Free Request for Oral Argument - District Court of Delaware - Delaware

Case 1:04-cv-01469-SLR Document 12-3 Filed 06/16/2005 Page 1 of 2
Not Reported in F.Supp.2d Page l
2004 WL 609320 (D.Del.)
(Cite as: 2004 WL 609320 (D.Del.))
H not been prejudiced by any delay. Further, Defendant
contends that he has a meritorious defense of lack of
° Motions piontiings and lfilings subject matter jurisdiction. Defendant also maintains
that his failure to file an answer was not due to
. Only the Westlaw citation is currently available. willful ccnuuct cl` had faith.
Although no default has been entered in the instant
Unitod Stotos Disttiot Court, case, the Court concludes that the factors enumerated
D_ Doiowoio by the Third Circuit in United States v. ,59 55,518.05 in
K_ Kay SI.IEARIN’ piointifi; U.S. Currencv, 728 F.2d 192 (3d (211.1984), for
v_ setting aside an entry of default counsel against
Timothy W_ POQLE, Doi`ondont_ granting Plaintiffs Motion. A decision to vacate the
No_ Civ_A• 03-5gg _I_IF_ entry of default is left to the discretion of the district
court. Id. In making this determination, courts
Moton 23, 20()4_ consider: 1) whether the plaintiff will be prejudiced if
K. Kay sheann, wiinnngton, Derawaie, praintitr the eeurt sets aside the default; 2) whether the
pto so defendant has a meritorious defense; and 3) whether
the default was a result of the defendant's culpable
Bnioo C_ Horton, of Akin & Horton, P_A_, conduct. Id. In the Third Circuit, defaults are
Wiiniington, Delaware, for Dofondont generally disfavored, and therefore, courts resolve, in
close cases, doubts in favor of resolving the cases on
MEMORANDUM OPINION the merits. Zawadski De Bueno v. Bueno Castro 822
F .2d 416, 420 (3d C ir.l987) (citing Gross v. Stereo
FAR_NAN’ j_ Comgmtent Sys. Inc., 700 F.2d 120, 122 {3d
Cir.l983)); Farnese v. Gabnusco, 687 F.2d 761. 764
*1 Presently before the Court is Plaintiffs Motion
for Entry of Default Judgment and Supporting
Affidavit. (D.I.10.) For the reasons set forth herow, Plaintiff has net alleged that she will he preiudieed
tho Court Wiii deny tho Motion_ by Defendant's failure to timely file an answer. Thus,
the first factor weighs against the entry of default.
BACKGROUND The Court also concludes that the second factor
praintirr hreti the instant lawsuit on June 24, 2003 Weighs against entry ef default- A defense is
(D_I_2) and tho Dofondont was soivod on Iniy 29, meritorious ii proved at trial, it would be a complete
2003_ (D_I_g_) The Dofondont did not tinioiy tiio an defense. $ 55,518.05, 728 F.2d. at 195 (citing Tozer v.
answer. By her Motion, Plaintiff moves for entry of
default judgment, [FN], 13d Cir.195l Q). Defendant contends that the Court is
without subject matter jurisdiction over Plaintiffs
Aiti-Iongh piointiff movos for ontiy of claims. The defense of lack of subject matter
default judgment, a pany nnist move tor iurisdietien is aeenrplete defense-
entry of default prior to requesting the entry
of tieranrt judgment. See rea.1<.cin.1>. ssga). Next, the Ceurt eeneludes that the Defendants
Booonso piointiff is proceeding pro so, tho conduct does not weigh strongly in favor of entering
Court Wiii construe piointiftrs Motion as o default. Legal counsel for the Defendant asserts that
motion for entry of default. he was on vacation at the time he was forwarded
Plaintiffs Summons and Complaint and that he
DISCUSSION promptly entered his appearance and tiled a Motion
Plaintiff contends that the Court should enter tieranh te Disnriss, euirently pending. shertly thereafter- The
because the Defendant has not filed an answer to her Defendant dees net cXP1aln» n9WcVcY» why inc
coinpraint. rn response, Defendant contends that the atterney whe hrst appeared in this aetien an his
conn shonrti deny Plaintiffs Motion because this hehalf was unahle te respend te the Cenjiplarnt-i..1FN2
case is at an early stage of litigation and Plaintiff has Nevertheless. even When taking lntc acccunl
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Case 1 :04-cv-01469-SLR Document 12-3 Filed 06/16/2005 Page 2 of 2
Not Reported in F.Supp.2d Page 2
2004 WL 609320 (D.Del.)
(Cite as: 2004 WL 609320 (D.Del.))
Defendant's failure to act despite having at least one
attorney available to respond to Plaintiffs Complaint,
on the record before it the Court is without evidence
sufficient to find " 'an inference of willfulness or bad
faith [.]" ' Zawrzrdski, 822 F .2d at 420 (quoting
Gross, 700 F.2d at 124). At most, the Court finds a
"breakdown in communication" between counsel and
the Defendant, which under controlling precedent
does not qualify as culpable conduct. Id.
FN2. Two attorneys have made appearances
in this case on behalf of Defendant. The
first, Edward McNally, Esquire, noticed his
appearance on June 26, 2003. The second,
Bruce Herron, Esquire, noticed his
appearance. on August 28, 2003. Mr.
McNally withdrew as counsel on September
5, 2003. (D.I.l6.)
*2 In sum, the Court concludes that it must deny
Plaintiffs Motion. Plaintiff has not established
prejudice, the Defendant has a meritorious defense,
and there is no evidence supporting a finding that
Defendant's or his attorney's actions were culpable.
An appropriate Order will be entered.
ORDER
At Wilmington, this 23rd day of March 2004, for the
reasons discussed in the Memorandum Opinion
issued this date;
NOW THEREFORE, IT IS HEREBY ORDERED
that Plaintiffs Motion for Entry of Default Judgment
and Supporting Affidavit (D.I.l0) is DENIED.
2004 WL 609320 (D.Del.)
Motions, Pleadings and Filings (Back to top)
• l :03CV005 80 (Docket)
(Jim. 24, 2003)
END OF DOCUMENT
© 2005 Thomson/W est. No Claim to Orig. U.S. Govt. Works.