United States District Court, D. South Carolina, Spartanburg Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's Motion for
Default Judgment, ECF No. 12, and Defendant's Motion to
Set Aside Default, ECF No. 14. For the reasons below, the
court grants Defendant's Motion to Set Aside Default and
dismisses Plaintiff's Motion as moot.
action was filed on December 11, 2017, alleging that
Defendant withheld a security deposit and instituted a
collections action against the Plaintiff in violation of the
Service Members Civil Relief Act, 50 U.S.C. § 3901, et
seq., and the South Carolina Landlord and Tenant Act, SC Code
Ann. § 27-40-410. Plaintiff served the Summons and
Complaint upon Defendant on December 19, 2017. ECF No. 8.
Defendant did not answer or respond to the Complaint within
the deadline for filing a response. Plaintiff requested an
Entry of Default by the Clerk of Court against Defendant on
January 22, 2018, and the Clerk of Court entered default
against Defendant on the same day. ECF Nos. 9, 10.
counsel contends that due to “clerical oversight and/or
miscommunication” this action was not immediately
assigned to counsel until after the time to answer or
otherwise plead had lapsed. ECF No. 14-1 at 1-2. Further,
Defendant discovered the entry of default on January, 23,
2018. Id. at 2. Defendant's counsel state that
they attempted to confer with Plaintiff's counsel and
requested that they withdraw the entry of default;
Plaintiff's counsel refused. Id. at 2. Defendant
moved to set aside default on January 25, 2018. ECF No. 14.
No response was filed and the time to respond has lapsed.
This matter is now ripe for consideration.
LAW AND ANALYSIS
moves for relief from entry of default pursuant to Rule 55(c)
of the Federal Rules of Civil Procedure. Rule 55(c) states
that “[t]he court may set aside an entry of default for
good cause.” “Traditionally, . . . relief from a
judgment of default should be granted where the defaulting
party acts with due diligence in seeking to set aside the
default and tenders a meritorious defense.” United
States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1983).
“[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.” Id. Other factors to consider include
“the personal responsibility of the defaulting party,
the prejudice to the [nonmoving] 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).
on the facts and factors set forth above, the Court finds
that Defendant has demonstrated good cause to set aside the
default. First, Defendant has established the existence of a
meritorious defense, arguing that Plaintiff did not properly
terminate her lease under the Service Members Civil Relief
Act. Second, there is no evidence of previous dilatory action
on Defendant's behalf, absent failing to answer
Plaintiff's Complaint. Third, there are far less drastic
sanctions available to Plaintiff in comparison to granting
her Motion for Default Judgment. See Colleton Preparatory
Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 418
(4th Cir. 2010) (noting that a motion for an award of
attorney's fees and costs to a plaintiff in opposing the
motion to set aside an entry of default or default judgment
could be appropriate). Fourth, there is no evidence that
Plaintiff will be prejudiced if the Entry of Default is set
aside. “[D]elay in and of itself does not constitute
prejudice to the opposing party.” Id.
Plaintiff failed to respond to the Motion to Set Aside
Default and, therefore, has not proffered any evidence of
in regards to the personal responsibility of the defaulting
party, it is unclear from the Motion to Set Aside Entry of
Default whether the oversight was on behalf of Defendant or
Defendant's counsel. To the extent that Defendant's
counsel are responsible for the oversight, “justice . .
. demands that a blameless party not be disadvantaged by the
errors or neglect of his attorney which cause a final,
involuntary termination of proceedings.”
Moradi, 673 F.2d at 728. To the extent that
Defendant is responsible for the error, the Court finds that
the balance of factors still weighs in favor of setting aside
after applying the factors set above, the Court
GRANTS Defendant's Motion to Set Aside
the Entry of Default, ECF No. 14, and allows Defendants 5
days from the date of this Order to enter a responsive
pleading. Because the Court grants Defendant's ...