United States District Court, S.D. West Virginia, Charleston
PAMELA S. THOMPSON-KNUCKLES, Plaintiff,
ERIC D. THOMPSON and EAST CLEVELAND CABLE AND TV AND COMMUNICATIONS, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
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.
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.
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.
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.
initial matter, no default judgment has been entered against
Mr. Thompson, but rather the Clerk has only entered default.
ECF No. 7.
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
Payne ex rel. Estate of Calzada v. Brake, 439 F.3d
198, 204-05 (4th Cir. 2006). Further, the decision of whether
to grant such a motion is within the sound discretion of the
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).
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.
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