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Miller v. Cobra Enterprises of Utah, Inc.

United States District Court, S.D. West Virginia, Charleston Division

May 25, 2018

FRANK KENNETH MILLER, JR., Plaintiff,
v.
COBRA ENTERPRISES OF UTAH, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE.

         Before 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.

         I. BACKGROUND

         Plaintiff 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.)

         On 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.

         II. LEGAL STANDARD

         Under 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”).

         “[R]elief 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).

         III. DISCUSSION

         The 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).

         A. Meritorious Defense

         Under 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 default.

         B. Reasonable Promptness

         In this 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 ...


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