Huey v. Dowd et al
Filing
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OPINION and ORDER granting 11 Motion to Set Aside Default; granting 14 Motion to Set Aside Default. The court finds that there is good cause to set aside the entry of default and this action will be allowed to proceed on its merits. Signed by Honorable Margaret B Seymour on 6/20/2018.(vdru, ) .
IN THE UNITED STATES COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Tina Huey,
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Plaintiff,
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v.
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Daniel Dowd and Dana Foster,
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Defendants.
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__________________________________________)
C/A No. 2:18-cv-00236-MBS
OPINION & ORDER
This matter comes before the court upon Defendant Daniel Dowd and Dana Foster’s
amended motion to lift entry of default (collectively referred as “Defendants”). ECF No. 14.
Plaintiff Tina Huey does not oppose Defendants’ motion. ECF No. 16. For the reasons stated
herein, Defendants’ amended motion to lift entry of default is GRANTED.
I.
RELEVANT AND PROCEDURAL HISTORY
On January 29, 2018, Plaintiff filed a negligence action against Defendants for personal
injuries sustained in a motor vehicle accident that occurred on or about April 10, 2016. ECF No.
1, Compl. ¶ 11. Defendant Dowd owned the motor vehicle which Defendant Foster operated at the
time of the accident. Compl. ¶ 10. Plaintiff asserts causes of actions for negligence against
Defendant Foster (First Cause of Action) and against Defendant Dowd for negligent entrustment
of a motor vehicle (Second Cause of Action). Compl. ¶¶ 15, 18. Plaintiff seeks compensatory and
punitive damages. Compl. ¶ 16.
On March 19, 2018, Plaintiff filed proof of service indicating that a process server left a
copy of the summons and complaint at the usual place of abode for Defendant Foster at 1 Mitchell
Circle, Ivoryton, Connecticut, and for Defendant Dowd at 24 Stanford Hill Road, Essex,
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Connecticut. ECF Nos. 5, 6. On April 24, 2018, Plaintiff filed a request for entry of default
pursuant to Fed. R. Civ. P. 55(a) against Defendants for failure to file a response to the complaint
within the time prescribed. ECF No. 9. A clerk’s entry of default against Defendants was entered
on April 24, 2018. ECF No. 10.
On May 1, 2018, Defendants filed a motion to lift entry of default, ECF No. 11, and an
amended motion to lift entry of default on May 16, 2018, 1 which included an affidavit from
Defendant Dowd, ECF No. 16. 2 In his affidavit, Defendant Dowd states that he is a citizen and
resident of Charleston County, South Carolina. ECF No. 16, ¶ 1. He states that he has resided in
Charleston, South Carolina since January 1, 2018, and has “not resided in Connecticut in
approximately 10 years.” Id. ¶¶ 4-5. He further states that he has “not been served with suit papers
in this matter.” Id. ¶ 6. In response, Plaintiff informed the court that she does not oppose the lifting
of the entry of default against Defendants. ECF No. 16.
II.
LEGAL STANDARD
Under Fed R. Civ. P. 55(a), “[w]hen a party against whom judgment for affirmative relief
is sought has failed to plead or otherwise defend . . . the Clerk of Court must enter a default.” A
court may set aside an entry of default “for good cause shown.” Fed. R. Civ. P. 55(c). “Fed. R.
Civ. P. 55(c) is liberally construed in favor of setting aside defaults because the law prefers
adjudication on the merits to default judgments.” Campodonico v. Stonebreaker, C/A No. 4:15cv-3373-RMG, 2016 WL 1064490, at *2 (D.S.C. Mar. 15, 2016). “The Fourth Circuit has set forth
a six-factor standard for relief from default under Rule 55(c): ‘whether the moving party has a
meritorious defense, whether it acts with reasonable promptness, the personal responsibility of the
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Defendants also filed an Answer denying Plaintiff’s allegations. ECF No. 13.
Defendants indicate that they may supplement this motion with an affidavit from Defendant
Foster at a later date. ECF No. 14 at 2.
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defaulting party, the prejudice to the party, whether there is a history of dilatory action, and the
availability of sanctions less drastic.’” Id. at *2 (citing Payne ex rel. Estate of Calzada v. Blake,
439 F.3d 198, 204-05 (4th Cir. 2006).
III.
ANALYSIS
The court considers whether there is good cause to set aside the entry of default in the
instant case. Although Defendants failed to timely file a response to Plaintiff’s Complaint, they
have since filed an Answer and a motion to set aside the Clerk’s entry of default. See ECF Nos.
11, 13. Both of these actions were taken within days of Defendants retaining counsel on May 1,
2018, indicating to the court that Defendants are seeking to act with reasonable promptness.
Because this case is at an early stage in litigation, the court finds no prejudice to Plaintiff by
allowing the entry of default to be set aside. There is also no evidence of a history of dilatory action
by Defendants at this early stage of litigation. Finally, there are sanctions available that are less
drastic than the entry of default against Defendants. See Colleton Preparatory Acad. Inc. v. Hoover
Universal, Inc., 616 F. 3d 413, 418 (4th Cir. 2010) (noting that a motion for an award of attorney’s
fees and costs to plaintiff in opposing the motion to set aside an entry of default or default judgment
could be appropriate).
With respect to the existence of a meritorious defense, the court finds that Defendants have
made a showing of the existence a meritorious defense. “A meritorious defense requires a ‘proffer
of evidence, which if believed, would permit either the court or the jury to find for the defaulting
party.’” Campodonico, 2016 WL 1064490, at *2. Defendants assert several defenses in their
Answer and in their motion to set aside the entry of default. See ECF Nos. 13, 14. Some of the
defenses include: (1) improper service of process; (2) lack of personal jurisdiction; (3) absence of
injuries; (4) bifurcated jury trial; and (5) failure to state sufficient facts. See Affirmative Defenses,
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ECF No. 13 at 3-5. In their motion, Defendants dispute causation and damages with regards to
Plaintiff’s allegations of injuries. ECF No. 14-1 at 2. Specifically, Defendant Dowd alleges that he
has “a meritorious defense against the negligent entrustment allegation as under South Carolina
law, negligent entrustment is only recognized under limited circumstances.” Id.
Based on Defendants’ Answer and motion to set aside the entry of the default, the court
finds that Defendants allege facts that, if believed, would constitute a meritorious defense to
Plaintiff’s claims. See Blackwood v. Georgetown Hosp. Systems, C/A No. 2:12-02702-RMG, 2013
WL 1342523, at *1 (D.S.C Apr. 2, 2013) (noting that Defendant’s proposed Answer contains
allegations and affirmative defenses which demonstrate a meritorious defense); Jenkins for
William Byrd Custom Home Builders, Inc. v. Builders Ins. Grp., C/A No. 9:18-cv-466, 2018 WL
1305548 (D.S.C. Mar. 12, 2018) (holding that the Defendant has established the existence of a
meritorious defense as it has filed an Answer and counterclaim); Advanced Commercial Credit
Int’t (ACI) Ltd. v. CitiSculpt, LLC, C/A No. 6:17-cv-00069-DCC, 2018 WL 1578817 (D.S.C. Apr.
2, 2018) (holding that Defendant has established the existence of a meritorious defense as it has
filed an Answer, and an Affidavit outlining the factual predicate for the defenses asserted in the
Answer).
The remaining factor, the personal responsibility of the defaulting party, weighs in favor
of Defendant Dowd. The record indicates that proper service was not effectuated upon Defendant
Dowd, because it was left at an address located in Connecticut, in which Defendant Dowd has not
resided in the past ten years. See Affidavit, ECF No. 14-2. Accordingly, the court finds that
Defendant Dowd has satisfied all six factors and has shown good cause to set aside the entry of
default.
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However, as to Defendant Foster, the court is unaware of the personal circumstances that
prevented her from timely filing an Answer. Because there are five factors that weigh in favor of
relieving Defendant Foster of the entry of default, and one factor that neither weighs clearly nor
against relief, the court finds that there is good cause to set aside the entry of default and allow the
instant action to proceed on its merits.
IV.
CONCLUSION
For the reasons set forth above, this court GRANTS Defendants’ motion to lift entry of
the Clerk’s default, ECF No. 11, and Defendants’ amended motion to lift entry of the Clerk’s
default. ECF No. 14. The Clerk’s entry of default in this matter is set aside.
IT IS SO ORDERED.
Dated: June 20, 2018
__/s/ Margaret B. Seymour _______
Margaret B. Seymour
Senior United States District Judge
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