Rice v. M-E-C Company et al

Filing 81

ORDER granting 72 Motion to Set Aside Default; finding as moot 75 Motion to Strike Signed by Honorable Patrick Michael Duffy on November 29, 2017.(nkni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Stephen Rice,

)
)
Plaintiff,
)
)
v.
)
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M-E-C Company, John Quick, Jr.,
)
Lynn Ann Lichtenfeld, Reuben Andreas,
)
Reuben Roff Andreas Trust,
)
John Andreas, Amanda Fisk,
)
Joan K. Parker,
)
)
Defendants.
)
____________________________________)

C.A. No.: 2:17-cv-1274-PMD
ORDER

This matter is before the Court on Defendants Amanda Fisk and John Andreas’ motion to
set aside the entry of default (ECF No. 72) and Plaintiff Stephen Rice’s motion to strike (ECF No.
75). For the reasons set forth herein, the motion to set aside the default is granted and the motion
to strike is denied as moot.
BACKGROUND AND PROCEDURAL HISTORY
This action arises out of a dispute over wages and benefits allegedly owed to Rice, who
met with Fisk and Lynn Lichtenfeld on May 9, 2016, and was fired the following day.
Fisk and Andreas were served on June 10. According to Fisk and Andreas’s affidavits,
they each sent a letter on June 10 to Rice’s counsel denying Rice’s allegations. According to
Rice’s counsel’s affidavit, she never received those letters. On June 14, Fisk allegedly contacted
her homeowner’s insurance company about the claim, and the company denied the claim on July
17. The parties both agree that Fisk emailed Rice’s counsel on July 17. Rice’s counsel interpreted
the email as a request for additional time to answer. On August 15, Fisk and Andreas mailed
letters to Rice’s counsel with substantively the same denials contained in the letters they allegedly

mailed on June 10. On September 3, Rice moved for entry of default as to Fisk and Andreas. The
Clerk entered the default on September 5. On September 6, Rice submitted a supplement to his
request for entry of default which included the letters mailed on August 15. Those letters were
purportedly received by Rice’s counsel on September 5, the same day that the Clerk entered
default. On September 21, Andreas and Fisk filed their first responsive pleadings by moving to
dismiss and moving to set aside the entry of default. 1 On October 5, Rice responded to the motion
to set aside the entry of default and also filed a motion to strike. Fisk and Andreas did not reply
to Rice’s response, and they did not respond to Rice’s motion to strike. Accordingly, these motions
are ripe for review.
DISCUSSION
Rule 55(c) of the Federal Rules of Civil Procedure provides that a “court may set aside an
entry of default for good cause.” “Generally a default should be set aside where the moving party
acts with reasonable promptness and alleges a meritorious defense.”

Consol. Masonry &

Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249, 251 (4th Cir. 1967). “[A]ll that is
necessary to establish the existence of a ‘meritorious defense’ is a presentation or proffer of
evidence, which if believed, would permit either the Court or the jury to find for the defaulting
party.” United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). The court should also consider
“whether the [defaulting] party has a meritorious defense, whether it acts with reasonable
promptness, the personal responsibility of the defaulting party, the prejudice to the [nondefaulting] party, whether there is a history of dilatory action, and the availability of sanctions less
drastic.” Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204–05 (4th Cir. 2006).

1.

The Court denied the motion to dismiss on October 25.

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The Court finds that Fisk and Andreas have presented a meritorious defense. Fisk
submitted an affidavit stating that she had nothing to do with Rice’s termination and an exhibit
attached to the affidavit further states that she did not make any decisions regarding Rice. Andreas’
affidavit states that he was not involved in anything relating to Rice’s hiring, retention, or
termination. If a jury believed those claims, it could find for Fisk and Andreas.
The Court finds that Fisk and Andreas also took numerous steps in an attempt to respond
to the summons in a timely manner. The summons given to Fisk and Andreas instructed them to
serve a copy of their answer to Rice’s counsel and did not specify that they must also file an answer
with the Court. Fisk and Andreas state that they mailed letters denying the allegations to Rice’s
counsel the same day that they received the summons. They aver that they submitted the claim to
their homeowner’s insurance company and contacted Rice’s counsel by email as soon as the
company denied their claim. Rice’s counsel acknowledges that she received the email and that
she accepted it as a request for additional time to answer, but she does not claim that she replied
to the email. Fisk and Andreas state that they never received a reply. Taken together, the Court
finds that as of July 17, Rice’s counsel was aware that Fisk and Andreas were attempting to answer
the summons. Moreover, though she was apparently willing to give them more time to answer,
she never communicated that willingness to them. Finally, Fisk and Andreas mailed another pair
of letters on August 15, which should have reached Rice’s counsel before Rice filed for entry of
default. Apparently, the letters arrived two days after Rice filed for entry of default, and on the
same day that the Clerk entered the default. The Court concludes that Fisk and Andreas acted with
reasonable promptness in an attempt to follow the directions of the summons and that Rice has not
shown how he might be prejudiced by allowing them to defend themselves on the merits. In light

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of these findings and the fact that Fisk and Andreas have put forth a meritorious defense, the Court
grants their motion to set aside the default.
Rice’s motion requests that the Court strike Fisk and Andreas’ answer. However, Fisk and
Andreas have not yet filed an answer with the Court. In his brief opposing the motion to set aside
the entry of default, Rice refers to the letters mailed on August 15 as Fisk and Andreas’ answer.
Those letters were filed with the Court as exhibits to Rice’s own Supplement to Request for
Default. Since the letters are relevant to setting aside the entry of default, as discussed above, the
Court will not strike them from Rice’s own filing. Insofar as Rice’s motion asks the Court to strike
an answer that has not yet been filed, it is denied as moot.
CONCLUSION
For the reasons stated herein, Fisk and Andreas’ motion to set aside the entry of default is
GRANTED. Rice’s motion to strike is DENIED AS MOOT.
AND IT IS SO ORDERED.

November 29, 2017
Charleston, South Carolina

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