United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
the Court is Defendant Cobra Enterprises of Utah, Inc.'s
(“Cobra”) Motion to Set Aside Default. (ECF No.
14.) For the reasons set forth below, the Court
GRANTS the motion.
brings this products liability action against Defendants
alleging that a Cobra Derringer firearm he purchased
“inadvertently discharged, striking [him] in the left
calf and upper left thigh and lower left abdomen.” (ECF
No. 1 at 4-5 ¶ 13.) He contends that the firearm
“was defective from the time it was designed,
manufactured, and marketed” until his injury.
(Id. at 6 ¶¶ 16-17.) The Complaint, filed
on February 6, 2018, alleges three causes of action premised
on theories of strict product liability, breach of warranty,
and negligence. (Id. at 5-9 ¶¶ 15-32.)
March 21, 2018, Plaintiff filed a request for entry of
default against Cobra and subsequently filed an affidavit in
support of that request less than a week later. (ECF Nos. 9,
10.) In response to the request and affidavit, the Clerk of
this Court entered default as to Cobra on March 28, 2018,
pursuant to Federal Rule of Civil Procedure 55(a). (ECF No.
11.) Cobra filed the current Motion to Set Aside Default on
April 12, 2018. (ECF No. 14.) Plaintiff responded to the
motion on April 26, 2018, (ECF No. 16), and Cobra filed its
reply on May 2, 2018, (ECF No. 17). As such, the motion is
fully briefed and ripe for adjudication.
Federal Rule of Civil Procedure 55, a court may, “for
good cause shown, ” set aside an entry of default. Rule
55(a) initially provides that when a party shows by affidavit
that an opposing party has failed to plead or otherwise
defend itself in litigation, the clerk of court must enter
default against the defending party. Pursuant to Rule 55(c),
however, district courts have the discretion to set aside an
order of default for good cause. The Fourth Circuit has
“repeatedly expressed a strong preference that, as a
general matter, defaults be avoided and that claims and
defenses be disposed of on their merits.” Colleton
Preparatory Acad., Inc. v. Hoover Universal, Inc., 616
F.3d 413, 417 (4th Cir. 2010) (citations omitted); see
also Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969)
(providing that “any doubts about whether relief should
be granted should be resolved in favor of setting aside the
default so that the case may be heard on the merits”).
from a judgment of default should be granted where the
defaulting party acts with reasonable diligence in seeking to
set aside the default and tenders a meritorious
defense.” United States v. Moradi, 673 F.2d
725, 727 (4th Cir. 1982) (citations omitted). Courts assess
whether a party's action is “reasonably
prompt” in light of the facts and circumstances, and
“a ‘meritorious defense' is a presentation or
proffer of evidence, which, if believed, would permit either
the Court or the jury to find for the defaulting
party.” Id. (citing Cent. Operating Co. v.
Util. Workers of Am., 491 F.2d 245, 252 n.8 (4th Cir.
1974)). Beyond reasonable promptness and a meritorious
defense, courts also consider “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) (citations omitted).
Court first notes that “Plaintiff has no objection to
this Court setting the entry of default aside . . . .”
(ECF No. 16 at 2.) Nevertheless, the Court will briefly
address the relevant factors to consider under Federal Rule
of Civil Procedure 55(c).
this factor, “the moving party does not have to prove
conclusively that he would prevail, only that there is
sufficient evidence to permit a court to find in his
favor.” Wainwright's Vacations, LLC v. Pan Am.
Airways Corp., 130 F.Supp.2d 712, 718 (D. Md. 2001).
Even if a defense is tenuous, this factor should weigh in
favor of granting a motion to set aside the default. See
Rasmussen v. Am. Nat. Red Cross, 155 F.R.D. 549, 552
(S.D. W.Va. 1994). This action as brought against Cobra
alleges, in part, that Cobra defectively designed and
manufactured the subject firearm. (ECF No. 1 at 9 ¶ 31.)
While Cobra has not filed its answer to the Complaint's
allegations, it asserts in the motion's supporting
memorandum of law that “Plaintiff's claims are
erroneous and that further examination by experts in firearms
will reveal that the events Plaintiff complain[s] of do not
result from a defect in manufacture.” (ECF No. 15 at
7.) If Cobra proves the veracity of these initial claims,
this Court or a jury may find in its favor. Cf.
Rasmussen, 155 F.R.D. at 552 (“[A]lthough
Defendant has neither presented nor proffered evidence
supporting its defense . . . those denials, if believed by
the finder of fact, would permit a verdict for the
Defendant.”). Thus, the Court finds that at this early
stage in the litigation, Cobra has adequately presented a
meritorious defense that weighs in favor setting aside the
case, the Clerk entered default against Cobra on March 28,
2018. (ECF No. 11.) While there is no specific date listed on
the return receipt providing confirmation of the
default's delivery to Cobra, that receipt was entered on
the docket on April 9, 2018. (ECF No. 13.) Within the next
three days, Cobra obtained counsel and filed the pending
motion on April 12, 2018. (ECF No. 14.) As such, the Court
finds that Cobra acted in a reasonably prompt manner upon
receiving notice of the default's entry. Cf.
Moradi, 473 F.2d at ...