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Thompson-Knuckles v. Thompson

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

February 19, 2019

PAMELA S. THOMPSON-KNUCKLES, Plaintiff,
v.
ERIC D. THOMPSON and EAST CLEVELAND CABLE AND TV AND COMMUNICATIONS, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr. Senior United States District Judge

         Pending is defendant Eric Thompson's motion to amend his motion in opposition to entry of default judgment to a motion to set aside default judgment, filed February 1, 2019. Also pending is plaintiff's motion for entry of default judgment against Eric Thompson, filed February 15, 2019.

         I. Background

         The plaintiff initiated this action against the defendants on November 5, 2018. The summons for Mr. Thompson was issued November 6, 2018 and was returned executed on December 19, 2018. The plaintiff moved for entry of default against Mr. Thompson on January 15, 2019, as it was her belief that an answer to the complaint was due on January 4, 2019. On January 16, 2019, no answer or response having been filed, the Clerk entered default against Mr. Thompson.

         On January 18, 2019, the defendants filed a joint answer to plaintiff's complaint as well as a response in opposition to plaintiff's motion for default judgment. Defendant Thompson's counsel maintains that since he had not appeared in the case, he did not receive service through the court's CM/ECF system nor did he receive notice of the clerk's entry of default against Mr. Thompson. Inasmuch as defendant's counsel believes that a motion to set aside default is the more appropriate mechanism by which to contest the entry of default against Mr. Thompson, he filed this motion to amend his motion in opposition to plaintiff's motion for entry of default to a motion to set aside the default judgment. The accompanying memorandum argues that the default should be set aside. See ECF Nos. 14, 15.

         Plaintiff filed a response in opposition to defendant Thompson's motion in opposition to plaintiff's motion for entry of default judgment on February 1, 2019, ECF No. 13, as well as a memorandum in opposition to this motion, on February 15, 2019. ECF No. 17.

         As an initial matter, no default judgment has been entered against Mr. Thompson, but rather the Clerk has only entered default. ECF No. 7.

         II. Analysis

         Federal Rule of Civil Procedure 55(c) provides pertinently as follows: “The court may set aside an entry of default for good cause.” 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).[1] Further, the decision of whether to grant such a motion is within the sound discretion of the court. Id.

         Defendant Thompson contends that he did not communicate to his counsel that he was served on December 14, 2018. Def.'s Mem., ECF No. 15, at 3. Defendant's counsel notes that while he was aware of the filing of the complaint after communicating with plaintiff's counsel on November 5, 2018, he did not become aware that service had been perfected until January 17, 2019. Id. Defendant's counsel further asserts that this oversight occurred due to a mistake by an employee of counsel's firm who neglected to inform counsel that Mr. Thompson left, at the firm, on December 19, 2018, a copy of the complaint which had been properly served upon him. Id. (citing Priestly Aff., ECF No. 14-1).

         In arguing against setting aside default, the plaintiff first refers to the “meritorious defense” factor described in Payne and contends that there is no factual evidence in defendant's pleadings which suggests that he has a meritorious defense to plaintiff's claims. Pl.'s Resp., ECF No. 13, at 4.

         “A meritorious defense requires a proffer of evidence which would permit a finding for the defaulting party or which would establish a valid counterclaim. ‘The underlying concern is ... whether there is some possibility that the outcome ... after a full trial will be contrary to the result achieved by the default.'” Augusta Fiberglass ...


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