United States District Court, D. South Carolina, Charleston Division
OPINION & ORDER
Margaret B. Seymour Senior United States District Judge
matter comes before the court upon Defendant Daniel Dowd and
Dana Foster's amended motion to lift entry of default
(collectively referred as “Defendants”). ECF No.
14. Plaintiff Tina Huey does not oppose Defendants'
motion. ECF No. 16. For the reasons stated herein,
Defendants' amended motion to lift entry of default is
RELEVANT AND PROCEDURAL HISTORY
January 29, 2018, Plaintiff filed a negligence action against
Defendants for personal injuries sustained in a motor vehicle
accident that occurred on or about April 10, 2016. ECF No. 1,
Compl. ¶ 11. Defendant Dowd owned the motor vehicle
which Defendant Foster operated at the time of the accident.
Compl. ¶ 10. Plaintiff asserts causes of actions for
negligence against Defendant Foster (First Cause of Action)
and against Defendant Dowd for negligent entrustment of a
motor vehicle (Second Cause of Action). Compl. ¶¶
15, 18. Plaintiff seeks compensatory and punitive damages.
Compl. ¶ 16.
March 19, 2018, Plaintiff filed proof of service indicating
that a process server left a copy of the summons and
complaint at the usual place of abode for Defendant Foster at
1 Mitchell Circle, Ivoryton, Connecticut, and for Defendant
Dowd at 24 Stanford Hill Road, Essex, Connecticut. ECF Nos.
5, 6. On April 24, 2018, Plaintiff filed a request for entry
of default pursuant to Fed.R.Civ.P. 55(a) against Defendants
for failure to file a response to the complaint within the
time prescribed. ECF No. 9. A clerk's entry of default
against Defendants was entered on April 24, 2018. ECF No. 10.
1, 2018, Defendants filed a motion to lift entry of default,
ECF No. 11, and an amended motion to lift entry of default on
May 16, 2018,  which included an affidavit from Defendant
Dowd, ECF No. 16. In his affidavit, Defendant Dowd states
that he is a citizen and resident of Charleston County, South
Carolina. ECF No. 16, ¶ 1. He states that he has resided
in Charleston, South Carolina since January 1, 2018, and has
“not resided in Connecticut in approximately 10
years.” Id. ¶¶ 4-5. He further
states that he has “not been served with suit papers in
this matter.” Id. ¶ 6. In response,
Plaintiff informed the court that she does not oppose the
lifting of the entry of default against Defendants. ECF No.
Fed R. Civ. P. 55(a), “[w]hen a party against whom
judgment for affirmative relief is sought has failed to plead
or otherwise defend . . . the Clerk of Court must enter a
default.” A court may set aside an entry of default
“for good cause shown.” Fed.R.Civ.P. 55(c).
“Fed. R. Civ. P. 55(c) is liberally construed in favor
of setting aside defaults because the law prefers
adjudication on the merits to default judgments.”
Campodonico v. Stonebreaker, C/A No.
4:15-cv-3373-RMG, 2016 WL 1064490, at *2 (D.S.C. Mar. 15,
2016). “The Fourth Circuit has set forth a six-factor
standard for relief from default under Rule 55(c):
‘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.'”
Id. at *2 (citing Payne ex rel. Estate of
Calzada v. Blake, 439 F.3d 198, 204-05 (4th Cir. 2006).
court considers whether there is good cause to set aside the
entry of default in the instant case. Although Defendants
failed to timely file a response to Plaintiff's
Complaint, they have since filed an Answer and a motion to
set aside the Clerk's entry of default. See ECF
Nos. 11, 13. Both of these actions were taken within days of
Defendants retaining counsel on May 1, 2018, indicating to
the court that Defendants are seeking to act with reasonable
promptness. Because this case is at an early stage in
litigation, the court finds no prejudice to Plaintiff by
allowing the entry of default to be set aside. There is also
no evidence of a history of dilatory action by Defendants at
this early stage of litigation. Finally, there are sanctions
available that are less drastic than the entry of default
against Defendants. 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 plaintiff in opposing the motion to set
aside an entry of default or default judgment could be
respect to the existence of a meritorious defense, the court
finds that Defendants have made a showing of the existence a
meritorious defense. “A meritorious defense requires a
‘proffer of evidence, which if believed, would permit
either the court or the jury to find for the defaulting
party.'” Campodonico, 2016 WL 1064490, at
*2. Defendants assert several defenses in their Answer and in
their motion to set aside the entry of default. See
ECF Nos. 13, 14. Some of the defenses include: (1) improper
service of process; (2) lack of personal jurisdiction; (3)
absence of injuries; (4) bifurcated jury trial; and (5)
failure to state sufficient facts. See Affirmative
Defenses, ECF No. 13 at 3-5. In their motion, Defendants
dispute causation and damages with regards to Plaintiff's
allegations of injuries. ECF No. 14-1 at 2. Specifically,
Defendant Dowd alleges that he has “a meritorious
defense against the negligent entrustment allegation as under
South Carolina law, negligent entrustment is only recognized
under limited circumstances.” Id.
on Defendants' Answer and motion to set aside the entry
of the default, the court finds that Defendants allege facts
that, if believed, would constitute a meritorious defense to
Plaintiff's claims. See Blackwood v. Georgetown Hosp.
Systems, C/A No. 2:12-02702-RMG, 2013 WL 1342523, at *1
(D.S.C Apr. 2, 2013) (noting that Defendant's proposed
Answer contains allegations and affirmative defenses which
demonstrate a meritorious defense); Jenkins for William
Byrd Custom Home Builders, Inc. v. Builders Ins. Grp.,
C/A No. 9:18-cv-466, 2018 WL 1305548 (D.S.C. Mar. 12, 2018)
(holding that the Defendant has established the existence of
a meritorious defense as it has filed an Answer and
counterclaim); Advanced Commercial Credit Int't (ACI)
Ltd. v. CitiSculpt, LLC, C/A No. 6:17-cv-00069-DCC, 2018
WL 1578817 (D.S.C. Apr. 2, 2018) (holding that Defendant has
established the existence of a meritorious defense as it has
filed an Answer, and an Affidavit outlining the factual
predicate for the defenses asserted in the Answer).
remaining factor, the personal responsibility of the
defaulting party, weighs in favor of Defendant Dowd. The
record indicates that proper service was not effectuated upon
Defendant Dowd, because it was left at an address located in
Connecticut, in which Defendant Dowd has not resided in the
past ten years. See Affidavit, ECF No. 14-2.
Accordingly, the court finds that Defendant Dowd has
satisfied all six factors and has shown good cause to set
aside the entry of default.
as to Defendant Foster, the court is unaware of the personal
circumstances that prevented her from timely filing an
Answer. Because there are five factors that weigh in favor of
relieving Defendant Foster of the entry of default, and one
factor that neither weighs clearly nor against relief, the
court finds that there is good ...