VFS Leasing Co. v. West Fork Coal, LLC et al

Filing 26

MEMORANDUM OPINION AND ORDER denying plaintiff's 19 MOTION for default judgment, insofar as it seeks judgment against Daniel Bunn; granting defendant Daniel Bunn's 22 MOTION to set aside the entry of default; the entry of default against defendant Bunn is vacated and set aside. Signed by Judge John T. Copenhaver, Jr. on 9/27/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
VFS LEASING CO.,
Plaintiff,
v.

Civil Action No. 2:16-cv-09535

WEST FORK COAL, LLC,
THOMAS GRANT, and
DANIEL BUNN,
Defendants.

MEMORANDUM OPINION AND ORDER
This memorandum opinion and order concerns the following
pending motions: (1) plaintiff’s motion for default judgment,
insofar as it seeks judgment against Daniel Bunn, filed on
December 14, 2016, and (2) the motion of defendant Daniel Bunn to
set aside the entry of default as to him and in opposition to
plaintiff’s motion for default judgment as to him, filed on
December 22, 2016.
On October 7, 2016, plaintiff instituted this action.
On October 12, 2016, a summons was issued, indicating an Arizona
address for defendant Bunn, and on October 20, the Secretary of
State of West Virginia sent the summons to that address.
1

On

November 18, the Clerk entered default against Bunn, after
plaintiff requested it on November 17.
In its memorandum in support of motion for default
judgment (ECF No. 20) and subsequent response to defendant Bunn’s
motion (ECF No. 24), plaintiff contends, inter alia, that:
1.

Defendant Bunn was served through the West Virginia

Secretary of State;
2.

Bunn’s transacting of business in West Virginia was

sufficient to appoint the Secretary of State as his agent; and
3.

The service was proper because a credit report showed an

Arizona address and an agent signed to accept service.
In Bunn’s motion (ECF No. 22) and in his subsequent
reply (ECF No. 25) and supporting affidavit (Exhibit A thereto),
he contends that he does not reside in Arizona but resides in
California.

He further contends that no one was authorized to

accept service for him at the Arizona address, that the signature
of whomever purported to sign for him is unintelligible, that the

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person signing is unknown to him, and that service was therefore
improper.1
Federal Rule of Civil Procedure 55(c) provides
pertinently as follows: “For good cause shown the court may set
aside an entry of default . . . .”

Fed. R. Civ. P. 55(c).

Our

court of appeals has observed as follows respecting requests to
set aside defaults:
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.
Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05
(4th Cir. 2006).

In assessing these factors, it is noteworthy

that in the related context of default judgment set asides our
court of appeals has observed that “over the years . . . [it has]
taken an increasingly liberal view of Rule 60(b) . . . .”

Augusta

Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d
808, 810 (4th Cir. 1988).

1

Bunn further maintains that the court lacks personal
jurisdiction over him.

3

The first Payne factor weighs in favor of granting
Bunn’s motion because the affidavit states that he does not reside
in Arizona, and the guaranty agreement on which this suit against
him is based indicates a California address.

He claims as well

that he is not amenable to suit in this jurisdiction.
The other Payne factors also weigh in favor of granting
his motion.

Bunn moved promptly for relief from default, about a

month after the entry of default by the Clerk.

Moreover, no

cognizable prejudice to plaintiff has been demonstrated (a mere
recitation of relief requested not amounting to such special
prejudice).

Finally, there is no history of dilatoriness on

Bunn’s part.
Based upon the foregoing discussion, the court ORDERS as
follows:
1.

That plaintiff’s motion for default judgment as to

defendant Bunn be, and it hereby is, denied;
2.

That defendant Bunn’s motion to set aside default be,

and it hereby is, granted; and
3.

That the entry of default against defendant Bunn be, and

it hereby is, vacated and set aside.

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Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed to appear.
02/29/2016

Entry of scheduling order.

03/08/2016The Clerk day directed to transmit copies of disclosures.
Last is to serve F.R. Civ. P 26(a)(1) this order
to counsel The record is requested to transmit this Order and
of Clerk and any unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: September 27, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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