Trbovich et al v. Garcia et al
Filing
26
MEMORANDUM OPINION. See for complete details. It is so ORDERED. Signed by District Judge Robert E. Payne on 12/06/2016. (nbrow)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
~ l!dJ
~,1
DEC - 6 20I&
CLERK, U.S. DISTRICT COURT
RICHMOND, VA
NICHOLAS D.
et al.,
~RBOVICH,
JR.,
Plaintiffs,
Civil Action No. 3:16cv302
v.
JOSEPH L. GARCIA and
VICKI SHUNKWILER GARCIA,
Defendants.
MEMORANDUM OPINION
This matter is before the Court on the MOTION AND ORDER TO
REINSTATE (ECF No. 19) and the MOTION TO VACATE ENTRY OF DEFAULT AND
PERMIT DEFENDANT VICKI SHUNKWILER GARCIA TO ANSWER (ECF No. 20) filed
by the defendant, Vicki Shunkwiler Garcia, and the responses and
reply thereto.
For the reasons set forth below, the MOTION AND ORDER
TO REINSTATE (ECF No. 19) and the MOTION TO VACATE ENTRY OF DEFAULT
AND PERMIT DEFENDANT VICKI SHUNKWILER GARCIA TO ANSWER (ECF No. 20)
will be denied.
BACKGROUND FACTS
The Plaintiffs filed their Complaint on May 20, 2016 against
Mrs. Garcia and her husband, Joseph L. Garcia, seeking judgment on
a $125,000.00 loan that the Plaintiffs made to the defendants.
On
May 25, 2016, Mrs. Garcia was served by a private process server who
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1
posted the summons and a copy of the Complaint on the front door of
her residence.
Within the twenty-one (21) day period permitted by
Fed. R. Civ. P. 12, Mrs. Garcia had filed no responsive pleadings.
On June 30, 2016, the Plaintiffs filed their AMENDED MOTION FOR ENTRY
OF DEFAULT (ECF No. 5) and a Certificate of Service shows that copies
of th.e Complaint,
summonses and the AMENDED MOTION FOR ENTRY OF
DEFAULT were mailed to Mrs. Garcia on that date.
On July 8, 2016, Mrs. Garcia left a voicemail message at the
office of Plaintiffs'
counsel
and therein advised that
she had
received the Amended Motion for Entry of Default and wished to discuss
the matter with Plaintiffs' counsel.
the
telephone
call
the
Plaintiffs' counsel returned
same day but was
unable
to
communicate
personally with Mrs. Garcia, instead leaving a voicemail message.
On July 12, 2016, the Clerk entered default against Mrs. Garcia
pursuant to Fed. R. Civ. P. 55(a).
On July 15, 2016, Plaintiffs'
counsel communicated by telephone with Erin Smith,
Esquire,
who
represented that her firm, the Peninsula Center, had been retained
to represent Mrs. Garcia.
Thereafter, counsel for Mrs. Garcia and
the Plaintiffs discussed potential settlement, but no agreement was
ever reached and no repayment was ever made.
12,
2016,
Accordingly, on August
the Plaintiffs filed their MOTION FOR ENTRY OF DEFAULT
JUDGMENT AGAINST VICKI SHONKWILER GARCIA (ECF No. 7) .
Plaintiffs'
The same day,
counsel emailed a copy of that motion to Ms.
2
Smith.
Thereafter, the Court requested that the Plaintiffs submit a proposed
Order awarding judgment against Mrs. Garcia.
That proposed Order
was submitted on August 19, 2016, and, on the same day, a copy of
it was emailed to Ms. Smith. 1
However, there were no pleadings filed
in response to the Motion for Entry of Default Judgment and, on August
2 4, 2016, the Court entered the ORDER AWARDING JUDGMENT AGAINST VICKI
SHONKWILER GARCIA (ECF No.
11).
And,
that same day,
Plaintiffs'
counsel spoke by telephone with Ms. Smith and advised her that the
Court had just entered default judgment against Mrs. Garcia.
During
the conversation, Ms. Smith advised that she would be filing a motion
to set aside the default judgment.
Then,
thirty-five
(35)
days
Nothing was forthcoming however.
later,
on September 29,
2016,
Plaintiffs' counsel informed Ms. Smith by email that he anticipated
commencing execution on the judgment soon.
There was no response.
Thereafter, in furtherance of the execution process, counsel for the
Plaintiffs' recorded the judgment against Mrs. Garcia in the Circuit
Court for the County of New Kent, Virginia where she and her husband
own real property.
Thereafter, the Circuit Court for the County of
New Kent, Virginia issued a summons to answer interrogatories and
that
was
duly
served
upon
Mrs.
Garcia.
Plaintiffs'
counsel
Because no appearance had been made and default had been entered,
Plaintiffs' counsel was not required to serve Ms. Smith or Mrs. Garcia
with copies of anything.
Nonetheless, as a courtesy, Plaintiffs'
counsel did provide Ms. Smith, Mrs. Garcia's counsel, copies of what
was filed.
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1
scheduled a debtor's examination,
November 11,
2016.
under Virginia procedure,
for
That examination was to be held before the
Commissioner in Chancery for the Circuit Court of the County of
Henrico.
Throughout that time neither the Plaintiffs' counsel nor
the Court received any communication from Mrs. Garcia or her counsel.
Then, on October 26, 2016, the motions that are presently before
the Court were filed seeking (1) to have the default judgment and
entry of default set aside, and ( 2) leave to file an Answer.
Simply
put, more than two months after notice that there was a default
judgment
on
record no
action
was
taken with
the
Court
and no
communication was had with Plaintiffs' counsel.
Plaintiffs' counsel has now learned that Mrs. Garcia and her
husband intend to sell their home in New Kent County where the
judgment is a matter of record.
If the default judgment is set aside,
the recordation of it will be of no effect.
Against these facts,
the current motions must be decided.
DISCUSSION
As Plaintiffs note, Mrs. Garcia's motion is not in compliance
with Local Civil Rule 7 ( F) ( 1) because it is not accompanied by a brief
setting forth citations and authorities upon which the movant relies.
The only citation of authority cited in that brief is Fed. R. Civ.
P. 55.
That insufficiency alone would be reason to deny the motions.
4
However, it is preferable not to predicate a decision of this sort
on a procedural failure.
Mrs. Garcia's motion is filed putatively under Fed. R. Civ. P.
55 seeking permission to set aside the default.
as follows:
That rule provides
"The Court may set aside an entry of default for good
cause and it may set aside a final default judgment under Rule 60 (b)."
Accordingly, because a final default judgment has been entered, the
analysis here must proceed under Fed. R. Civ. P. 60(b).
Rule 60 (b) articulates the grounds upon which relief may be had
from a final judgment.
that,
if
shown
to
There are six reasons set out in the rule
exist,
permit
the
exercise
of
this
rather
extraordinary judicial power.
It is somewhat difficult to discern from the skimpy papers filed
by Mrs. Garcia's counsel exactly what part of Rule 60(b) is thought
to be the predicate for the relief sought.
However, in the response
to the Plaintiffs' opposition papers (ECF No. 24), the argument is
made that "Mrs. Garcia's failure to respond to the Complaint meets
the criteria of both 'mistake' and 'excusable neglect.'"
24,
p.
6).
Excuse is permitted upon a
excusable neglect under Rule 60(b) (1).
(ECF No.
showing of mistake and
Here, it is suggested that
the mistake was that Mrs. Garcia was not a party to the underlying
borrowing transaction that is at issue in the suit and that the
Plaintiffs "mistakenly included Ms. Garcia as a Defendant in this
5
action."
Also asserted as grounds for mistake was "Defendant's
belief she did not need to respond to the Complaint."
The same
conduGt also is said to constitute "excusable neglect" because Mrs.
Garcia's "assumptions regarding her responsibilities to respond to
the complaint are completely understandable from a layperson' s point
of view."
To begin, Mrs. Garcia cites no authority for application of the
terms "mistake" and "excusable neglect" on the rationale that she
advances in her papers.
Moreover, the entire argument is frivolous
because, by July 8, 2016, Mrs. Garcia was fully aware that a motion
to find her in default had been filed.
Further, one week later, on
July 15, 2016, Mrs. Garcia's counsel, Ms. Smith, advised Plaintiffs'
counsel that her firm, the Peninsula Center, had been retained to
represent Mrs. Garcia.
Under the circumstances, a prudent lawyer
certainly would have filed promptly a motion to set aside the default.
That simply was not done.
Between July 15 and August 12, 2016, Ms. Smith and Plaintiffs'
counsel discussed possible resolution of the dispute but no agreement
was reached.
Therefore,
on August 12,
2016,
Plaintiffs'
counsel
filed a motion for entry of default judgment and a copy of that motion
was sent to Ms. Smith, Mrs. Garcia's counsel.
Nonetheless, counsel
filed no response to the motion for entry of default judgment.
The
entry· of
and
default
judgment
occurred
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on
August
24,
2016,
Plaintiffs'
judgment
counsel
during
a
told Ms.
telephone
Smith about
the
conversation
entry of default
held
on
that
date.
Remarkably, Ms. Smith advised that she would be filing a motion to
set
aside the default
judgment.
However,
she did nothing and
thirty-five (35) days later, a quite reasonable period of time to
wait under the circumstances, counsel for the Plaintiffs began the
process of executing on the judgment by recording it and by arranging
for debtor's interrogatories and a debtor's examination to occur.
Mrs. Garcia has cited and the Court has found no authority that,
under these circumstances,
it would be appropriate to
presence of a mistake or excusable neglect.
find the
Also, the Court finds
that relief under these circumstances would unfairly prejudice the
Plaintiffs who have already begun the process of executing on the
default
judgment,
and
relief
from
the
judgment
would
present
significant difficulties in the execution process that is already
underway in state court.
Furthermore, Mrs. Garcia has not tendered any evidence of a
valid defense to the claim.
It is her contention that she was not
a party to the underlying transaction.
That bald assertion is not
sufficient however to constitute proof of the existence of a valid
defense
that
would
be
sufficient
invocation of Rule 60 (b) ( 1) .
7
under
the
law
applicable
to
Al though Mrs. Garcia says that she was not properly served, the
record shows that, in fact, she was properly served.
Nonetheless,
she does not seem to any longer contend that there is a ground for
relief under Rule 60 (b) ( 4) which permits relief from a void judgment.
In any event, the judgment here is neither void nor voidable.
Finally, it is suggested that problems that occurred within the
law firm representing Mrs. Garcia warrant excuse from the judgment.
As the Court understands it, the argument is that one lawyer who was
handling the case went on maternity leave and another lawyer did not
pick up the case in time to do anything about it.
not
appropriate
grounds
for
a
finding
of
That simply is
excusable
neglect.
Although such conduct constitutes neglect of the obligation owed to
a client, it is not excusable neglect under the law.
Indeed, when
circumstances such as that arise, it is the obligation of the lawyers
and law firms to attend to the affairs of the client whose lawyer
must depart for maternity leave or sickness or, for that matter, any
other- reason.
In sum, there is no ground for relief that has been established
by Mrs. Garcia and therefore the pending motions will be denied.
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CONCLUSION
For the foregoing reasons, the MOTION AND ORDER TO REINSTATE
(ECF No. 19) and the MOTION TO VACATE ENTRY OF DEFAULT AND PERMIT
DEFENDANT VICKI SHONKWILER GARCIA TO ANSWER (ECF No.
20)
will be
denied.
It is so ORDERED.
Isl
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: December j;__, 2016
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