American National Property and Casualty Company v. Moore et al
Filing
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MEMORANDUM OPINION AND ORDER based upon the foregoing considerations and as more fully set forth herein, the motion to set aside the default earlier entered herein is granted and the default is set aside; granting the defendants' 11 MOTI ON for an extension of time to file a responsive pleading; the defendants are given leave to file their proposed answer, which the Clerk is directed to treat as timely docketed this same date; denying as moot the 14 MOTION for default judgment ; denying as premature the 14 MOTION for summary judgment; sanctions are imposed upon the defendants jointly and severally to reimburse ANPAC for the costs it incurred in preparing its motion for default judgment, as distinguished from the alternative motion for summary judgment, and in responding to the motion to set aside the default; the defendants have now answered, additionally directing as follows: Motions under F.R. Civ. P. 12(b) due by 6/5/2014; Last day for Rule 26(f) mee ting due by 6/16/2014; Last day to file Report of Parties' Planning Meeting due by 6/23/2014; Scheduling conference set for 6/30/2014 at 4:30 p.m.; Entry of scheduling order due by 7/7/2014; and Last day to serve F.R. Civ. P 26(a)(1) disclosures due by 7/15/2014. Signed by Judge John T. Copenhaver, Jr. on 5/22/2014. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
AMERICAN NATIONAL PROPERTY
AND CASUALTY COMPANY,
Plaintiff,
v.
Civil Action No. 2:14-10340
PAUL MOORE and
BARBARA NICHOLS,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the defendants’ motion for an extension of
time to file a responsive pleading, filed April 16, 2014, and the
plaintiff’s motion for default judgment or, in the alternative,
for summary judgment, filed April 28, 2014.
I.
Plaintiff American National Property and Casualty
Company (“ANPAC”) instituted this declaratory action on February
14, 2014.
It seeks a determination that ANPAC is entitled to void
the homeowner’s insurance policy, 47-H-981-13N-3, issued to
defendants Paul Moore and Barbara Nichols.
ANPAC asserts that
defendants willfully and knowingly misrepresented a fact during
the application process, namely, that Mr. Moore had not previously
been convicted of a felony when, in fact, he had.
It appears undisputed that the Ms. Nichols and Mr. Moore
were obligated respectively to file their responsive pleadings in
this matter on April 4 and 7, 2014.
They failed to do so.
Moore retained counsel on April 9, 2014.
on April 10, 2014.
Mr.
Ms. Nichols did likewise
On April 16, 2014, common counsel noted his
appearance for both defendants.
On April 16, 2014, defendants’ counsel moved for an
extension of time to file a responsive pleading for defendants.
On April 28, 2014, ANPAC moved for default judgment or, in the
alternative, for summary judgment.
Inasmuch as the defendants did not answer within the
time prescribed for doing so, it is appropriate to enter default
pursuant to Federal Rule of Civil Procedure 55(b)(1).
Fed. R.
Civ. Proc. 55(b)(1) (“When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party's default.”).
The court, accordingly,
enters default against Mr. Moore and Ms. Nichols.
The court now
addresses whether judgment should be entered thereon or, instead,
whether the default should be set aside and defendants given leave
to file a late answer.
The court construes the motion for an
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extension of time to file a responsive pleading as a motion to set
aside the default.
II.
Rule 55(c) governs the setting aside of default.
It
provides as follows: “The court may set aside an entry of default
for good cause . . . .”
Fed. R. Civ. Proc. 55(c).
In Colleton
Preparatory Academy, Inc. v. Hoover Universal, Inc., 616 F.3d 413
(4th Cir. 2010), our court of appeals noted its “long-held view
that Rule 55(c) . . . must be liberally construed in order to
provide relief from the onerous consequences of defaults and
default judgments.”
omitted).
Id. at 421 (internal quotation marks
Referring to its seminal decision in Payne ex rel.
Estate of Calzada v. Brake, 439 F.3d 198 (4th Cir. 2006), the
court of appeals noted the applicable factors for relieving a
party of its dilatoriness:
When deciding whether to set aside an entry of default,
a district court should consider whether the moving
party has a meritorious defense, whether it acts with
reasonable promptness, the personal responsibility of
the defaulting party, the prejudice to the party,
whether there is a history of dilatory action, and the
availability of sanctions less drastic.
Colleton, 616 F.3d at 417 (quoting Payne, 439 F.3d at 204–05).
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First, it appears that Mr. Moore and Ms. Nichols have a
meritorious defense.
In their proposed answer filed May 2, 2014,
the defendants contend that they were not asked about Mr. Moore’s
felony status by ANPAC’s agent, who filled out their application
for them.
Second, respecting reasonable promptness, the
defendants retained counsel within a few days of their answer
being due.
The court cannot conclude they acted so unseasonably
that relief ought to be denied.
Third, it is the defendants who
bear responsibility for the brief delay in seeking relief from the
answer deadline.
available.
Finally, a far less drastic sanction is
That sanction would require the defendants to
reimburse ANPAC for the costs it incurred in preparing its motion
for default judgment, as distinguished from the alternative motion
for summary judgment, and in responding to the motion to set aside
the default.
It is ORDERED that the sanction be, and hereby is,
imposed upon the defendants jointly and severally.
Based upon the foregoing considerations, the court finds
good cause under Rule 55(c) to relieve the defendants of their
default.
1.
It is, accordingly, ORDERED as follows:
That the motion to set aside the default earlier entered
herein be, and hereby is, granted and the default is set
aside;
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2.
That the defendants be, and hereby are, given leave to
file their proposed answer, which the Clerk is directed
to treat as timely docketed this same date;
3.
That the motion for default judgment be, and hereby is,
denied as moot; and
4.
That the alternative motion for summary judgment be, and
hereby is, denied as premature pursuant to Local Rule of
Civil Procedure 7.1(a)(1).
5.
That sanctions be, and hereby are, imposed upon the
defendants jointly and severally to reimburse ANPAC for
the costs it incurred in preparing its motion for
default judgment, as distinguished from the alternative
motion for summary judgment, and in responding to the
motion to set aside the default.
Inasmuch as the defendants have now answered, the court,
pursuant to Local Rule of Civil Procedure 16.1, additionally
ORDERS that the following dates are hereby fixed as the time by or
on which certain events must occur:
06-05-2014
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
06-16-2014
Last day for Rule 26(f) meeting.
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06-23-2014
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
06-30-2014
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed to appear.
07-07-2014
Entry of scheduling order.
07-15-2014
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
ENTER:
May 22, 2014
John T. Copenhaver, Jr.
United States District Judge
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