DOLAND v. BERRIOS et al
MEMORANDUM OPINION AND ORDER denying 156 MOTION to Set Aside Default filed by Taylor Express Lines, Inc. Signed by Magistrate Judge Martin C. Carlson on February 3, 2015. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN I. DOLAND,
LUIS BERRIOS, COMSTAR
BWAABI AMAJUWON and
Third-Party Plaintiffs/Defendants :
NEW PENN MOTOR EXPRESS, INC., :
THEODORE MRKONJA, TIMOTHY :
FREDERICK, GAILLARD STROYE,
GREATER OMAHA EXPRESS, LLC, :
ADONIUS SHORES, and
Civil No. 1:11-CV-1783
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
Statement of Facts and of the Case
This case arises out of a February 26, 2010, snowbound chain reaction multivehicle accident on Interstate 76 in Cumberland County, Pennsylvania. On February
26, 2010, during a snow storm on the Pennsylvania Turnpike, a tractor-trailer
operated by Robert Smith, who was then employed by CRST collided with a tractor
trailer operated by Carlos Sheppard. Another tractor-trailer, owned by WFM and
operated by Allen Kauffman, then struck the CRST tractor trailer. Observing the
accident ahead of him, Galliard Stroye, operating a Greater Omaha Express tractor
trailer, came to a halt in the left hand lane of the turnpike. A tractor trailer owned by
New Penn Motor Express, Inc., and operated by Timothy Frederick, also came to a
stop in the right hand lane of the turnpike, along side the Greater Omaha Express
truck. Frederick’s New Penn tractor trailer was then struck from behind by a second
New Penn tractor trailer operated third party defendant, Theodore Mrkonja. The
force of this collision caused the New Penn vehicles to slide to their left and third
party defendant Frederick’s vehicle struck the Omaha Express tractor trailer which
was along side it.
In the meanwhile, several vehicles had come to a sudden stop immediately
behind the Omaha and New Penn trucks in the left hand lane of the turnpike. These
vehicles included an automobile operated by the plaintiff, Shawn Doland, a second
automobile, and a tractor trailer owned by Taylor Xpress Lines, inc., and operated by
Adonius Shore. In a matter of minutes, these vehicles became embroiled in yet
another series of chain reaction accidents when Luis Berrios, operating a tractor
trailer owned by Comstar Enterprises, Inc., struck the Taylor Xpress tractor trailer,
forcing it into the cars stopped in front of that truck. Within seconds, yet another
collision occurred when Bwaabi Amajuwon, who was driving a tractor trailer owned
by FAF, Inc., collided with the rear of Berrios’ truck, forcing it into the vehicles in
front of it in a chain reaction fashion.
This Palsgrafian1 proximate cause scenario led to the instant litigation. As part
of this litigation on March 12, 2012, a third party complaint was served by
Defendants/Third Party Plaintiff Berrios and Comstar upon Taylor Xpress by certified
mail at that company’s business address, 1516 S. Wabash Avenue, Apt. 206, Chicago,
Illinois. The mail delivery receipt was signed by Rosana Taylor.
Twenty months then passed without Taylor Xpress taking the slightest action
to defend this lawsuit in federal court or question the adequacy of this service of
process. After this prolonged period of complete inaction on Taylor’s part, on
November 5, 2013, Berrios and Comstar moved for the entry of a default judgment
against Taylor. Default was then entered against this third party defendant on
November 6, 2013.
Another year then passed without any action by Taylor to litigate this case, or
address it prior defaults in this litigation. Finally, on November 25, 2014, 32 months
Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y.
after service of the third party complaint and more than one year after entry of default,
Taylor filed a motion to reopen this case. (Doc. 156.) In its motion to reopen, Taylor
alleged for the first time and in a summary fashion that initial service of process was
improper because Rosana Taylor was not was an officer of Taylor Xpress authorized
to accept service. Taylor then asserted without any further elaboration that it had
belatedly determined that it has some currently unidentified defenses to this litigation,
and sought to set aside its defaults over the past three years. (Id.)
Berrios and Comstar have responded to this motion to reopen default judgment
in a compelling fashion, providing evidence supporting the sufficiency of its service
of process upon Taylor Xpress through Rosana Taylor. Specifically, Berrios and
Comstar have presented evidence showing that Rosana Taylor was the Vice President
of Taylor Xpress; was the co-owner of the property listed at 1516 Wabash Avenue
which was designated at the business address of Taylor Xpress; was apparently
related to Dachon Taylor, the President of Taylor Xpress by blood or marriage; and
had held herself out as the Fleet Manager for Taylor Xpress, a position that entailed
wide-ranging supervisory responsibilities at that company. (Doc. 158.)
Presented with this compelling proof, Taylor Xpress has elected not to dispute
in any fashion the averments made by Berrios and Comstar. Thus, Taylor Xpress has
not filed any reply brief in support of its motion to reopen, and the time for filing a
reply brief has now passed. Therefore, we will consider this motion in light of the
unrebutted factual averments made by Berrios and Comstar.
On these uncontested facts, Taylor Xpress’ motion to reopen default will be
Default Motions- Standard of Review
Default judgments are governed by Rule 55 of the Federal Rules of Civil
Procedure. Under Rule 55 a default judgment may only be entered when the party
against whom the default judgment is sought was served and “has failed to plead or
otherwise respond.” Rule 55(a), F.R.Civ.P. Furthermore, in ruling upon requests
relating to default judgments it is well-settled that these decisions are:
[L]eft primarily to the discretion of the district court. Tozer v. Charles
A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir.1951). We recognize,
however, that this Court does not favor entry of defaults or default
judgments. We require doubtful cases to be resolved in favor of the
party moving to [deny or] set aside the default judgment “so that cases
may be decided on their merits.” Id. at 245. See also Gross v. Stereo
Component Systems, Inc., 700 F.2d 120, 122 (3d Cir.1983); Feliciano
v. Reliant Tooling Company, Ltd., 691 F.2d 653, 656 (3d Cir.1982);
Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir.1982). Nevertheless,
we do not [deny or] set aside the entry of default and default judgment
unless we determine that the district court abused its discretion. We
require the district court to consider the following factors in exercising
its discretion . . .: (1) whether the plaintiff will be prejudiced; (2)
whether the defendant has a meritorious defense; (3) whether the default
was the result of the defendant's culpable conduct. Gross v. Stereo
Component Systems, Inc., 700 F.2d at 122; Feliciano v. Reliant Tooling
Company, Ltd., 691 F.2d at 656; Farnese v. Bagnasco, 687 F.2d at 764.
United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194-95 (3d
In this case, in the exercise of our discretion we find that Taylor’s belated
motion to reopen this default judgment should be denied. In reaching this conclusion,
we note at the outset that we reject Taylor’s tardy assertion that service of process
was improper. In this regard, Rule 4 of the Federal Rules of Civil Procedure
prescribes the manner in which service of process should be made. Under Rule 4(h),
“a domestic or foreign corporation, or a partnership or other unincorporated
association that is subject to suit under a common name, must be served: (1) in a
judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for
serving an individual.” Fed. R. Civ. P. 4(h). Rule 4(e)(1), in turn, provides that a
party “may be served in a judicial district of the United States by: (1) following state
law for serving a summons in an action brought in courts of general jurisdiction in the
state where the district court is located.” Fed. R. Civ. P. 4(e)(1). The Pennsylvania
Rules of Civil Procedure then permit service through the mails, but impose certain
specific requirements upon that service stating that: “a copy of the process shall be
mailed to the defendant by any form of mail requiring a receipt signed by the
defendant or his authorized agent.” Pa. R. Civ. P. 403.
Recognizing that “the party asserting the validity of service bears the burden
of proof on that issue See 4A Charles A. Wright and Arthur R. Miller, Federal
Practice and Procedure § 1083 (1987),” Grand Entertainment Group, Ltd. v. Star
Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993), here we find that Berrios and
Comstar have established proper service on Taylor Xpress. That service was made
by certified mail in accordance with state practice upon the co-owner of the business
property, someone who has been identified as a corporate vice president, and an
individual who has described herself as the Fleet Manager for Taylor Xpress, a
position that entailed wide-ranging supervisory responsibilities at that company.
(Doc. 158.) In our view, such service of process upon a corporate vice president at
the corporate business address–factual averments which are unrebutted by Taylor–is
adequate to effect service on the corporation. Trump Taj Mahal Associates v. Hotel
Servs., Inc., 183 F.R.D. 173, 175 (D.N.J. 1998).
Finding that service of process was proper here, we note that reopening this
default judgment at this late date would be highly prejudicial to the other parties in
this litigation, who have completed discovery, conducted protracted motions practice,
and have engaged in extended and extensive mediation efforts in this litigation. Thus,
the first of the benchmarks we must examine, the prejudice to the remaining parties
in the litigation, weighs heavily against reopening this case at this late date.
Similarly, the third factor we must consider– whether the default was the result
of the defendant's culpable conduct– also weighs heavily against Taylor. Almost
three years have now elapsed since Taylor was served and more than a year has
passed since default was entered against Taylor in this lawsuit. Even at this late date,
Taylor provides no explanation for its failure to address this litigation in a timely and
responsible fashion, beyond its belated and factually discredited claims regarding
adequacy of service of process, a matter which should have been addressed at a
minimum in November of 2013, when Berrios and Comstar moved for default. In
short, this case presents paradigm of culpable inaction on the part of Taylor Xpress,
inaction which spans years and constitutes yet another factor which favors denial of
this motion to reopen.
The sole remaining factor we must consider, then, is whether the defendant has
a meritorious defense. While Taylor contends that it has such a defense, it has not
shared that defense with the Court. Therefore, we are at a loss to determine what
weight, if any, this factor actually deserves. We note, however, that joinder of Taylor
Xpress as a third-party defendant seems appropriate here, since pursuant to Rule 14(a)
of the Federal Rules of Civil Procedure, a defending party may join a nonparty “who
is or may be liable to it for all or part of the claim against it.” Fed. R. Civ. P. 14(a).
The district court has the discretion to permit joinder. See Morris v. Lenihan, 192
F.R.D. 484, 487 n.3 (E.D. Pa. 2000). A third-party plaintiff may use Rule 14(a) to
implead a third-party defendant only if the proposed third-party defendant may be
liable to the third-party plaintiff derivatively or secondarily. See Naramanian v.
Geyhound Lines, Inc., Civ. A. No. 07-CV-4757, 2010 U.S. Dist. LEXIS 121145,
2010 WL 4628096, at *2 (E.D. Pa. Nov. 15, 2010) (citing FDIC v. Bathgate, 27 F.3d
850, 873 (3d Cir. 1994)). Thus, joinder is not available when a defendant seeks to
join a third party who may only be liable to the plaintiff. Id. In order to prevail on
a motion to join a third-party defendant, a third-party plaintiff must demonstrate some
substantive basis for its claim against the proposed third-party defendant. Pitcavage
v. Mastercraft Boat Co., 632 F. Supp. 842, 845 (M.D. Pa. 1985) (citing Robbins v.
Yamaha Motor Corp., U.S.A., 98 F.R.D. 36 (M.D. Pa. 1983)).
If a court finds that these requirements have been satisfied, “motions for joinder
should be freely granted to effectuate the purposes of the impleader rules.” Hartford
Cas. Ins. Co. v. ACC Meat Co., LLC, Civ. A. No. 1:10-CV-1875, 2011 U.S. Dist.
LEXIS 9945, 2011 WL 398087, at *2 (M.D. Pa. Feb. 2, 2011). As this Court has
Joinder under Rule 14(a) is meant to avoid circularity of action and
eliminate duplication of suits. See Judd, 65 F.R.D. at 615; see also
Monarch Life Ins. Co. v. Donahue, 702 F.Supp. 1195, 1197
(E.D.Pa.1989) (stating that the aim of Rule 14 is to “accomplish in one
proceeding the adjudication of the rights of all persons concerned in the
controversy and to prevent the necessity of trying several related claims
in different lawsuits”) (internal citations and quotations omitted); 6
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure
3d § 1443 (2004). In accordance with this broad purpose, Rule 14(a)
has been liberally interpreted to allow the joinder of third-party claims
despite allegations of different causes of action or different theories of
liability from the original complaint. See Judd, 65 F.R.D. at 614;
Monarch Life, 702 F.Supp. at 1198. The factors the Court should
consider include the timeliness of the motion, and whether joinder
would introduce an unrelated controversy, unduly complicate the case,
or prejudice the plaintiff. See Judd [v. General Motors Corp., 65 F.R.D.
612, 615 (M.D. Pa. 1974)].
Applying these legal benchmarks, federal courts have endorsed the use of Rule
14 joinder to consolidate claims arising out of chain reaction automobile accidents,
reasoning that such joinder is particularly appropriate in jurisdictions which have
adopted comparative negligence statutes since joinder of all parties allows for a full
assessment of all potential, comparative negligence arising out of a single episode.
See Tietz v. Blackner, 257 F.R.D. 510 (D. Utah 1994)(Construing Utah’s comparative
negligence statute). Pennsylvania is a comparative negligence jurisdiction, see 42
Pa.C.S. §7102, and case law in Pennsylvania clearly contemplates the joinder of
multiple parties in a single lawsuit arising out of a multi-vehicle accident. See
generally, Ross v. Tomlin, 696 A.2d 230 (Pa. Super. Ct. 1997)(acknowledging
joinder of multiple defendants in a chain reaction automobile accident). Furthermore,
Pennsylvania courts have long recognized that liability may be apportioned among
party-defendants in chain reaction accident cases, where multiple, successive
collisions compound the injuries suffered. See generally, Shamey v. State Farm Ins.
Co., 331 A.2d 498 (Pa. Super. 1974)(discussing apportionment of liability among
defendants in accident case involving successive collisions). In such instances the
goals of Pennsylvania’s comparative negligence statute, the apportionment of liability
among defendants based on their relative degree of causal fault, are promoted through
joinder of all potentially culpable parties in a single action. See 42 Pa.C.S. §7102.
Moreover, defendant Berrios has articulated a theory of third party negligence
as to Taylor Xpress which draws factual support from the record in this litigation,
arguing that the third party defendants were negligent in causing an accident which
suddenly stopped traffic, under poor weather conditions, leading to rear-end accidents
by other vehicles. Cases construing Pennsylvania tort law have found that the sudden
stoppage of a vehicle on a roadway under adverse weather conditions may create
factual issues concerning negligence and may constitute a proximate cause of an
accident involving rear end collisions behind the stopped vehicle. See Gensemer v.
Williams, 419 F.2d 1361, 1362 (3d Cir. 1970). Further, in vehicle accidents it has
been said that:
“Issues of negligence and contributory negligence are rarely
appropriate for summary judgment. As courts . . . have repeatedly noted, ‘[o]nly in
exceptional cases will questions of negligence [and] contributory negligence ... pass
from the realm of fact to one of law.’ Paraskevaides v. Four Seasons Wash., 292
F.3d 886, 893 (D.C.Cir.2002) (quoting Shu v. Basinger, 57 A.2d 295, 295–96
(D.C.1948)); see also Lyons v. Barrazotto, 667 A.2d 314, 322 (D.C.1995) (‘[i]ssues
of contributory negligence, like issues of negligence, present factual questions for the
trier of fact [u]nless the evidence is so clear and undisputed that fair-minded men can
draw only one conclusion.’) (internal citations omitted). This is no less true in tort
claims involving car accidents, as ‘[a]utomobile collisions at street intersections
nearly always present questions of fact ... Only in exceptional cases will questions
of negligence, contributory negligence, and proximate cause pass from the realm of
fact to one of law.’ Aqui v. Isaac, 342 A.2d 370, 372 (D.C.1975); see generally
Mahnke v. Washington Metro. Area Transit Auth., 821 F.Supp.2d 125, 132–33
(D.D.C.2011) (summarizing case law in this area).” Stehn v. Cody, CIV.A. 11-1036
CKK, 2013 WL 4505438 (D.D.C. Aug. 26, 2013). This fundamental truth is also
aptly reflected in Pennsylvania case law, which frequently rejects invitations in motor
vehicle accident cases on disputed factual records to make judgments regarding
negligence and comparative negligence as a matter of law. See, e.g., Burke v.
TransAm Trucking, Inc., 605 F. Supp. 2d 647, 649 (M.D. Pa. 2009); Sonnenberg v.
Erie Metro. Transit Auth., 137 Pa. Cmwlth. 533, 534, 586 A.2d 1026, 1027 (1991);
LeGrand v. Lincoln Lines, Inc., 253 Pa. Super. 19, 21, 384 A.2d 955, 956 (1978).
Given these legal guideposts, we find that Taylor Xpress has not shown in a
persuasive way that it has a meritorious defense to this action of such a compelling
quality that Taylor can overcome the prejudice to the other parties arising from a
belated reopening of this litigation, or excuse Taylor’s unexplained refusal to
participate in this litigation over the past three years. Therefore, finding that the
balancing of these discretionary factors heavily favors denial of Taylor’s motion to
set aside this default judgment, the motion will be denied.
Accordingly, for the forgoing reasons, IT IS ORDERED that Taylor Xpress’
Morton to Reopen the Default Judgment (Doc. 156.), is DENIED.
So ordered, this 3d day of February, 2015.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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