List et al v. Carwell et al

Filing 76

ORDER granting 62 Motion to Set Aside Default; denying 73 Motion to Strike Pleading. (Written Opinion) Signed by Senior Judge David S. Doty on 10/11/2019. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 18-2253 (DSD/TNL)
Jason List and Alicia List,
Plaintiffs,
and
Troy Fiedler and Jodi Fiedler,
Plaintiff Intervenors,
v.

ORDER

Robert Carwell, an individual,
and 0820527 B C LTD d/b/a Let It Ride
Carriers, a foreign corporation,
Defendants.

Michael D. Bornitz, Esq., 140 North Phillips Avenue, 4th
Floor, P.O. Box 1400, Sioux Falls, SD 57101-1400, counsel for
plaintiffs.
L. Michael Hall, III, Esq. and Hall Law PA, 1010 W. St.
Germain Street, Suite 100, St. Cloud, MN 56301, counsel for
plaintiff intervenors.
Stanley E. Siegel, Jr. Esq., Pharoah Johan Lewis, Esq. and
Nilan Johnson Lewis, 120 South 6th Street, Suite 400,
Minneapolis, MN 55402, counsel for defendants.

This

matter

is

before

the

court

upon

defendant

Robert

Carwell’s motion to vacate or set aside the entry of default and
plaintiffs Jason and Alicia List’s motion to strike.

Based on a

review of the file, record, and proceedings herein, and for the
following reasons, Carwell’s motion to set aside the entry of
default is granted and the motion to strike is denied.

BACKGROUND
In September 2015, Carwell, a Canadian citizen, was driving
a truck owned by his employer and co-defendant 0820527 B C LTD
d/b/a Let It Ride Carriers (Let it Ride) when he was involved in
an accident in Minnesota with a vehicle driven by Troy Fiedler.
Jason List was a passenger in the vehicle, and he, Fiedler, and
co-passenger Jodi Fiedler were allegedly injured in the crash.
On August 1, 2018, plaintiffs filed suit against Let It Ride
and Carwell alleging negligence, negligence per se, respondeat
superior, and loss of consortium.

Carwell, who was unrepresented

by counsel at the time, was properly served with the summons and
complaint on September 5, 2018.

Shortly thereafter, Carwell went

to a remote area of Canada for several months to care for a sick
relative.

Not understanding that he needed to act on the summons

and complaint, Carwell failed to respond to the lawsuit filed
against him.

Plaintiffs moved for the entry of default, which the

clerk of court granted on October 11.
proceedings

have

plaintiffs

sought

At no point in these

default

judgment

against

Carwell.
Throughout

late

2018

and

attempted to serve Let It Ride.

early

2019,

plaintiffs

also

In January 2019, Let It Ride,

through its present counsel who had also recently been retained to
represent Carwell, waived service and on February 19, 2019, Let It
Ride filed an answer.

It was around that time that Carwell’s
2

counsel discovered the entry of default.

Counsel spent the next

few months trying to contact Carwell, but was unable to do so given
his extended stay in a remote area of Canada.

When Carwell’s

counsel finally reached him in April 2019, Carwell explained why
he had failed to respond to the lawsuit.
In June 2019, Troy and Jodi Fiedler filed an unopposed motion
to intervene in this suit, which the court granted.

On July 23,

2019, the Fiedlers filed their complaint against Let It Ride and
Carwell alleging many of the same claims as plaintiffs.

Both Let

It Ride and Carwell timely answered, and the court issued an
amended pretrial scheduling order expanding the time for discovery
and setting a new date for trial.
Carwell now moves to vacate or set aside the entry of default
against him so that he may fully defend himself against both the
plaintiffs’ and the Fiedlers’ claims.

Plaintiffs move to strike

a portion of Carwell’s reply memorandum and an affidavit filed in
support of his motion.

DISCUSSION
I.

Motion to Vacate or Set Aside Entry of Default
A “court may set aside an entry of default for good cause.”

Fed. R. Civ. P. 55(c).

“When examining whether good cause exists,

the ... court should weigh whether the conduct of the defaulting
party was blameworthy or culpable, whether the defaulting party
3

has a meritorious defense, and whether the other party would be
prejudiced if the default were excused.” Stephenson v. El–Batrawi,
524 F.3d 907, 912 (8th Cir. 2008) (citation and internal quotations
marks omitted).

Although the court considers the same factors in

determining whether to set aside a default judgment under Fed. R.
Civ. P. 60(b), relief from a mere entry of default requires a less
stringent
judgment.

showing

than

that

required

to

set

aside

a

default

Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783

(8th Cir. 1998).
A. Blameworthy or Culpable Conduct
The court “focus[es] heavily on the blameworthiness of the
defaulting party,” and “distinguish[es] between contumacious or
intentional delay or disregard for deadlines and procedural rules,
and a ‘marginal failure’ to meet pleading or other deadlines.”
Johnson, 140 F.3d at 784.

“‘[E]xcusable neglect’ includes ‘late

filings caused by inadvertence, mistake or carelessness.’”

Id.

(quoting Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380,
388 (1993)).
decision

that

Whether the conduct is excusable “is an equitable
‘tak[es]

account

of

surrounding the party’s omission.’”
U.S. at 388).

all

relevant

circumstances

Id. (quoting Pioneer, 507

Courts have considered “the reason for the delay,

including whether it was within the reasonable control of the [Rule
55(c)] movant, and whether the movant acted in good faith.”
(quoting Pioneer, 507 U.S. at 395).
4

Id.

Plaintiffs argue that Carwell’s failure to respond to the
complaint was based on a mistake of law, which does not constitute
“excusable neglect” warranting the setting aside of an entry of
default. The cases plaintiffs rely on, however, including Ceridian
Corp. v. SCSC Corp., 212 F.3d 398 (8th Cir. 2000); In re Scenic
View Properties, LLC, Civ. No 12-6022, 2012 WL 4898761 (D. Minn.
Oct. 16, 2012); and Core Distribution, Inc. v. Xtreme Power (USA)
Inc., Civ. No. 15-1547, 2016 WL 2733407 (D. Minn. May 10, 2016),
are inapposite.
First, all three cases dealt with attempts to set aside a
default judgment under Fed. R. Civ. P. 60(b), which requires a
stronger showing to set aside than that required under Rule 55(c).
See Johnson, 140 F.3d at 873.

Second, both Ceridian and Core

Distribution involved mistakes of law made by attorneys or legally
sophisticated parties.
*6.

See 212 F.3d at 403; 2016 WL 2733497, at

In both cases, the fact that such mistakes were made by

individuals who should have known better factored into the court’s
decision not to set aside the default judgments. See 212 F.3d at
403–04; 2016 WL 2733497, at *6.
Here, Carwell is not similarly sophisticated or experienced
in legal matters.

Carwell is a Canadian citizen who is unfamiliar

with the legal system and was who pro se at the time of service.
The court will not hold Carwell to the same standard as an
attorney.

There is no evidence that he was intentionally seeking
5

to thwart plaintiffs’ lawsuit against him by failing to respond.
Rather, Carwell was apparently unreachable and did not fully
understand that he needed to respond to the lawsuit or how to do
so.

As such, the court finds that Carwell was not blameworthy or

culpable in failing to respond.
B. Meritorious Defense
In setting forth a meritorious defense, a defendant need not
show that he will succeed on the merits, but rather only that “the
proffered evidence would permit a finding for the defaulting
party.”

Johnson, 140 F.3d at 785 (citation and internal quotation

marks omitted).

“The underlying concern is ... whether there is

some possibility that the outcome ... after a full trial will be
contrary to the result achieved by the default.”

Stephenson, 524

F.3d at 914 (citations and internal quotation marks omitted).
Carwell has set forth two meritorious defenses.

First, he

alleges that Troy Fiedler’s negligence caused the crash; second,
he claims that a third party improperly maintained his vehicle,
which contributed to the crash. Plaintiffs argue that the accident
report and Carwell’s alleged actions and statements after the crash
undermine

both

however,

is

stated

not

defenses.

whether

The

Carwell’s

issue

at

proffered

his

juncture,

defenses

are

undisputed, but whether they would permit a finding in his favor.
Johnson, 140 F.3d at 785.

Carwell’s defenses would, if borne out

by the facts adduced during discovery, permit a finding that he is
6

not liable for the crash.

For present purposes then, Carwell has

stated a meritorious defense.
C. Prejudice
To determine whether prejudice exists, the court considers
factors such as “loss of evidence, increased difficulties in
discovery, or greater opportunities for fraud and collusion.”

Id.

“[P]rejudice may not be found from delay alone or from the fact
that the defaulting party will be permitted to defend on the
merits,” requiring the plaintiff to expend further resources. Id.;
see also Johnson v. Allied Excavating, Inc., Civ. No. 15-3237,
2017 WL 1194196, at *8 (D. Minn. Mar. 30, 2017).
Plaintiffs argue that they would be prejudiced if the entry
of default is set aside because it would delay the already amended
discovery and trial schedule and they would be forced to expend
further resources to prove Carwell’s liability.

They further

allege that defendants have already shown a propensity for fraud
and collusion because both Carwell and the owner of Let It Ride
have cited health issues — either their own or those of family
members — as their reason for delay on certain aspects of the case.
There is no evidence that either defendant is lying with regard to
these health concerns, thus the court finds this allegation of
fraud and collusion to be unwarranted. 1

Because the rest of

Plaintiffs have submitted evidence in an effort to show
that Carwell may be lying about having been unreachable in a remote
1

7

plaintiffs’ prejudice claims relate to delay and increased costs
— claims insufficient for a finding of prejudice, see Johnson, 140
F.3d at 785 — the court is satisfied that plaintiffs will not be
prejudiced by setting aside the entry of default against Carwell.
II.

Risk of Inconsistent Judgments
In addition to there being “good cause” to set aside the entry

of

default,

failing

to

inconsistent judgments.
recognized

that

do

so

here

may

inconsistent

verdicts

U.S. (15 Wall.) 552, 554 (1872).
principle

to

Carwell

to

The United States Supreme Court has
between

defendants is “incongruous and illegal.”

this

expose

situations

jointly

liable

Frow v. De La Vega, 82

The Eighth Circuit has extended
in

which

there

is

a

risk

of

inconsistent judgments between defendants who are jointly and
severally liable.

U.S. ex rel. Costner v. United States, 56 F.

App’x 287, 288 (8th Cir. 2003).
Here,

Carwell

faces

the

risk

of

inconsistent

judgments

against him if the default is not set aside because plaintiffs and
the Fiedlers have both brought negligence claims against Carwell.
Given that Carwell timely answered the Fiedlers’ complaint, he now

area of Canada. They have provided the court with a graph showing
that “Internet user penetration in Canada” was 94.7% in 2018. ECF
69, Ex. 2. This graph, however, merely shows the “percent of the
Canadian population [that] used the [I]nternet.” See id. Just
because a high percentage of the Canadian population used the
Internet at some point in 2018 does not mean that all of Canada
has Internet access. The graph is therefore unhelpful.
8

has the opportunity to defend against a finding that he negligently
caused the crash and he could prevail.
Plaintiffs argued at the hearing that there is no risk of
inconsistent judgments because plaintiff Jason List was merely a
passenger in the vehicle whereas intervenor Troy Fiedler was the
driver.

The implication seems to be that, based on Carwell’s

alleged defense that Fiedler’s driving contributed to or caused
the crash, Carwell could somehow be found not liable for causing
the crash, and thus the Fiedlers’ injuries, but liable for causing
the crash and for List’s injuries. The court fails to see how that
could occur.

Because the Fiedlers and Jason List were in the same

car, if Carwell is not found to have negligently caused the crash
with regard to the Fiedlers’ claims, he simply cannot be found to
have negligently caused the crash with regard to plaintiffs’
claims.

Therefore, Carwell’s liability for causing the crash — if

any — applies equally to the Fiedlers and plaintiffs.

Maintaining

the entry of default could result in liability as to the Lists but
no liability as to the Fiedlers.

The possibility of such a result

in untenable.
III. Motion to Strike
As this district has routinely observed, motions to strike
are only applicable to pleadings.

See, e.g., Great Lakes Gas

Trans. Ltd. P’ship v. Essar Steel Minn. LLC, Civ. No. 09-3037,
2011

WL

1486033,

at

*2

(D.

Minn.
9

Apr.

19,

2011)

(quotation

omitted); Carlson Mktg. Grp. v. Royal Indem. Co., Civ. No. 043368, 2006 WL 2917173, at *2 (D. Minn. Oct. 11, 2006) (finding a
motion to strike an affidavit in support of a motion improper);
VanDanacker v. Motor Sales Co., 109 F. Supp. 2d 1045, 1047 (D.
Minn.

2000)

(denying

a

motion

to

strike

as

inapplicable

to

memoranda in support of a motion).
Here, plaintiffs seek to strike a portion of Carwell’s reply
memorandum and affidavit in support of his claims of a meritorious
defense.

Because

Carwell’s

reply

memorandum

and

associated

affidavit are not a pleading subject to a motion to strike, the
court denies plaintiffs’ motion as procedurally flawed.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Carwell’s motion to set aside the entry of default [ECF
No. 62] is granted; and
2. Plaintiffs’ motion to strike [ECF No. 73] is denied.

Dated: October 11, 2019
s/David S. Doty
David S. Doty, Judge
United States District Court

10