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

Case 1:04-cv-01469-SLR Document 12 Filed 06/16/2005 Page 1 of 4
if IN THE UNITED STATES DISTRICT COURT
A FOR THE DISTRICT OF DELAWARE
Stanford L. Burris :
Plaintiff,
: Civ. No. 04-1469-SLR
v. :
p Richards Paving, Inc.
A Defendant
DEFENDANT RICHARDS PAVING, INC.’S APPLICATION FOR ORAL
ARGUMENT TO VACATE THE ENTRY OF DEFAULT PURSUANT TO
FEDERAL RULES OF CIVIL PROCEDURE 55 QC)
Defendant Richards Paving, Inc. (hereafter referred to as "Richards Paving")
hereby makes this application to this Court to enter an order vacating the entry of default
against Richards Paving. In support of its motion, the defendant states:
l. On or about November 24, 2005, plaintiff tiled his complaint in the U.S. District
Court for the District of Delaware. A copy of the complaint is attached as
p Exhibit A.
2. On or about December 13, 2004, this Court entered an Order granting plaintiffs
motion to proceed In Forma Pauperis. Per the Court’s Order, plaintiff was also to
complete and return an original U.S. Marshall-285 form.
3. Defendant contends that it received Plaintiffs Complaint, but did not realize that
it had anything to respond to.
4. Defendant further contends that he did not receive any instructions or questions
with which defendant thought he had to respond to.

Case 1:04-cv-01469-SLR Document 12 Filed 06/16/2005 Page 2 of 4
5. Defendant further contends that it did not know that a response was required. In
9 fact, it was not aware of how to respond or what questions to answer until it
e received the Notice of Entry of Default on June 9, 2005.
p 6. On or about June 9, 2005, the Clerk of the District Court filed an Entry of Default
pursuant to Federal Rules of Civil Procedure 55(a).
7. Defendant did not seek the advice of legal counsel rmtil June 13, 2005, after the
Entry of Default.
8. Pursuant to Federal Rules of Civil Procedure 55(c), "the court may set aside an
entry of default for good cause shown" and at the discretion of the district court.
9. Under United States v. $$55,518.05 in U.S. Currency, 728 F.2d 192 (3rd Cir.
1984), in making a decision to vacate the entry of default, the courts consider: 1)
whether the plaintiff will be prejudiced if the court sets aside the default; 2)
whether the defendant has a meritorious defense; and 3) whether the default was
t the result of the defendant’s culpable conduct.]
10. In the instant case, there is no indication that plaintiff will be prejudiced by setting
aside the default. In fact, the case is in its initial stages of litigation and plaintiff
has not been prejudiced by any delay.
11. Defendant Richards Paving has a meritorious defense which will be brought to
light if and when discovery begins in this matter.
12. Defendant Richards Paving did not act willfully or in bad faith in failing to
respond to Plaintiffs complaint. At most, defendant’s ignorance of the law and
the Federal Rules of Civil Procedure, was the reason for its failure to answer
plaintiff’s complaint.

Case 1:04-cv-01469-SLR Document 12 Filed 06/16/2005 Page 3 of 4
1 . 13. The district court in Shearin denied plaintiffs Motion for Entry of Default
Judgment finding that there was a "breakdown in communication" between
counsel and Defendant, which did not rise to the level of culpable conduct. 2004
WL 609320, *1, (D.Del. 2004). In Shearin, the defendant’s counsel was on
vacation and failed to respond to plaintiffs complaint, eventhough the defendant
had at least one attorney available to respond. Rl, (Exhibit B).
14. Likewise, in Cowan v. Tricolor Inc., this court vacated the entry of default and
default judgment against a corporation that had failed to answer plaintiffs
complaint eventhough the President of the corporation had filed a motion to
represent the company. 869 F. Supp. 262 (D.Del. 1994).
WHEREFORE, for the reasons stated above, Richards Paving, Inc., respectfully
requests that this Court grant oral argument to vacate the Entry of Default.
ELZUFON AUSTIN REARDON
_ TARLOV & MONDELL, P.A.
/s/ Matthew P. Donelson
Matthew P. Donelson, ID #4243
300 Delaware Avenue, Suite 1700
P.O. Box 1630
Wilmington, DE 19899-1630
(302) 428-3181
Attorney for Defendant
Dated: June 16, 2005 Richards Paving, Inc.
1 See also Shearin v. Poole, 2004 WL 609320, *1 (D.Del. 2004).

Case 1:04-cv-01469-SLR Document 12 Filed 06/16/2005 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Stanford L. Burris :
Piaimlrr, Z
2 Civ. No. 04-1469-SLR
v. :
Richards Paving, Inc.
Defendant
· CERTIFICATE OF ELECTRONIC SERVICE
1, Matthew P. Donelson, do hereby certify that on this 16th day of June, 2005, I
have caused the following documents to be served electronically on the parties listed
below:
1. Application to Vacate the Entry of Default;
2. Exhibit A — Plaintiff s Complaint
3. Exhibit B — Unreported case law
4. This Certificate of Electronic Service.
Gary Aber, Esq. Stanford L. Burris
Aber, Goldlust, Baker & Over 88 Karlyn Drive
702 King Street, Suite 600 New Castle, DE 19720
P.O. Box 1675
Wilmington, DE 19890
/s/MATTHEW P. DONELSON
DATE: June 16, 2005 MATTHEW P. DONELSON #4243
G:\D0cs\CLIENT\130708\l5698\pleading\00287993.DOC