Lath v. Manchester Police Department et al
ORDER denying 50 Motion for Default Judgment; granting in part and denying in part 116 Motion to Dismiss. Dufresnes motion to set aside his default is granted to the extent that his default is set aside, but is denied to the extent that he seeks dismissal of the claims against him. That denial is without prejudice to Dufresnes filing a proper motion to dismiss Causes 17 and 19, pursuant to Rule 12(b)(6). So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-534-LM
Opinion No. 2017 DNH 155
Manchester Police Department,
Gerard Dufresne, Dorothy Vachon
BMS CAT, and Amica Mutual
O R D E R
This case now consists of one federal claim against the
Manchester Police Department, brought through the vehicle of 42
U.S.C. § 1983, and state law claims against all five defendants.
On February 22, 2017, Sanjeev Lath moved for default judgment
against Gerard Dufresne.
See doc. no. 50.
On March 21, 2017,
default was entered against Dufresne, in accordance with Rule
55(a) of the Federal Rules of Civil Procedure (“Federal Rules”)
and Local Rule 55.1.
See doc. no. 73.
On July 25, 2017,
Dufresne filed a pleading captioned “Motion to Dismiss Defendant
Gerard Dufresne of Default,” document no. 116.
For the reasons that follow, Dufresne’s default is set aside,
and Lath’s motion for default judgment is denied.
As noted, the default against Dufresne was entered pursuant
to Rule 55(a).
The Federal Rules also provide that “[t]he court
may set aside an entry of default for good cause.”
Fed. R. Civ.
Rule 55(c), in turn, “as an ‘express[ion of] the
traditional inherent equity power of the federal courts,’
permits the consideration of a panoply of ‘relevant equitable
KPS & Assocs., Inc. v. Designs by FMC, Inc., 318
F.3d 1, 12 (1st Cir. 2003) (quoting 10A Wright, Miller & Kane,
Federal Practice and Procedure: Civil 3d § 2692 (1998); Enron
Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)).
court went on to describe the competing values and policies that
are served by the procedural mechanism of default:
On the one hand, it “provide[s] a useful remedy when a
litigant is confronted by an obstructionist
adversary,” and “play[s] a constructive role in
maintaining the orderly and efficient administration
of justice.” Enron, 10 F.3d at 96. It furnishes an
invaluable incentive for parties to comply with court
orders and rules of procedure. See Fed. R. Civ. P.
37(b)(2)(C). It encourages the expeditious resolution
of litigation and promotes finality. See Wright,
Miller & Kane, supra, § 2693. On the other hand,
countervailing considerations include the goals of
“resol[ving] cases on the merits,” Key Bank of Me. v.
Tablecloth Textile Co., 74 F.3d 349, 356 (1st Cir.
1996), and avoiding “harsh or unfair result[s].”
Enron, 10 F.3d at 96.
318 F.3d at 12–13.
The KPS court also identified the following
factors that a court may consider when determining whether to
set aside a default:
(1) whether the default was willful; (2) whether
setting it aside would prejudice the adversary; (3)
whether a meritorious defense is presented; (4) the
nature of the defendant’s explanation for the default;
(5) the good faith of the parties; (6) the amount of
money involved; (7) the timing of the motion [to set
aside entry of default].
Id. at 12 (quoting McKinnon v. Kwong Wah Rest., 83 F.3d 498, 503
(1st Cir. 1996)).
Under the circumstances of this case, Dufresne’s default
should be set aside.
Dufresne is appearing pro se.
He is a
defendant in this case and in 16-cv-463-LM, both of which were
filed by Lath, and Dufresne has actively participated in the
litigation of 16-cv-463-LM.
Lath himself has on multiple
occasions conflated this case with 16-cv-463-LM by filing
documents in one case that actually pertain to the other one.
Thus, Dufresne’s failure to answer Lath’s complaint in this case
is less likely due to willful conduct and more likely the result
of a litigation landscape that has been complicated by Lath’s
This case is still in the early stages of litigation, and
the only “prejudice” to Lath that will result from setting aside
Dufresne’s default will be the loss of what amounts to a
windfall resulting from a pro se defendant’s apparent confusion
in the face of a case that is being prosecuted in a way that
appears to foster confusion.
Moreover, while default was
entered against Dufresne for failing to abide by the Federal
Rules, he has not violated any court order, and there is nothing
in the record that suggests that he is acting as an
“obstructionist adversary,” KPS, 318 F.3d at 13.
court can discern no basis for concluding that Dufresne has been
operating in bad faith.
In short, the equities of this case and
the court’s general preference for resolving cases on their
merits both counsel in favor of setting aside Dufresne’s
Accordingly, Dufresne’s default is set aside, and document
no. 116 is construed as an answer to Lath’s First Amended
Complaint, document no. 24, which is the operative complaint in
That said, the court cautions Dufresne that as this
case moves forward, he should take care to abide by the
applicable rules of procedure, and should not count on the
court’s willingness to overlook future procedural miscues.
Finally, in the interest of clarity, the court notes that
Lath has asserted only two claims in this case against Dufresne:
(1) a claim for unlawful wiretapping, in violation of New
Hampshire Revised Statutes Annotated (“RSA”) 570-A, asserted in
Cause 17; and (2) a claim for civil conspiracy, asserted in
Those are the only claims against which Dufresne must
That said, the court observes that at several
points in document no. 116, Dufresne appears to argue that
Lath’s claims against him should be dismissed.
He does not,
however, make any arguments that are cognizable under Rule
12(b)(6) of the Federal Rules.
Thus, dismissal of Lath’s claims
against Dufresne is not appropriate at this point.
In sum, Lath’s motion for default judgment, document no.
50, is denied, and Dufresne’s motion to set aside his default,
document no. 116, is granted to the extent that his default is
set aside, but is denied to the extent that he seeks dismissal
of the claims against him.
That denial is without prejudice to
Dufresne’s filing a proper motion to dismiss Causes 17 and 19,
pursuant to Rule 12(b)(6) and the case law that interprets that
United States District Judge
August 16, 2017
Kevin E. Buchholz, Esq.
Gary M. Burt, Esq.
Gerard Dufresne, pro se
Sanjeev Lath, pro se
Bruce Joseph Marshall, Esq.
Sabin R. Maxwell, Esq.
Richard C. Nelson, Esq.
Brendan D. O’Brien, Esq.
James G. Walker, Esq.
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