Mayhan v. Sunoco Inc

Filing 39

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/8/2019. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEBORAH J. MAYHAN,
Plaintiff,
Civ. No. 18-355-RGA

V.

SUNOCO, INC.,
Defendants.

Deborah J. Mayhan, New Castle, Delaware. Pro Se Plaintiff.
Barry M. Klayman, Esquire, Cozen O'Connor, Wilmington, Delaware; Daniel V. Johns,
Esquire, Cozen O'Connor, Philadelphia, Pennsylvania; and Abigail M. Green, Esquire,
Cozen O'Connor, Pittsburgh, Pennsylvania. Counsel for Defendant.

MEMORANDUM OPINION

Julye 2019
Wilmington, Delaware

Plaintiff Deborah J. Mayhan filed this employment discrimination action on March
6, 2018, against Sunoco, lnc. 1 (0.1. 2). She appears prose and has been granted
leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (0.1. 4). On April
23, 2019, an entry of default was entered against Defendant. (0.1. 25). Presently
before the Court is Defendant's motion to set aside default and opposition to Plaintiff's
motion for default judgment. (0.1. 31). Plaintiff opposes. (D.I. 37). The matter has
been fully briefed.

BACKGROUND
Plaintiff timely filed this employment discrimination action on March 6, 2018.
(0.1. 2). The Complaint was screened and a service order entered on May 31, 2018.
(0.1. 5). On June 15, 2018, the United States Marshal Service mailed the complaint,
order and waiver of service documents to Defendant at 520 JFK Memorial Highway,
Newark, Delaware 19702, the location where Plaintiff had been employed. (0.1. 13).
When Defendant failed to timely return the waiver form, a service packet was forwarded
to the USMS to attempt personal service upon Defendant. (0.1. 13 and Oct. 1, 2018
docket entry). The return of service states that the USMS personally served John
(manager) of Sunoco at 520 JFK Memorial Highway, Newark, Delaware 19702 on
October 5, 2018. (0.1. 18). When Defendant did not timely file an answer, Plaintiff
moved for entry of default (0.1. 23), and it was entered by the Clerk on April 23, 2019
(0.1. 25). Next, Plaintiff requested default judgment and a hearing was scheduled for

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Defendant advises that it is incorrectly named and that Plaintiff's former employer is
properly named as Sunoco, Inc. (R&M), a subsidiary of Sunoco, Inc. (See 0.1. 32 at
n.1).

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August 19, 2019. (0.1. 26, 28). The Court ordered the Clerk of Court to mail notices
of the hearing to three additional addresses located for Defendant. (0.1. 28).
Defendant now moves to vacate the entry of default and opposes the request fo_r
default judgment. (0.1. 31).
DISCUSSION
Defendant moves to set aside the entry of default on the basis that there exists
good cause to do so. Having reviewed the instant motion and opposition thereto, the
Court concludes that the factors enumerated in United States v. $55.518.05 in U.S.
Currency, 728 F .2d 192 (3d Cir. 1984), support setting aside the entry of default. The

decision to vacate the entry of default is left to the discretion of the district court. Id.
In making this determination, the Court considers: (1) whether Plaintiff will be
prejudiced if the Court sets aside the default; (2) whether Defendant has a meritorious
defense; and (3) whether the default was a result of Defendant's culpable conduct. Id.
Defaults are generally disfavored, and therefore, in close cases, courts must construe
doubts in favor of resolving the cases on the merits. Zawadski De Bueno v. Bueno
Castro, 822 F .2d 416, 420 (3d Cir. 1987).

In the instant case, the Court concludes that the factors weigh in favor of
vacating the entry of default. First, even assuming arguendo there was proper service
of process, the Court cannot say that Plaintiff will be prejudiced by a delay in a
responsive pleading. Indeed, when Plaintiff had taken no action, the Court entered
th~ee show cause orders why this case should not be dismissed for her failure to
prosecute. (See 0.1. 16, 19, 22). Thus, the first factor weighs against the entry of
default.

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Second, Defendants have apprised the Court of a meritorious defense (e.g.,
Plaintiff was tr~ated fairly at all times and provided with the requested accommodations)
that would provide a complete defense if proved at trial. See $55,518.05 728 F.2d at
195.
Third, the Court cannot say that the default was the result of Defendant's
culpable conduct. "In this context, culpable conduct means actions taken willfully or in
bad faith." Gross v. Stereo Component Sys., Inc., 700 F.2d 120, 123-24 (3d Cir.
1983). Notably, when Defendant received notice of the hearing on default judgment, it
investigated the matter and, upon learning of this action, took prompt action. The
Court finds that under the circumstances there is insufficient evidence on the record to
find willfulness or bad faith. Therefore, the Court concludes that entry of default is not
warranted because Plaintiff has not established prejudice, Defendants has a
meritorious defense, and there is insufficient evidence of culpable conduct by
Defendant. The entry of default will be vacated.
Finally, the Court addresses the issue of service. Plaintiff complied with the
Court's service order. Of note is that Plaintiff proceeds pro se, has been granted leave
to proceed in forma pauperis, and relies upon the USMS to effectuate service.
Defendant contends that it was not properly served because the assets of Plaintiff's
former place of employment were sold to ?-Eleven, the transaction having taken place
on January 23, 2018. From the filings it appears that the .location continues to operate
as a "Sunoco branded fuel outlet" which seems to indicate that Sunoco fuel is sold at

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the location and, to the casual observer, the property is a Sunoco bu.siness. 2 (See D.I.
32-2 at 3).
The USMS first mailed the service packet to the location where Plaintiff had
been employed, and Defendant did not return the waiver of service. The USMS then
personally delivered the service packet to the location of Plaintiff's former employment,
where it was accepted by a person who seems to have ide~tified himself as the
manager. (D.I. 18). Defendant indicates that, at the time of personal service, ?-Eleven
employed a sales associate named Jonathan, but it was unable to locate a copy of the
summons and complaint. (D.I. 32-3 at ,r 5) The Court relies upon the USMS return
of service. Defendant provided no explanation why service was accepted by "manager
John" if he was not authorized to do so nor any explanation why the service documents
were not kept other than to state that they could not be located.
Pursuant to Fed. R. Civ. P. 4(d), Defendant was required to waive service. It
did not. Rule 4(d) affirmatively imposes the "duty to avoid unnecessary expenses of
- serving the summons" upon the defendant. Id. The USMS then sought to personally
serve Defendant and, considering the foregoing, it appeared Defendant had been
served. In light of the posture of this case, Plaintiff will be given another opportunity to
personally serve Defendant.
Finally, if the address where "manager John" accepted the service packet is not
the correct address for service of Defendant, then Defendant shall advise the Court of

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The Court notes that an image of the location captured by Google maps in June 2018
continued to bear the Sunoco sign. See https://www.google.com/maps/place/520+Jfk
+Memorial+Hwy,+Newark,+DE+19702/@39.6646845,-75.6886733,3a,75y, 119.91 h,85. ·
05t/data=!3m6!1e1!3m4!1sBd1Hv-6ZR9Virlwlt8R1YQ!2e0!7i13312!8i6656!4m5!3m4!1s
0x89c707355a279469:0x1727e2689596e4df!8m2!3d39.6641122!4d-75.6887246 (last
visited July 1, 2019).
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the correct address to effect service. In the alternative, given that it now has notice of
this action, Defendant may opt to waive service by notifying the Court in writing.

CONCLUSION
For the above reasons, the Court will: (1) grant Defendant's motion to vacate
default (D.I. 31); (2) vacate the April 23, 2019 entry of default (D.I. 25); (3) deny
Plaintiff's request for default judgment (D.I. 26); (4) cancel the August 19, 2019 hearing
on default judgment (D.I. 28); and (5) order Defendant to advise the Court if it will waive
service or, if service is required, to provide the correct address so that the USMS may
effect service.
An appropriate order will be entered.

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