Penton v. Daigle Towing Service, L.L.C. et al
Filing
19
ORDER granting 9 Motion to Set Aside Default. Signed by Chief Judge Sarah S. Vance on 7/23/12. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT PENTON
CIVIL ACTION
VERSUS
NO: 12-799
DAIGLE TOWING SERVICE, LLC
and ALBERT & JUDY, LLC
SECTION: R
ORDER AND REASONS
Defendants Daigle Towing Service, LLC and Albert & Judy, LLC
(collectively, “Albert & Judy”) move the Court to set aside the
default entered against them.1 Because defendants have shown good
cause, the Court GRANTS the motion.
I.
BACKGROUND
This dispute arises out of an accident in which plaintiff, a
third captain employed by defendants, allegedly fell while
attempting to pull a starboard cable from the winch aboard the
M/V Baroid, a vessel owned by defendants. Plaintiff contends that
the cable jammed, causing his fall and the resulting injuries to
his spine. He sues defendants for negligence and the
unseaworthiness of the vessel.2
1
R. Doc. 9. Defendants have styled their motion as one
to set aside a default judgment. As a judgment has not yet been
entered, the Court will interpret defendants’ motion as a request
to set aside the default. See Fed. R. Civ. P. 55(c) (noting that
a court may set aside an entry of default for good cause, and may
set aside a default judgment under Rule 60(b)).
2
R. Doc. 1.
Defendants’ responsive pleadings were due on April 17, 2012.
When they failed to file an answer by that date, plaintiff moved
for an entry of default,3 which the Clerk of Court granted on May
7, 2012.4 Defendants moved to set aside the default three days
later on May 10,5 filed an answer on May 30 that was stricken
because of a deficiency,6 and filed a corrected answer on June
11.
In their motion to set aside the default, defendants cite
two principal causes for failing to answer plaintiff's complaint
within the allotted time. First, they point to “human error,”
contending that they received but overlooked the summons,
believing that the lawsuit had been forwarded to appropriate
persons. Second, defendants contend that although plaintiff's
counsel was in regular contact with defendants' adjuster,
plaintiff's counsel never mentioned that he had filed suit
against defendants. Rather, the adjuster learned of the suit
during a discussion with a plaintiff's counsel's paralegal on May
9, two days after the Clerk of Court had entered the default.
Defendants contend, therefore, that plaintiff’s counsel shares in
the blame.
3
R. Doc. 7.
4
R. Doc. 8.
5
R. Doc. 9.
6
R. Doc. 12.
2
Plaintiff opposes defendants’ motion.7 He notes that service
was proper, and argues that the Court should not set aside the
default based merely on the defendants’ unsupported claims of
“human error.”
II.
STANDARD
Rule 55(c) provides that “[t]he court may set aside an entry
of default for good cause, and it may set aside a default
judgment under Rule 60(b).” Fed. R. Civ. P. 55(c). In determining
whether good cause exists to set aside an entry of default, the
Court considers: “(1) whether the failure to act was willful; (2)
whether setting the default aside would prejudice the adversary;
and (3) whether a meritorious claim has been presented.” Effjohn
Int’l Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 563
(5th Cir. 2003). These factors are not exclusive but used instead
as a means to identify good cause, and “other factors may be
considered, such as whether the party acted expeditiously to
correct the default.” Id.
III. DISCUSSION
Having considered the parties’ arguments, the Court grants
defendants’ motion to set aside the default. First, there is no
7
R. Doc. 17.
3
evidence that the defendants willfully delayed in answering
plaintiff’s complaint, not does plaintiff even suggest a willful
delay. By all accounts, the delay was merely negligent, and could
have been avoided had plaintiff’s counsel alerted defendants’
adjuster when defendants did not immediately file responsive
pleadings. Cf. Blois v. Friday, 612 F.2d 938, 940 (5th Cir. 1980)
(deciding, on a motion to vacate judgment under Federal Rule of
Civil Procedure 60(b), that “the plaintiff should not be punished
for his attorney's mistake absent a clear record of delay,
willful contempt or contumacious conduct”). Even if there were
some evidence of willfulness, “any doubt should, as a general
proposition, be resolved in favor of ... securing a trial upon
the merits.” Jenkens & Gilchrist a Prof'l Corp. v. Groia & Co.,
542 F.3d 114, 123 (5th Cir. 2008).
Further, defendants were expeditious in moving to correct
the default only three days after its entry. They filed an answer
(albeit a deficient one) three weeks later, and filed a corrected
answer less than two weeks after that. Plaintiff has failed to
explain how setting aside the default after a modest delay in the
early stages of litigation would cause him any prejudice. See
Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000) (noting
that “mere delay does not alone constitute prejudice,” and a
plaintiff must show that the delay “will result in the loss of
evidence, increased difficulties in discovery, or greater
4
opportunities for fraud and collusion”); Lambert v. Bd. of
Comm’rs of the Orleans Levee Dist., 2006 WL 1581262, at *3 (E.D.
La. 2006) (no prejudice to plaintiff when litigation is in its
early stages).
Finally, the Court finds that defendants have potentially
meritorious defenses as to plaintiff’s allegations of liability,
causation, and damages. Discrepancies between the complaint on
one hand, and the accident report and initial medical evaluation
on the other, present some uncertainty as to the actual events
that led to the accident.8 For example, the complaint alleges
that the plaintiff fell when the cable jammed unexpectedly, while
the accident report and medical evaluation contain no mention of
a fall, nor an unexpected jamming of the cable. Fact discovery
should indicate whether any fault for the incident is
attributable to plaintiff’s negligence. Further, medical
discovery should indicate whether the alleged injury is actually
attributable to a past back injury for which plaintiff underwent
a lumbar fusion in 2001, and whether plaintiff will be able to
return to work aboard vessels in the future.
“Defaults are not favored and their strict enforcement has
no place in the Federal Rules.” Effjohn, 346 F.3d at 563
(internal quotation marks omitted). Thus, the good cause
requirement “has generally been interpreted liberally.” Id. The
8
Compare R. Doc. 1 at 2 with R. Doc. 9-3 at 11-14.
5
Court finds that defendants have shown good cause for setting
aside the entry of default in this case.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS the motion to
set aside default entered against defendants on May 7, 2012.
New Orleans, Louisiana, this 23rd day of July, 2012.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
6
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