United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
before the Court is Defendant's motion to vacate entry of
default and to accept the filing of Defendant's Answer
and Amended Answer on February 15, 2019 and February 20,
2019, respectively. (ECF No. 11.) For the reasons discussed
more fully herein, the Court GRANTS the
motion. (ECF No. 11.)
case arises out of an employment dispute between Plaintiff
Steve Higginbotham (“Higginbotham”) and his
former employer Defendant Red Roof Inns, Inc. (“Red
Roof”) regarding Higginbotham's termination.
(See ECF No. 1 at 1.) Higginbotham filed the present
action in this Court on December 5, 2018, alleging that Red
Roof terminated his employment as retaliation for
Higginbotham taking leave in violation of the Family and
Medical Leave Act of 1993 (“FMLA”) and the West
Virginia Human Rights Act (“WVHRA”). (See
id.) Service was accepted on behalf of Red Roof by the
Secretary of State, Red Roof's statutory
attorney-in-fact. (ECF No. 4.)
February 13, 2019, Higginbotham filed a request for entry of
default against Red Roof and attached an affidavit in support
of that request. (ECF No. 5.) On February 15, 2019, the Clerk
of this Court entered default against Red Roof pursuant to
Federal Rule of Civil Procedure 55(a). (ECF No. 7.) Red Roof
filed the present Motion to Vacate Entry of Default on
February 22, 2019. (ECF No. 11.) Higginbotham timely
responded to the motion, (ECF No. 12), and Red Roof timely
replied, (ECF No. 13). As such, the motion is fully briefed
and ripe for adjudication.
Federal Rule of Civil Procedure 55(a), 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 opposing party. This Rule
further provides, however, that district courts have the
discretion to set aside an order of default “for good
cause shown.” Fed.R.Civ.P. 55(c). 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).
should grant relief from a judgment of default “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). 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 v. Brake, 439 F.3d 198, 204-05
(4th Cir. 2006) (citations omitted).
evaluating Red Roof's motion, the Court must address the
above relevant factors. “In weighing and evaluating
these factors, the Court must consider the “extensive
line of decisions that [hold] Rule [ ] 55(c) . . . [should]
be liberally construed in order to provide relief from the
onerous consequences of defaults and default
judgments.” Hanson & Morgan Livestock, Inc. v.
B4 Cattle Co., No. 5:07-cv-00330, 2007 WL 4305606, at *2
(S.D. W.Va. Dec. 7, 2007) (quoting Tolson v. Hodge,
411 F.2d 123, 130 (4th Cir.1969)). Thus, “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.” Tolson, 411 F.2d at 130.
‘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.”
Moradi, 673 F.2d at 727 (citing Cent. Operating
Co. v. Util. Workers of Am., 491 F.2d 245, 252 n.8 (4th
Cir. 1974)); see also Wainwright's Vacations, LLC v.
Pan Am. Airways Corp., 130 F.Supp.2d 712, 718 (D. Md.
2001) (“[T]he 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.”). Even a tenuous defense weighs 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.
stated above, Higginbotham asserts claims against Red Roof
for discrimination/retaliation for Red Roof allegedly
terminating Higginbotham because Higginbotham took FMLA
leave. (See ECF No. 1.) In its Amended Answer, Red
Roof raises thirteen defenses to the Complaint, including
failure to state a claim upon which relief can be granted and
collateral estoppel. (See ECF No. 10 at 5-7.)
Additionally, in support of its present motion, Red Roof
provided evidence in support of its defense that it assert
shows Higginbotham was not terminated for a retaliatory or
discriminatory reason, but because Higginbotham allegedly
failed to notify Red Roof he was taking FMLA leave after Red
Roof had told him that he must do so. (See ECF No.
11 at 4-5; ECF No. 13 at 2.) If Red Roof proves any
combination of these defenses, the jury could find in its
favor. See e.g., Settle v. S.W. Rodger Co.
Inc., No. 98-2312, 1999 WL 486643, at *4 (4th Cir. July
12, 1999) (“As to Settle's retaliation claim under
the FMLA, Settle failed to show that he was terminated on
account of any assumed availment of his FMLA rights.”).
Thus, the Court finds that at this early stage in the
litigation, Red Roof has adequately presented a meritorious
defense that weighs in favor of setting aside the default.