or in attached affidavits.” In re Stone, 588 F.2d at 131920. Defendants filed a separate answer [Docket No. 31] after filing their motion to set
5

In their answer, defendants assert ten affirmative defenses. Docket No. 31 at 45, ¶¶ 1-10. However, their assertions are conclusory and do not include “a sufficient
elaboration of facts to permit the trial court to judge whether the defense, if movant’s
version were believed, would be meritorious.” In re Stone, 588 F.2d at 1319; see also
id. at 1320 & n.4 (defendant’s assertions that plaintiff’s allegations were “false,” that
plaintiff was prohibited from relitigating certain issues under the doctrine of collateral
estoppel, and that plaintiff had failed to state a claim upon which relief could be granted
constituted “general allegations of . . . meritorious defense” that were insufficient to
support defendant’s motion for relief from default judgment). Similarly, defendants
assert, among other things, that plaintiff failed to state a claim upon which relief could
be granted and that plaintiff’s claims may be barred by collateral estoppel or by an
expired statute of limitations. But these cursory allegations set out neither factual
bases nor legal bases sufficient to establish that their defenses could be meritorious.
See id. at 1319 n.2 (stating that a “legal defense such as collateral estoppel . . . would
require sufficient facts to show the nature of the prior action, that it involved the same
parties, and that the particular issues determined give rise to a defense of collateral
estoppel”). Defendants have not established that they have a meritorious defense to
plaintiff’s claims.
Nevertheless, the Court need not consider every factor in determining whether to

aside the default. Plaintiff, having filed no response to the motion to set aside, does not
challenge the method by which defendants assert their defenses. The Court will
consider the factual allegations set out in defendants’ Answer in determining whether
they have established that they have a meritorious defense to plaintiff’s claims. [Docket
No. 31].
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set aside an entry of default. Hunt, 1995 WL 523646, at *3; see also SecurityNational
Mortg. Co., 2014 WL 4627483, at *3 (finding that, “even if defendants’ failure to timely
respond was culpable, the other factors weigh[ed] in favor of granting the motion to set
aside”); Edes v. Fredson, 344 F. Supp. 2d 209, 213 (D. Me. 2004) (setting aside entry
of default despite defendant’s failure to set forth a meritorious defense). Given that the
other factors – culpability and prejudice – weigh in favor of setting aside the entry of
default, the Court finds that any doubts in regard to the existence of meritorious
defenses should be resolved in defendants’ favor. See Tozer v. Charles A. Krause
Milling Co., 189 F.2d 242, 245 (3d Cir. 1951) (holding that any doubts regarding entry of
default should be resolved in favor of the defendant, particularly because “[m]atters
involving large sums should not be determined by default judgments if it can reasonably
be avoided”); J & J Sports Prods., Inc. v. Prado, 2008 WL 822159, at *2 (E.D. Cal. Mar.
27, 2008) (stating that, in motion to set aside default, “any doubts as to whether
Defendants have a meritorious defense are to be resolved in their favor”); Rasmussen
v. Am. Nat’l Red Cross, 155 F.R.D. 549, 552 (S.D. W . Va. 1994) (setting aside entry of
default in light of “general policy of deciding cases on their merits,” despite fact that
defendant’s “meritorious defense” argument was “tenuous”).5
“Entry of default is a harsh sanction, contrary to the preferred policy of the

5

The Court further notes that “the good cause required by Fed. R. Civ. P. 55(c)
for setting aside entry of default poses a lesser standard for the defaulting party than
the excusable neglect which must be shown for relief from judgment under Fed. R. Civ.
P. 60(b).” Dennis Garberg & Assocs., Inc., 115 F.3d at 775 n.6. Many of the cases
applying the “meritorious defense” factor, including In re Stone, have done so in the
context of a Rule 60(b) motion, which requires a greater showing than the one required
in this case.
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resolution of disputes on the merits.” Mitchell v. Wiley, No. 06-cv-00547-WYD-BNB,
2007 WL 1548945, at *2 (D. Colo. May 24, 2007). Considering the absence of culpable
conduct on the part of defendants, the lack of prejudice to plaintiff, and the strong
preference for resolution of cases on their merits, see In re Rains, 946 F.2d 731, 73233 (10th Cir. 1991), the Court finds good cause to vacate the entry of default as to
defendants Bland, Denwalt, and Hansen pursuant to Fed. R. Civ. P. 55(c). Further, the
Court finds good cause to vacate the entry of default as to defendant Allusi because
there is no indication that he was properly served. See Kriston v. Peroulis, No. 09-cv00909-MSK-MEH, 2010 WL 11553397, at *2 (D. Colo. Oct. 28, 2010) (“[P]rocedural
deficiencies such as inadequate service, lack of subject matter jurisdiction, or lack of
personal jurisdiction constitute good cause allowing an entry of default to be set
aside.”); see also Insituform Techs., Inc. v. AMerik Supplies, Inc., 588 F. Supp. 2d
1349, 1352 (N.D. Ga. 2008) (“W here service of process is insufficient, the entry of
default is void and must be set aside.”). It is therefore
ORDERED that defendant’s Motion to Set Aside Clerk’s Entry of Default [Docket
No. 30] is GRANTED. It is further
ORDERED that the Clerk’s Entry of Default against defendants Allusi, Bland,
Denwalt, and Hansen [Docket No. 29] is VACATED. It is further
ORDERED that the Answer [Docket No. 31] filed by defendants Bland, Denwalt,
and Hansen is accepted for filing as of November 21, 2018. It is further
ORDERED that plaintiff’s Motion for Default Judgment [Docket No. 32] is
DENIED AS MOOT.

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DATED September 3, 2019.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge

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