United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is a Motion to Set Aside Default [ECF No.
35] filed by Defendant Synchrony Bank
(“Synchrony”). The plaintiffs did not file a
response opposing this motion, and the time to file a
response has now passed. For the reasons discussed below and
no objection appearing, this motion is
GRANTED, and the entry of default is
plaintiffs commenced this civil action by filing a complaint
in the Circuit Court of Kanawha County, West Virginia on May
28, 2018. The civil action was subsequently removed to this
court on June 4, 2018 by Defendant Trans Union, LLC on the
basis of federal question jurisdiction because the plaintiffs
assert claims against the defendants, including Synchrony,
under the Fair Credit Reporting Act, 15 U.S.C. § 1681,
plaintiffs filed a Motion for Default Judgment [ECF No. 17]
against Synchrony on July 5, 2018. The court found that the
plaintiffs' Motion was procedurally improper but, in the
interest of expediency, ordered the Clerk to treat the Motion
as an application to the Clerk for a Rule 55(a) entry of
default as to Synchrony. The Clerk entered default against
Synchrony on August 7, 2018. On October 15, 2018, Synchrony
filed its Motion to Set Aside Default [ECF No. 35], arguing
that good cause exists to set aside the entry of default
because service of process on Synchrony was improper.
55(c) of the Federal Rules of Civil Procedure states that a
court “may set aside entry of default for good
cause.” In assessing a motion to set aside an entry of
default, a district court is to consider (1) whether the
moving party has a meritorious defense to the action; (2)
whether the moving party acted with reasonable promptness;
(3) the personal responsibility of the defaulting party; (4)
any unfair prejudice to the non-moving party; (5) whether
there is a history of dilatory action; and (6) the
availability of sanctions less drastic. Colleton
Preparatory Acad., Inc. v. Hoover Universal, Inc., 616
F.3d 413, 417 (4th Cir. 2010); Payne ex rel. Estate of
Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006).
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, 616 F.3d at 417. Notably,
the “good cause” standard for setting aside an
entry of default pursuant to Rule 55(c) is less onerous than
the “excusable neglect” standard for setting
aside a default judgment pursuant to Rule 60(b). Id.
has failed to specifically address any of the Payne
factors in its Motion to Set Aside Default. Instead,
Synchrony's sole argument in support of its Motion is
that good cause exists because service of process on
Synchrony was improper. However, the Fourth Circuit
“has not yet explicitly adopted a per se rule
to that effect.” Turpin v. Wellpoint Cos., No.
3:10CV850-HEH, 2011 WL 1086482, at *2 n.6 (E.D. Va. Mar. 23,
2011) (declining to decide whether the Fourth Circuit would
endorse this “blanket rule” and applying the
multi-factor approach where the defendant argued that the
court must set aside an entry of default if service is
improper). Nonetheless, as in Turpin, the court need
not decide whether an entry of default must be set aside
where service is improper because the multi-factor approach
favors setting aside the Clerk's entry of default in this
first Payne factor, whether the moving party has
presented a meritorious defense, weighs against setting aside
the entry of default. To find a meritorious defense,
“the defaulting party must proffer evidence which, if
believed, would permit the factfinder to find for the
defaulting party after a trial on the merits, or would
establish a valid counterclaim.” Burton v. TJX
Cos., No. 3:07-CV-760, 2008 WL 1944033, at *3 (E.D. Va.
May 1, 2008) (citing Augusta Fiberglass Coatings, Inc. v.
Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir.
1988)). There must be facts to support the defense, not just
conclusory statements. Id.
Synchrony has failed to articulate a meritorious defense. Its
Motion merely states that service was improper and that it
desires to defend this civil action on the merits. At best,
Synchrony has only alleged in a conclusory fashion that it
has a meritorious defense. Likewise, no evidence in the
record suggests that Synchrony has a meritorious ...