United States District Court, D. South Carolina, Charleston Division
Anthony M. Fidrych and Patricia Anne Fidrych, Plaintiffs,
v.
Marriott International, Inc., Defendant.
ORDER
PATRICK MICHAEL DUFFY, UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on Defendant Marriott
International, Inc.'s motion to set aside default
pursuant to Rules 55(c) and 60(b) of the Federal Rules of
Civil Procedure (ECF No. 13). For the reasons set forth
herein, Marriott's motion is granted.
BACKGROUND
This
action arises out of an accident that occurred at the Boscolo
Milano hotel in Milan, Italy. The Fidryches allege that the
Boscolo Milano is one of Marriott's Autograph Collection
of hotels. Plaintiff Anthony Fidrych travelled to Milan as a
pilot for the Gulfstream Aerospace Corporation. While in
Milan, he stayed at the Boscolo Milano, and he was injured
when a shower door at the hotel shattered. He alleges that he
is permanently disabled as a result of the accident and is no
longer able to fly.
PROCEDURAL
HISTORY
The
Fidryches filed their complaint on August 17, 2017. Marriott
did not file an answer, and the Fidryches moved for an entry
of default on September 20. The Clerk entered the default the
next day. Then, on October 10, the Fidryches moved for a
default judgment. The Court granted that motion on October
11, and noticed a hearing on damages for December 12.
Marriott then moved to set aside the default and the default
judgment on October 17. The Fidryches responded on October
31, and Marriott replied on November 7. Accordingly, this
matter is now ripe for consideration.
LEGAL
STANDARD
Rule
55(c) of the Federal Rules of Civil Procedure provides that
“[t]he court may set aside an entry of default for good
cause, and it may set aside a final default judgment under
Rule 60(b).” In considering a motion to set aside an
entry of default, the Fourth Circuit has stated:
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
drastic.
Colleton
Preparatory Acad., Inc. v. Hoover Universal, Inc., 616
F.3d 413, 417 (4th Cir. 2010) (quoting Payne ex rel.
Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th
Cir. 2006)). Additionally, 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.” Id.
The Fourth Circuit uses the same factors to analyze Rule
55(c) and 60(b) motions, but “the burden on a movant
seeking relief under the two rules is not the same.”
Id. at 420. “Rule 60(b) motions request relief
from judgment, which implicates an interest in finality and
repose, . . . a situation that is not present when default
has been entered under Rule 55(a) and no judgment has been
rendered.” Id. (internal quotation marks
omitted). “Therefore, while an analysis under each rule
employs similar factors, Rule 60(b)'s excusable neglect
standard is a more onerous standard than Rule 55(c)'s
good cause standard, which is more forgiving of defaulting
parties because it does not implicate any interest in
finality.” Id. (internal quotation marks
omitted).
DISCUSSION
Before
addressing the merits of Marriott's motion, the Court
must determine whether to analyze Marriott's motion under
Rule 55(c) or Rule 60(b). A significant portion of
Marriott's initial argument in favor of applying Rule
55(c) pertains to the lack of notice it received as to the
Fidryches' motion for entry of default, the Clerk's
entry of default, and the Fidryches' motion for a default
judgment. However, the law is clear that “a defaulting
party who has failed to appear, thereby manifesting no
intention to defend, is not entitled to notice of the
application for a default judgment under either Rule 55(b)(1)
or Rule 55(b)(2).” 10A Charles Alan Wright et al.,
Federal Practice and Procedure § 2687 (4th ed.
2013) (collecting cases). Additionally, Rule 55(a) does not
require that the Clerk give notice of entry of default, and
in any event such entry is publicly noticed on PACER. See
Hartford Cas. Ins. Co. v. Jenkins, No. 09-0514-WS-M,
2009 WL 4898319, at *1 n.4 (S.D. Ala. Dec. 14, 2009)
(collecting cases). Accordingly, any argument as to notice on
those grounds is rejected.
Marriott
also argues that the Court's entry of the default
judgment was premature because the time allotted for Marriott
to respond to the Fidryches' motion for default judgment
had not yet elapsed. As stated above, it is clear that a
party who has not appeared in an action is not entitled to
notice of the application for a default judgment. The Court
concluded that no response to the Fidryches' motion for
entry of a default judgment was forthcoming because Marriott
had failed to appear in the action after having been properly
served, and Marriott had not filed a motion seeking to set
aside the Clerk's entry of default in the twenty days
before the Fidryches filed their motion for a default
judgment. In fact, after granting the Fidryches' motion
for a default judgment, the Court gave Marriott notice of the
default judgment damages hearing even though no such notice
is required. Five days after the Court entered the default
judgment and noticed the damages hearing, Marriott's
counsel first filed a notice of appearance, and the next day
filed a motion to set aside the default and default judgment.
That motion, filed on October 17, was still filed before
Marriott's October 24 deadline to respond to the
Fidryches' motion for default judgment.
Without
affirmatively saying so, and without citation to any
authority, the Fidryches seem to claim that Marriott was not
entitled to respond to their motion for default judgment
because Marriott had failed to appear and was therefore not
entitled to notice under Rule 55(b)(2). The Court is unaware
of any authority placing such a restriction on a party that
has failed to appear, and will take into account the fact
that the default judgment was entered before Marriott's
time to respond to the Fidryches' motion ...