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.
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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) .

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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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