United States District Court, D. South Carolina, Charleston Division
Charles Dombek, Justin T. Foxx, The Optimal Insurance Group, Paul Cassano & Paul LoPiccolo, Plaintiffs,
F. Miles Adler, Defendant.
ORDER AND OPINION
Richard M. Gergel United States District Court Judge.
matter is before the Court on Defendant F. Miles Adler's
Motion for a Default Judgment (Dkt. No. 45) and Plaintiff
Paul Cassano's Motion for Enlargement of Time to answer
Defendant Adler's counterclaim (Dkt. No. 48). For the
reasons set forth below, the Court denies Defendant
Adler's motion, and grants Plaintiff Cassano's
February 5, 2019, the Court granted in part and denied in
part Plaintiffs' motion to dismiss Defendant Adler's
counterclaims. (Dkt. No. 40.) The Court dismissed nine out
often of Defendant's counterclaims, with a breach of
contract claim regarding Plaintiff Cassano being the sole
remaining claim. (Id.) Plaintiff Cassano has not
responded to this remaining counterclaim. Defendant Adler now
moves for an entry of default and judgment against Plaintiff
Cassano. (Dkt. No. 45.) Plaintiff Cassano opposes the motion,
and moves to extend his time to respond to the counterclaim.
(Dkt. No. 48.)
Adler's motion for a default judgment is without merit.
This Court's order on the motion to dismiss was issued on
February 5, 2019 (the "Court's Order"). Under
Federal Rule of Civil Procedure 12, Defendant Adler was
required to respond to the remaining claim within fourteen
days, February 19, 2019. However, while Defendant Adler did
not respond, he had been a responsive participant in this
case since the Court's Order, filing his Pre-Trial
Disclosures, a Response to Defendant Adler's Motion, and
a Motion for Extension of Time to file his Answer. (Dkt. Nos.
42, 47, 48.) The Parties have also allegedly been in frequent
contact since the Court's February 5, 2019 order. (Dkt.
No. 48 at 2.)
entry of default has been made pursuant to Rule 55, the Court
may set aside the entry of default for good cause.
Fed.R.Civ.P. 55(c). This good cause standard is liberally
construed "to provide relief from the onerous
consequences of defaults and default judgments."
Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954
(4th Cir. 1987); see also Tolson v Hodge, 411 F.2d
123, 130 (4th Cir. 1969) ("Any doubts about whether
relief should be granted should be resolved in favor of
setting aside the default so that the case may be heard on
the merits."); Colleton Preparatory Acad, Inc. v.
Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir.
2010) ("We have repeatedly expressed a strong preference
that, as a general matter, defaults be avoided and that
claims and defenses be disposed of on their merits.")
speaking, "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). Plaintiff Cassano has clearly moved
with reasonable promptness here, remaining active in the case
after the Court's Order, and responding to Defendant
Adler's motion for a default judgment one day after it
was filed. (Dkt. Nos. 45, 47.) Further, Plaintiff Cassano has
articulated a "meritorious defense." See United
States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982)
("all 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.").
Namely, Cassano, as explained in his motion to dismiss (Dkt.
No. 32-1) alleges that Defendant Adler cannot show that a
contract existed and, regardless of the existence of the
contract, argues in detail that Cassano did not breach any
terms of a contract. (Id. at 9 - 12.) Therefore,
good cause exists to set aside the default.
the Court finds that good cause exists under Federal Rule of
Civil Procedure 6 to extend the time for Plaintiff Cassano to
answer Defendant's Amended Counterclaim (Dkt. No. 30).
The Court finds persuasive the fact that Plaintiff Cassano
has acted throughout this litigation with reasonable
promptness. Further, the Court finds this extension will not
prejudice Defendant as Defendant has been permitted to
previously amend his counterclaims, the Court ruled on
Plaintiffs motion to dismiss less than six weeks ago, and the
Court has granted an extension to the scheduling order in
light of Defendant Adler's recent retention of counsel.
Court therefore DENIES Defendant Adler's
Motion for Default Judgment (Dkt. No. 45), the Entry of
Default (Dkt. No. 49) is SET ASIDE, and the
Court GRANTS Plaintiff Cassano's Motion
for an Enlargement of Time to File an Answer (Dkt. No. 48).
Plaintiff Cassano is directed to file his Answer to Defendant
Adler's Amended Counterclaim (Dkt. No. 30) within
TEN (10) DAYS of this Order.