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Thomas v. Allen Lund Co., Inc.

United States District Court, M.D. North Carolina

March 13, 2018

WHITNEY NICOLE THOMAS, Administrator of the Estate of Kenneth N. Jefferson, Plaintiff,
ALLEN LUND COMPANY, INC., et al., Defendants.


          L. Patrick Auld United States Magistrate Judge

         This case comes before the Court on the “Motion to Set Aside Entry of Default” (Docket Entry 70)[1] (the “Motion”) filed by defendant Daniel Santiago Serna (“Serna”). For the reasons that follow, the Court will grant the Motion and set aside the Entry of Default (Docket Entry 66).[2]


         This lawsuit arises from a July 2015 vehicular accident in North Carolina that killed Kenneth N. Jefferson (“Jefferson”). (See Docket Entry 1 (the “Complaint”) at 2; see also, e.g., Docket Entry 7 (“EC Trucking's Answer”), ¶ 6 (asserting as affirmative defense that “the person or persons who decided that the motorcyclists and passengers involved in the subject accident should stop where they were stopped when the accident occurred, may be responsible in whole or in part for this accident and the resulting injuries, deaths and damages”).)[3] On July 14, 2017, Whitney Nicole Thomas, acting as administrator of Jefferson's estate, (the “Plaintiff”) initiated this negligence-based action against Serna and five other defendants in the United States District Court for the Southern District of Florida (the “Florida Court”). (See generally Docket Entry 1.) As relevant to the Motion, the Complaint alleges that Serna negligently “drove [a] tractor trailer off the roadway, striking and killing . . . Jefferson.” (Id., ¶ 12.) It further alleges that Serna and Jacob Salazar, another defendant, “were each the employee, agent, servant, or independent contractor for” EC Trucking Enterprises, Inc. (“EC Trucking”) “and operating in the course and scope of this employment” when the accident occurred. (Id., ¶ 24.) Finally, the Complaint alleges that certain incidents in Serna's past rendered him an unfit driver. (See, e.g., id., ¶¶ 30, 40.) On August 3, 2017, EC Trucking answered the Complaint, denying all allegations other than that “Serna had a duty to drive in a safe and reasonable manner and obey all traffic and other commercial motor vehicle safety laws” (id., ¶ 11). (See Docket Entry 7, ¶¶ 1-3.) In addition, EC Trucking's Answer raised multiple affirmative defenses, including that Jefferson bore responsibility for the accident and/or that “third persons over whom [EC Trucking] had no control” bore such responsibility. (Id., ¶¶ 4-8.) Two weeks later, Plaintiff served the Complaint on Serna. (See Docket Entry 60 at 1 (indicating service on August 18, 2017).) The summons instructed Serna to serve his response to the Complaint on Plaintiff's attorney, “David J. Ventura” of “Crumley Roberts, LLP, ” within 21 days of receiving the summons. (Id. at 2.) In compliance with this instruction, Serna promptly sent his response to “David J. Ventura” at “Crumley Roberts.” (Docket Entry 73-2 (the “Response”) at 1, 3.)[4]

         According to the English translation Plaintiff provided of this handwritten Spanish document (see id. at 1-2), Serna's Response asks Ventura “to guide [him] through this process, ” as he lacks appropriate resources to hire a lawyer and “[is] alone in this country.” (Id. at 3.) The Response further indicates that Serna “will actively participate in this lawsuit because the truth has been hidden and the true responsible party is Mr. Jacob Salazar, ” although EC Trucking and “Commonwealth Dairy LLC” also bear some responsibility for the accident. (Id.)[5] Serna further denied acting negligently (see id. (“I was not negligent”)) and disputed the Complaint's assertion that incidents in his past rendered him an unfit driver (see id. (“I was young and got into trouble, but today I'm an adult.”)). Serna's Response concludes:

I really appreciate your help Mr. Ventura and guidance. I am alone in this county and I do not know how the system works nor do I have anyone to help me. Have a good day Mr. Ventura.
Thanks a bunch.


         Plaintiff's counsel sent Serna's Response to EC Trucking's counsel (see Docket Entry 73-3 at 1), who had previously indicated to Plaintiff's counsel that he “was retained to represent EC Trucking . . . and Daniel Serna in this lawsuit” (Docket Entry 73-1 at 1). On September 4, 2017, EC Trucking's counsel sent an email to Plaintiff's counsel, which stated, inter alia:

Thank you for sending me the proof of service on Mr. Serna and his letter to you. It seems that he may not want me to represent him. While I try to get to the bottom of that, may I request an extension of time to respond to the lawsuit on his behalf?

(Docket Entry 73-3 at 1.) On September 13, 2017, EC Trucking's counsel emailed Plaintiff's counsel again, stating, in relevant part:

I just spoke with the carrier and it will be retaining separate counsel to represent Mr. Serna. Given that many of the law offices down here are not yet up and running because of the hurricane, this may take a week or two; I (and the carrier) appreciate your patience and courtesy and you should be hearing from Mr. Serna's counsel in the near future.

(Docket Entry 73-4 at 1.) Correspondence between Plaintiff's counsel and EC Trucking's counsel on December 13, 2017, reveals that “separate counsel (Jeff Johnson) was retained for Serna in [a related federal] case” and participated in “the global settlement conference.” (Docket Entry 73-5 at 2.) However, no attorney appeared on Serna's behalf in this lawsuit prior to the Entry of Default. (See Docket Entries dated July 14, 2017, to Dec. 15, 2017.)

         In late August 2017, defendant Allen Lund Company, Inc. (“ALC”) moved to transfer this action from the Florida Court to this Court. (See Docket Entry 40.) Over Plaintiff's opposition, the Florida Court granted ALC's transfer request. (See Docket Entry 55 (the “Transfer Order”) at 1, 3.) In so doing, the Florida Court noted that Plaintiff's “negligent selection and vicarious liability . . . . claims against ALC and EC Trucking necessarily require Plaintiff to establish that Mr. Serna committed a negligent act that was foreseeable prior to establishing a claim against ALC and EC Trucking.” (Id. at 2.)[6] The Florida Court further observed that Plaintiff's negligence claim against Serna “revolves around the motor vehicle accident that occurred in North Carolina, ” and that ...

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