United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Amanda Fisk and John
Andreas' motion to set aside the entry of default (ECF
No. 72) and Plaintiff Stephen Rice's motion to strike
(ECF No. 75). For the reasons set forth herein, the motion to
set aside the default is granted and the motion to strike is
denied as moot.
AND PROCEDURAL HISTORY
action arises out of a dispute over wages and benefits
allegedly owed to Rice, who met with Fisk and Lynn
Lichtenfeld on May 9, 2016, and was fired the following day.
and Andreas were served on June 10. According to Fisk and
Andreas's affidavits, they each sent a letter on June 10
to Rice's counsel denying Rice's allegations.
According to Rice's counsel's affidavit, she never
received those letters. On June 14, Fisk allegedly contacted
her homeowner's insurance company about the claim, and
the company denied the claim on July 17. The parties both
agree that Fisk emailed Rice's counsel on July 17.
Rice's counsel interpreted the email as a request for
additional time to answer. On August 15, Fisk and Andreas
mailed letters to Rice's counsel with substantively the
same denials contained in the letters they allegedly mailed
on June 10. On September 3, Rice moved for entry of default
as to Fisk and Andreas. The Clerk entered the default on
September 5. On September 6, Rice submitted a supplement to
his request for entry of default which included the letters
mailed on August 15. Those letters were purportedly received
by Rice's counsel on September 5, the same day that the
Clerk entered default. On September 21, Andreas and Fisk
filed their first responsive pleadings by moving to dismiss
and moving to set aside the entry of default. On October 5,
Rice responded to the motion to set aside the entry of
default and also filed a motion to strike. Fisk and Andreas
did not reply to Rice's response, and they did not
respond to Rice's motion to strike. Accordingly, these
motions are ripe for review.
55(c) of the Federal Rules of Civil Procedure provides that a
“court may set aside an entry of default for good
cause.” “Generally a default should be set aside
where the moving party acts with reasonable promptness and
alleges a meritorious defense.” Consol. Masonry
& Fireproofing, Inc. v. Wagman Constr. Corp., 383
F.2d 249, 251 (4th Cir. 1967). “[A]ll that is necessary
to establish the existence of a ‘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.” United States v.
Moradi, 673 F.2d 725, 727 (4th Cir. 1982). The court
should also consider “whether the [defaulting] party
has a meritorious defense, whether it acts with reasonable
promptness, the personal responsibility of the defaulting
party, the prejudice to the [non-defaulting] 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).
Court finds that Fisk and Andreas have presented a
meritorious defense. Fisk submitted an affidavit stating that
she had nothing to do with Rice's termination and an
exhibit attached to the affidavit further states that she did
not make any decisions regarding Rice. Andreas' affidavit
states that he was not involved in anything relating to
Rice's hiring, retention, or termination. If a jury
believed those claims, it could find for Fisk and Andreas.
Court finds that Fisk and Andreas also took numerous steps in
an attempt to respond to the summons in a timely manner. The
summons given to Fisk and Andreas instructed them to serve a
copy of their answer to Rice's counsel and did not
specify that they must also file an answer with the Court.
Fisk and Andreas state that they mailed letters denying the
allegations to Rice's counsel the same day that they
received the summons. They aver that they submitted the claim
to their homeowner's insurance company and contacted
Rice's counsel by email as soon as the company denied
their claim. Rice's counsel acknowledges that she
received the email and that she accepted it as a request for
additional time to answer, but she does not claim that she
replied to the email. Fisk and Andreas state that they never
received a reply. Taken together, the Court finds that as of
July 17, Rice's counsel was aware that Fisk and Andreas
were attempting to answer the summons. Moreover, though she
was apparently willing to give them more time to answer, she
never communicated that willingness to them. Finally, Fisk
and Andreas mailed another pair of letters on August 15,
which should have reached Rice's counsel before Rice
filed for entry of default. Apparently, the letters arrived
two days after Rice filed for entry of default, and on the
same day that the Clerk entered the default. The Court
concludes that Fisk and Andreas acted with reasonable
promptness in an attempt to follow the directions of the
summons and that Rice has not shown how he might be
prejudiced by allowing them to defend themselves on the
merits. In light of these findings and the fact that Fisk and
Andreas have put forth a meritorious defense, the Court
grants their motion to set aside the default.
motion requests that the Court strike Fisk and Andreas'
answer. However, Fisk and Andreas have not yet filed an
answer with the Court. In his brief opposing the motion to
set aside the entry of default, Rice refers to the letters
mailed on August 15 as Fisk and Andreas' answer. Those
letters were filed with the Court as exhibits to Rice's
own Supplement to Request for Default. Since the letters are
relevant to setting aside the entry of default, as discussed
above, the Court will not strike them from Rice's own
filing. Insofar as Rice's motion asks the Court to strike
an answer that has not yet been filed, it is denied as moot.
reasons stated herein, Fisk and Andreas' motion to set
aside the entry of default is GRANTED.
Rice's motion to strike is DENIED AS