Price v. Kim et al

Filing 14

ORDER denying 10 Motion for Entry of Default. Signed by Chief Judge Terrence W. Boyle on 11/5/2020. Copy sent via US Mail to Randy Price 234 Lassiter Farms Ln., Clayton, NC 27520. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ORTH CAROLINA
WESTERN DIVISION
No: 5:20-CV-4 15-BO

RANDY PRICE,
Plaintiff,

)
)
)
)

vs.
ANN JOO KIM and ILGWU DEATH
BE EFIT FUND 3,
Defendants.

)
)
)
)
)
)

ORDER

This matter is before the Court on pro se plaintiffs motion for judgment by default [DE
10]. For the fol lowing reasons, the motion for judgment by default is DENIED.

BACKGROUND
Pro se plaintiff Randy Price commenced this action to obtain a death benefit fro m
defendant ILG WU Death Benefit Fund 3 (Fund), which he alleges violated its fiduciary obligations
pursuant to the Emp loyee Retirement Income Security Act of 1974, 29 U.S.C. § I 104(a), when
defendant Fund denied his claim fo llowing the death of his mother. [DE l]. Defendant Fund denied
payment of hi s mother's benefit on the bas is that "the claim was submitted after the time frame
the Fund allows. " Id. Defendant Fund ' s summary plan description states that legal process should
be served on Ann Joo Kim, fund admini strator, at an address in White Plains, New York. [DE 10].
Plaintiff filed the instant motion for entry of default on September 17, 2020 alleging the complaint
and summons were served on defendants through certified mail at an address in White Plains, New
York. id.

Defendants initiall y believed that thi s mail was never delivered to defendant Fund because
it had no receipt of the mailing and the mailing did not come to its attention. [DE 11]. However,
defendants have since discovered that the summons and complaint were received on August 3,
2020 at the building in which defendant Fund ' s White Plains office is located, but they were
forwarded to the Amalgamated Employee Benefits Administrators ' (AEBA) retirement
department mailroom for processing . Id. The AEBA's retirement department, staffed w ith
approximately one-quarter of its emp loyees due to government orders and other safeguards
adopted in li ght of the COVID-19 pandemi c, did not process the summons and complaint. Id. This
error went undetected until defendant' s investigation following the filing of the instant motion . Id.
The complaint and summons have never been served on defendant Kim in her individual capacity.

Id.

DISCUSSIO
The Fourth Circuit has "repeatedly expressed a strong preference that, as a general
matter, defaults be avoided and that claims and defenses be disposed of on their merits."

Colleton Preparatoty A cad. , Inc. v. Hoover Universal, 616 F.3d 413 , 417 ( 4th Cir. 2010). The
Fourth Circuit has taken an increasingly li beral view of avoiding defau lts . Cincinnati Ins. Co. v.

NVR, Inc., No. 3:12cv706 , 20 12 U.S. Di st. LEXIS 182678 at *2 (W .D.N.C. Dec. 28 , 2012). The
law strongly di sfavo rs motions for default. Tazco, Inc. v. Dir. , Office of Workers Comp.

Program, 895 F.2d 949, 950 (4th Cir. 1990) (citation omitted). When considering an entry of
default, courts consider " whether the moving party has a meritorious defense, whether it acts
wi th reasonable promptness, the personal responsibility of the defaulting party, the prejudice to
the party , whether there is a hi story of dilato ry action, and the availability of sanctions less
drastic. " Pay ne v. Brake , 439 F.3d 198, 204- 05 (4th Cir. 2006). The harsh entry of default is not

2

proper if the mistake was inadvertent, quickly reconciled, and the opposing party suffered no
prejudice. Thompkins,,. DOC, No. 5: I 0-CT-3224-BO, 2012 WL 965956 at* IO (E.D.N.C.
March 21, 2012).
Herc, entry of default is not warranted. Accordingly, plaintiffs motion for default is
denied. Defendant's mistake was inadvertent, it took immediate action upon actual notice, and
plaintiff will suffer no prejudice by having its case resolved on the merits. Defendants acted
promptly upon learning of the action, and they filed their answer within twenty-one days of
receiving notice and two days prior to the plaintiffs filing of the instant motion for default.
Defendants have no history of dilatory action with plaintiff. Furthermore, plaintiff cannot assert
that he will be put in any worse position than he was prior to the filing or his motion for default.
f

Finally, plaintiff has failed to establish proof of scn·ice to defendants. In his motion, plaintif
relies on his process server· s affidavit, which only provides that the complaint and summons

were "delivered to agent for final delivery." [DE 10]. However, proof to an intermediary that
may ultimately effectuate final delivery, without further evidence of such final delivery, is
insufficient. See N.C.G.S. § l-75.I0(a)(4). Plaintiff does not provide any evidence that he
delivered a summons and complaint to defendant Kim in her personal capacity.
CONCLUSION
f

For the forgoing reasons, plaintif s motion for judgment by default [DE I OJ is DENIED.

SO ORDERED. this the£ day of November, 2020.

3