Viera v. P.A.R.I. Independent Living Center, Inc.

Filing 14

OPINION AND ORDER granting 8 Motion to Set Aside Default. So Ordered by Chief Judge William E. Smith on 4/15/14. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
P.A.R.I. INDEPENDENT LIVING
)
CENTER, INC.,
)
)
Defendant.
)
___________________________________)
NINA VIERA,

C.A. No. 13-769-S

OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
The Clerk of the Court made an entry of default in favor of
Plaintiff Nina Viera in the above-captioned matter on February
28, 2014.

Defendant, P.A.R.I. Independent Living Center, Inc.

(“PARI”), has filed a Motion to Set Aside Default (ECF No. 8)
pursuant to Federal Rule of Civil Procedure 55(c), asking that
the Court excuse PARI’s failure to timely respond to Plaintiff’s
complaint – the inaction that gave rise to the entry of default.
For the reasons that follow, PARI’s Motion is GRANTED.
I.

Background
Plaintiff brought this claim under the Family and Medical

Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”) and the Rhode
Island Parental and Family Medical Leave Act, R.I. Gen. Laws §
28-48-1,

et

seq.

(“RIPFMLA”)

following

1

her

termination

from

PARI,

which

discrimination.

she

claims

was

the

result

of

unlawful

An Amended Complaint was filed on January 13,

2014 and service was executed on Leo Canuel (“Canuel”), PARI’s
Executive Director, at PARI’s offices on January 14.
Service, ECF No. 3.)

(Proof of

PARI represents that Canuel had recently

returned to the office from surgery at that time. 1

(Mem. in

Supp. of Mot. to Set Aside Default 3, ECF No. 8.)
After

PARI

failed

to

reply

to

the

Amended

Complaint,

Plaintiff promptly moved for entry of default (ECF No. 4).
a

copy

of

Plaintiff’s

application

for

entry

of

default

When
was

delivered to PARI by mail, Canuel contacted PARI’s insurer under
the mistaken belief that the insurer was obligated to defend the
claim. 2

When the insurer did not engage counsel or otherwise

take action to defend the suit, PARI did not respond to the
application

for

entry

of

default

and

the

Clerk

granted

the

application (ECF No. 6).
II.

Discussion
“The Court may set aside an entry of default for good cause

. . . .”

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

“There is no mechanical

formula for determining whether good cause exists and courts may
consider a host of relevant factors.”

Indigo Am., Inc. v. Big

1

Canuel represents that he does not recall being served,
but the returned summons suggests that he was.
2

Canuel’s belief was mistaken because the policy did not
have a so-called duty-to-defend provision.
2

Impressions, LLC, 597 F.3d 1, 3 (1st Cir. 2010) (citing KPS &
Assocs. v. Designs by FMC, Inc., 318 F.3d 1, 12 (1st Cir.2003)).
Courts
willful;

typically
(2)

consider:

whether

“(1)

setting

it

whether
aside

the

was

prejudice

would

default

the

adversary; and (3) whether a meritorious defense is presented.”
Id.

Other factors include: “(4) the nature of the defendant’s

explanation for the default; (5) the good faith of the parties;
(6) the amount of money involved; and (7) the timing of the
motion.”

Id. (quoting KPS, 318 F.3d at 12).

demonstrating

good

cause

aside the default.”

lies

with

the

“The burden of

party

seeking

to

set

Id.

Upon review of these factors, the Court concludes that PARI
has

carried

its

appropriately

set

burden

and

aside.

that

With

the

respect

entry
to

of

the

default

first

is

factor,

Canuel may have acted carelessly, but his failure to initiate
PARI’s defense was not willful.

Canuel represents that he has

no recollection of being served and proffers as evidence that he
had recently returned to the office from surgery.

Once Canuel

received

Plaintiff’s

a

reminder

of

the

suit

in

the

form

of

application for entry of default, he promptly contacted PARI’s
insurer under the (albeit mistaken) assumption that the insurer
would arrange to defend the suit.
Likewise,

the

second

factor

weighs

in

PARI’s

favor

as

Plaintiff has not demonstrated that she would suffer prejudice
3

were the default to be set aside.

Plaintiff argues that doing

so would require her to “litigate this matter in accordance with
the Federal Rules of Civil Procedure” and to “attend various
court hearings and have a trial in this matter on the issues of
both

liability

and

damages.”

But,

to

merely

“require

the

[plaintiff] to litigate the action is insufficient prejudice to
require the default decree to stand.”

United States v. One

Parcel of Real Property, 763 F.2d 181, 183 (5th Cir. 1985).
Indeed, “[e]arly in the case, as when a default has been entered
but no judgment proven, a liberal approach is least likely to
cause unfair prejudice to the nonmovant.”

Coon v. Grenier, 867

F.2d 73, 76 (1st Cir. 1989).
The third factor – assessing whether the party seeking to
vacate an entry of default has presented a meritorious defense –
also

favors

PARI.

PARI

plausibly

contends

that

it

did

not

employ Plaintiff for purposes of the FMLA and the RIPFMLA, and
that, in any event, its employment of fewer than 50 individuals
would preclude liability.
Aside Default 5-6.)

(See Mem. in Supp. of Mot. to Set

These arguments may or may not pan out as

the suit progresses, but at a minimum they suggest that PARI has
the potential to present a meritorious defense.
Finally, it is worth noting that several of the additional
factors counsel in favor of setting aside the entry of default.
As

noted,

Canuel

proffered

a

reasonable
4

explanation

for

his

initial

inattention

to

the

suit

as

a

result

of

his

surgery

(suggesting that the default was not the result of bad faith),
and a mere two weeks passed between the Clerk’s entry of default
and PARI’s filing of its Motion to Set Aside Default.
“Allowing an entry of default to be set aside on a showing
of

reasonable

justification

is

in

keeping

.

.

.

with

the

philosophy that actions should ordinarily be resolved on their
merits . . . .”

Grenier, 867 F.2d at 76.

For all of these

reasons, PARI’s Motion to Set Aside Default is GRANTED.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: April 15, 2014

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