Brightwell v. Hershberger et al

Filing 204

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/8/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DAVID BRIGHTWELL
:
v.

:

Civil Action No. DKC 11-3278

:
GREGG L. HERSHBERGER, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion to
vacate the entry of default filed by Defendant David Miller
(“Defendant”) (ECF No. 201).

The issue has been fully briefed,

and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.

For the following reasons, Defendant’s motion

to vacate entry of default will be granted.
I.

Background1
A

found

complete
in

the

judgment.

(See

recitation

of

court’s

prior

ECF

183,

No.

the

factual

memorandum
at

2-8).

background

opinion
For

on

purposes

can

be

summary
of

the

instant motion, it is sufficient to note that Defendant is one
of several correctional officers accused of assaulting Plaintiff
David

Brightwell

(“Plaintiff”),

a

prisoner

Correctional Institution (“RCI”), in 2011.

1

at

the

Roxbury

(Id. at 6).

Unless otherwise noted, the facts in this opinion are
undisputed.

Plaintiff’s original complaint referred to a “CO II Miller”
and was served on Correctional Officer Aaron Miller on January
30, 2012.

(ECF No. 11, at 1).

clarified

that

the

officer

Miller, not Aaron Miller.

On February 20, 2013, Plaintiff

he

intended

(ECF No. 68).

to

accuse

was

David

In response, the court

directed the clerk to amend the docket to reflect that David
Miller was the proper defendant and to dismiss the complaint as
to Aaron Miller.
Defendant

(ECF No. 69, at 1).

resigned

from

RCI

on

July

6,

2013,

and

was

therefore in a different position at the beginning of the case
than the other defendants, who were being represented by the
State (the “State Defendants”).

(ECF No. 201-2, at 4).

16, 2014, a separate summons was issued for Defendant.
96).

On May
(ECF No.

The summons was filed with the court as executed that same

day at 4:30pm at Defendant’s home address.

(ECF No. 101).

The

process server noted that “David Scott Miller is White Male,
Approx. 40 years old. 6’1” 210 lbs. Black hair No glasses.”
(Id.).

No

answer

was

received

from

Defendant

Miller,

and,

eventually, on Plaintiff’s motion, the clerk entered a default
for want of answer against him on April 20, 2015.

(ECF Nos.

113; 121).
Under the discovery deadlines agreed to by the remaining
parties, depositions were to be completed by August 31, 2015,
and dispositive motions were due by September 30, 2015.
2

(ECF

No.

134).

On

September

22,

Plaintiff

served

a

subpoena

Defendant to appear for a deposition on October 8.
139, at 1).

on

(ECF No.

After learning of this subpoena, counsel for the

State Defendants in this case (“State Counsel”) asked to extend
the dispositive motion deadline until after that deposition was
taken.

Defendant was not represented by the State Counsel at

the time, and State Counsel indicated that he had “no idea what
[Defendant]

w[ould]

say.”

(ECF

No.

145-2,

at

30).

State

Counsel then filed a consent motion for an extension of time for
dispositive

motions

“to

allow

for

Plaintiff

to

complete

Defendant Miller’s deposition before the filing of a motion for
summary judgment.”

(ECF No. 139, at 1).

Defendant attended the October 8 deposition and, allegedly,
found out for the first time that he was a Defendant in the
case.

(ECF No. 148-1, at 2).

After Defendant consulted with

State Counsel at the deposition, Defendant and State Counsel
asked to postpone the deposition in order to confirm whether the
State could represent him.
to

Plaintiff’s

attorney

(Id.).
the

next

State Counsel sent an email
day

indicating

that

State

Counsel had agreed to represent Defendant and asking whether
Plaintiff would consent to vacating the default against him.
(Id. at 8).

Plaintiff refused to consent.

(Id. at 3).

When Plaintiff sought to reschedule Defendant’s deposition
that

November,

State

Counsel
3

objected

because

the

State

Defendants had already filed their motion for summary judgment
(ECF No. 145-2, at 23-25).2

on October 23.

In spite of State

Counsel’s objection, Plaintiff served a subpoena on Defendant on
November 25; the State Defendants then filed a motion to quash,
which was briefed by the parties.

(ECF Nos. 145; 148; 149).3

The court denied the motion to quash because, inter alia, the
State Defendants had initially consented to the deposition of
Defendant prior to the submission of their motion for summary
judgment,

but

completed

by

postponed.

State

Counsel

requesting

had

prevented

the

October

that

(ECF No. 150, at 5-6).

then scheduled for January 6, 2016.

it
8

from

being

deposition

be

Defendant’s deposition was
(Id. at 3).

Defendant failed to appear for his deposition on January 6,
and Plaintiff’s counsel moved the court to compel his attendance
at a deposition.

(ECF No. 154, at 2-3).

The court granted

Plaintiff’s motion and directed Defendant to attend a deposition
on February 25, and to show cause by February 19 as to why the
court should not hold him in contempt for his failure to comply
with the previous subpoena.

(ECF No. 162).

The U.S. Marshal

Service executed the subpoena for the February 25 deposition
2

In the State Defendants’ motion for summary judgment,
State Counsel again declared that it had agreed to represent
Defendant. (ECF No. 141-1, at 17).
3

In the motion to quash, State Counsel again indicated that
it had agreed to represent Defendant, but also acknowledged that
Defendant had not signed the formal agreement. (ECF No. 145-2).
4

(ECF No. 167), but Defendant failed to respond to the show cause
order or to appear for his February deposition.

(ECF No. 169).

On Plaintiff’s motion, the court found Defendant in contempt of
court and issued a bench warrant to bring him into court unless
Defendant

arranged

a

time

counsel by March 18.
called

Plaintiff’s

arrangements
Defendant

for

did

not

(Id.).

counsel
a

for

a

with

Plaintiff’s

On March 18, Defendant’s fiancé
to

say

deposition.
call

deposition

back

the

that
(ECF

he
No.

following

wished

to

174).

make

Although

business

day

as

instructed, Defendant eventually made contact with Plaintiff’s
counsel.

Unfortunately, the time that Plaintiff and Defendant

agreed upon was unworkable for State Counsel, who still did not
formally represent him but sought to attend on behalf of the
State Defendants.

(ECF No. 176).

After attempting to contact

Defendant to reschedule several more times, Plaintiff filed a
motion to issue a bench warrant to bring him to court for a
deposition.

(ECF No. 176).

The court issued the bench warrant

and directed Defendant to appear before the court on April 27.
(ECF No. 178).
that day.
That

Defendant appeared on April 27 and was deposed

(ECF No. 179).
same

day,

Defendant

entered

representation agreement with State Counsel.
2).

into

a

legal

(ECF No. 201-2, at

More than five months later, on September 30, State Counsel

told the court on a conference call that it intended to file a
5

motion to set aside the default against him.
5).

(ECF No. 201-1, at

On October 14, Defendant filed the present motion.

No. 201).

Plaintiff responded, and Defendant replied.

(ECF
(ECF

Nos. 202; 203).
II.

Standard of Review
Pursuant to Fed.R.Civ.P. 55(c), a court may “set aside an

entry of default for good cause.”

Because the United States

Court of Appeals for the Fourth Circuit has a “strong policy
that cases be decided on their merits,” United States v. Shaffer
Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993), a motion to set
aside

a

default

must

be

“‘liberally

construed

in

order

to

provide relief from the onerous consequences of defaults and
default judgments,’” Colleton Preparatory Acad., Inc. v. Hoover
Universal,

Inc.,

616

F.3d

413,

421

(4th

Cir.

2010)

(quoting

Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969)).

As a

result, “[a]ny doubts about whether relief should be granted
should be resolved in favor of setting aside the default so that
the case may be heard on the merits.”

Tolson, 411 F.2d at 130.

“Generally a default should be set aside where the moving
party acts with reasonable promptness and alleges a meritorious
defense.”

Consol.

Masonry

&

Fireproofing,

Constr. Corp., 383 F.2d 249, 251 (4th Cir. 1967).

Inc.

v.

Wagman

To establish a

meritorious defense, the moving party should proffer evidence
that would permit a finding for the defaulting party.
6

Augusta

Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d
808, 812 (4th Cir. 1988).

The following factors should also be

considered in considering a Rule 55(c) motion: “the personal
responsibility of the defaulting party, the prejudice to the
[other] party, whether there is a history of dilatory action,
and the availability of sanctions less drastic.”

Payne ex rel.

Estate of Calzada v. Brake, 439 F.3d 198, 204–05 (4th Cir. 2006).
III. Analysis
Here, some of the factors tilt in each direction.

“[A]ll

that is necessary to establish the existence of a ‘meritorious
defense’ is a presentation or proffer of evidence, which, if
believed, would permit either the Court or the jury to find for
the defaulting party.”
727 (4th Cir. 1982).

United States v. Moradi, 673 F.2d 725,

At his deposition, Defendant testified that

he has never assaulted anyone.

(ECF No. 201-2, at 9).

His

motion also appears to say that, despite Plaintiff’s statements
with regard to Aaron Miller, Defendant believes that Plaintiff
intends to accuse Aaron Miller, whose testimony shows that he
was present at the time of the alleged incident.
1, at 5).

(ECF No. 201-

Defendant suggests that, unlike Aaron Miller, he was

a control center officer who was not involved in floor level
operations.

(ECF 201-2, at 46).4

4

If a jury believed Defendant,

It is unclear from Defendant’s deposition whether he was
still working as a control center officer in 2011, when the
7

it could find in his favor, and therefore he has provided a
meritorious defense.
Defendant has not, on the other hand, acted with reasonable
promptness.

Defendant learned of his default no later than at

his October 8, 2015 deposition, but did not seek to vacate the
entry until this motion was filed on October 14, 2016, more than
a year later.

Defendant points to the October 9 email from

State Counsel to Plaintiff’s counsel asking whether he would
consent to vacating the entry of default.
8).5

(ECF No. 148-1, at

State Counsel gave no justification as to why Plaintiff

should have consented, and Defendant provides no explanation why
he did not file a motion with the court at that point.

(Id.).

Defendant points to Russell v. Krowne, No. DKC-08-2468, 2013 WL
66620, at *3 (D.Md. Jan. 3, 2013), to support his proposition
that a delay of more than a year is not unreasonable.
201-1, at 5).

(ECF No.

Defendant misreads Russell, which stated merely

that “[t]his delay, by itself, [wa]s not dispositive” in light
of the other factors.

Russell, 2013 WL 66620, at *3 (emphasis

assault at issue occurred.
Defendant stated that the control
center was his “regular post” in 2009, but that he had moved to
a “floating” floor position after being in Housing Unit 5 for
“almost five years” and some time before leaving RCI in 2012.
(ECF No. 201-2, at 9-10).
5

State Counsel also stakes out a precarious position here,
contending that an email from him prior to the signing of the
representation agreement should count in Defendant’s favor,
while denying responsibility for Defendant’s other delays prior
to signing the agreement.
8

added).

Such

a

statement

actually

implies

that,

if

the

remaining factors had gone the other way, a delay of one year
could

have

been

sufficient

to

show

a

lack

of

reasonable

promptness.
Prejudice

also

tips

in

Defendant’s

favor.

Because

his

deposition has already taken place and documents relating to his
employment

at

RCI

have

already

been

produced

by

the

State

Defendants, setting aside the default would not burden Plaintiff
moving forward.

The parties are set for trial beginning in

February, and vacating the default would not delay further court
action.

Given that Defendant is charged with the same conduct

as the remaining State Defendants and is now represented by
State Counsel, there should be little change in how the parties
proceed with their cases.
The next two factors focus on Defendant’s actions.

As

described above, Defendant has a significant history of dilatory
action in this case.

Plaintiff’s counsel and State Counsel have

both stated that Defendant repeatedly failed to respond to their
communications.

(ECF

Nos.

156,

at

2;

176,

at

1-3).

Even

assuming that he never received service of the amended complaint
in 2014, he continued to fail to respond to subpoenas and court
orders well after he had notice in October of 2015.

State

counsel previously made clear that Defendant has had similar
issues before.

(ECF No. 156, at 2).
9

Moreover, Defendant appears to be personally responsible
for the delayed motion to vacate and the problems securing his
deposition.

Prior cases considering this factor have focused on

whether the default, delay, or dilatory issues were caused by
the defaulting party or instead by his attorney.

See Augusta,

843 F.2d at 811 (emphasizing the difference between cases where
the “party alone is responsible” and those where the “attorney
alone is responsible”); Lolatchy v. Arthur Murray, Inc., 816
F.2d

951,

953

(4th

Cir.

1987)

(noting

that

the

defaulting

defendants’ attorney had been responsible for their delay).

In

Russell, the court also took note that the defaulting parties’
good

faith

actively

efforts,

sought

noting

representation

that

one

and

defaulting

another

party

party
had

had

engaged

with the court in attempts to file papers on his own behalf.
Russell, 2013 WL 66620, at *4.

Defendant here refused to sign

State Counsel’s representation agreement or to seek out another
attorney for more than six months after being given a copy of
the complaint at the October 8 deposition.

He failed to appear

for subpoenas or appropriately respond to court orders numerous
times during that period, and he has offered no explanation as
to why he failed to appear or respond.
State

Counsel,

Defendant

waited

Even after signing with

another

five

months

before

notifying the court of his intent to file a motion to vacate
during the teleconference on September 30, 2016. (ECF No. 201-1,
10

at 4-5).6

He appears to argue that the pending motion for

summary judgment by the State Defendants caused his delay from
October 23, 2015, until the court ruled on that motion on August
31, 2016, but he fails to explain why a motion to which he was
not a party prevented him from seeking to vacate his default.
(ECF No. 203, at 1-2).

All of these delays are even more

unreasonable in light of Defendant’s suggested defense that it
was Aaron Miller, and not he, who was present at the alleged
incident.
It should be noted that the analysis up until this point is
based on all of these issues the court and the parties had with
Defendant after October 8, 2015, when it is certain that he was
aware of the case against him.

Given his history, it seems

quite generous to accept his allegation that he did not recall
being served with the complaint in 2014 at face value, as the
court does here.

It may well be that he is being given a free

pass for another year and a half of deficient responses that
resulted in the entry of default.
Defendant’s saving grace in this case is the final factor,
the availability of lesser sanctions.

Neither party addresses

this factor at length – probably because Defendant is hoping to

6

To the degree that responsibility for this further delay
might be shared between Defendant and State Counsel, the court
sees no reason not to hold him accountable for this further
delay in light of Defendant’s own dilatory history.
11

avoid sanctions and Plaintiff is hoping to maintain Defendant’s
default.

Although Defendant has demonstrated an inappropriate

disregard for the court’s orders and procedure, the presence of
a meritorious defense and the lack of prejudice that vacating
the default would cause caution against maintaining his entry of
default rather than considering the merits of the case against
him.

Courts have made clear, however, that in such instances,

other sanctions, including contempt and monetary penalties, are
appropriate.

Augusta,

843

F.2d

at

811

(“[W]hen

a

default

judgment is vacated the trial court may nonetheless impose other
sanctions against the offending attorney, such as awarding the
non-movant’s costs and attorney’s fees.”); Lolatchy v. Arthur
Murray, Inc., 816 F.2d at 953 (suggesting that charging the
defaulting party with “all costs and expenses attendant to the
delay, including attorney’s fees” would be appropriate).

In

this case, Defendant has already been held in contempt of court,
and

much,

action

if

cannot

not
be

all,

of

blamed

his
on

extensive
State

history

Counsel.

of

dilatory

Under

these

circumstances, he should be held accountable for his actions in
a

meaningful

way.

Therefore

Defendant,

in

his

individual

capacity, will be ordered to pay all reasonable costs, expenses,
and Plaintiff’s attorney’s fees caused by his dilatory actions
after discovering that he was a Defendant on October 8, 2015,
including (1) his failure to appear at his January 6, 2016,
12

deposition, (2) Plaintiff’s motion to compel his attendance at
the February 25 deposition, (3) his failure to appear at the
February 25 deposition, (4) Plaintiff’s February 26 motion to
find him in contempt of court and issue a bench warrant, and (5)
Plaintiff’s April 11 motion to issue a bench warrant.7
IV.

Conclusion
For the foregoing reasons, the motion to vacate default

filed by Defendant David Miller will be granted.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

7

These sanctions will not include the costs associated with
the State Defendants’ motion to quash Plaintiff’s November 25,
2015 subpoena. Although the extensive period during which State
Counsel repeatedly expressed that it had agreed to represent
Defendant, but failed to secure his signed agreement is curious,
Defendant’s record before the court demonstrates that he has
been both difficult to reach and unwilling to participate in
this case. State Counsel’s motion to quash was thus reasonable
in light of its position at the time of its filing.
13