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Inc. v. Duncan

United States District Court, W.D. North Carolina, Asheville Division

August 8, 2014

WHY DRIVE 55, INC., Plaintiffs,
v.
BONNIE DUNCAN JOSEPH W. DUNCAN STEVEN J ALLEN DOVE AIR, INC. CONAIR JET SALES, INC. JOHN DOE EDD CONN JANE DOE ROBERT HETTINGER BILL JOHNSON ALYSSA DUNCAN, Defendants.

ORDER

MAX O. COGBURN, Jr., District Judge.

THIS MATTER is before the court on defendant Edd Conn's Motion to Set Aside Default & Default Judgment (#110). While plaintiff contests such motion, it is clear to the court that the Clerk of Court improvidently entered default even though Defendant Conn, proceeding pro se at the time, had entered an appearance and filed a pleading answering the claims against him. The fact that such pro se litigant did not then answer the subsequently filed Amended Complaint was not a sufficient reason for plaintiff to seek default as it appears that the amended pleading added no additional material claims against such defendant. Further, it appears that counsel for plaintiff was likely aware as early as 2012 that Defendant Conn had changed his mailing address and, without any doubt, knew of this new address not later than December 2013, a fact not brought to this court's attention when plaintiff filed its second Motion for Default Judgment two months later.

In determining whether to set aside the default and entry of default judgment against Defendant Conn, the court is guided by well-established precedent in the Fourth Circuit: "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 v. Hodge , 411 F.2d 123, 130 (4th Cir. 1969). Rule 55(c) provides that this court may "set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Fed.R.Civ.P. 55(c). In turn, Rule 60(b)(1) allows a court to relieve a party from a final judgment for "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1). Where the judgment sought to be set aside was obtained through default, a court should consider:

(1) whether the moving party has a meritorious defense to the action;
(2) whether the moving party acted with reasonable promptness;
(3) who bore responsibility for the default;
(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.

Augusta Fiberglass, Inc. v. Fodor Contracting Corp. , 843 F.2d 808, 811 (4th Cir. 1988); Park Corp. v. Lexington Ins. Co. , 812 F.2d 894, 896 (4th Cir. 1987).

Foremost, it appears that the default and default judgment was improvidently entered based on plaintiff's March 11, 2013, representation to the court that Defendant Conn failed to answer the First Amended Complaint. See Motion for Entry of Default (#89, [First] Affidavit of Sean Soboleski at ΒΆ 5. In relevant part, Mr. Soboleski represented to this court by affidavit that Defendant Conn "has not filed an Answer or other responsive pleading to Plaintiff's First Amended Complaint, although he was deemed to have appeared in this action by the Court's Order [23] when Conn appeared by letter in response to the initial Complaint." Id . This averment is not entirely true as the docket at the time of such representation provided that Defendant Conn had on March 13, 2012, filed with the court his "ANSWER to 1 Complaint, 22 Amended Complaint by Edd Conn. (nll) (Entered: 03/13/2012)" (#33). That Answer provided as follows:

Dear Sir,

Edd Conn personal and representing Conalr Sales do hereby answer the lawsuit filed by Plaintiff Why Drive 55 Inc.

I have never had any dealings with this Corporation in any way. I have never met Plaintiff or had any business with him until this lawsuit. I have never seen his aircraft, logbooks or ever met the buyer who purchased the aircraft in Mexico. I ask the court to remove me from this frivolous lawsuit ...


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