Colon v. Sineni

• Court: Superior Court of Maine
• Decided: June 10, 2013
• Docket: CUMcv-13-136
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-13-136 / ANDREA COLON,

Plaintiff

v. ORDER lf\!E "~~~Office ANTHONY SINENI III, ESQ., et al,

Defendant

Before the court is plaintiff's motion to strike the answer filed by defendants.

Defendants were served on March 11, 2013. At that time discussions were

ongoing with respect to settlement, and the complaint had not been filed. The record

before the court on the motion to strike indicates that plaintiff filed the complaint on

April 1, 2013 (the date the answer was due) and sent a motion dated April 12, 2013

seeking the entry of a default. That motion was received by the court on April 16, 2013,

the same day that an answer was filed on behalf of defendants.

Plaintiff has not disputed defendants' showing that before the complaint was

filed and after it had been served, the parties were exploring settlement, that on April 1,

2013 defendants' insurance adjuster had called plaintiffs' counsel and left a message

relating to a further offer, and that the adjuster did not hear back until plaintiffs'

counsel emailed on April 12 that he would be seeking a default. April 12 was the Friday

before the Patriots Day holiday, and defendants filed their answer on April 16, the next

business day.

On a motion pursuant to Rule 55(c) the moving party must show a good excuse

for the untimeliness in pleading and the existence of a meritorious defense. g., Thomas v. Thompson, 653 A.2d 417, 419-20 (Me. 1995). Courts have also looked to

whether the opposing party has been prejudiced by the delay. It bears emphasis that the

standard under Rule 55(c) is less stringent than the "excusable neglect" standard that

would have to be met to set aside a default judgment under Rule 60(b )(1). See 653 A.2d

at 420 n. 2.

In this case, if a default had been entered, defendants would be entitled on this

record to have the default set aside under Rule 55(c). They have demonstrated a good

excuse for their untimeliness in pleading and their answer, which contains various

affirmative defenses, is sufficient to demonstrate the existence of potentially meritorious

defenses for purposes of Rule 55(c). See Hamby v. Thomas Realty Associates, 617 A.2d

562, 564 (Me. 1992); Hart v. Terry L. Hopkins Inc., 588 A.2d 1187, 1190 (Me. 1991).

Moreover, plaintiff has not demonstrated any prejudice that resulted from the two week

delay in the filing of the answer.

Finally, where defendants have now answered and are fully ready to contest the

litigation, striking the answer and entering a default would also be inconsistent with the

strong preference in Maine law for deciding cases on their merits. Thomas v.

Thompson, 653 A.2d at 420.

The entry shall be:

Plaintiff's motion to strike is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: June~ 2013

Thomas D. Warren Justice, Superior Court

2 ANDREA COLON VS ANTHONY SINENI III ESQ ET AL UTN:AOCSsr -2013-0028896 CASE #:PORSC-CV-2013-00136

01 0000000185 BOWIE JAMES M THREE CANAL PLAZA PO BOX 4630 PORTLAND ME 04112-4630 F ANTHONY SINENI III ESQ DEF RTND 04/16/2013 F LAW OFFICES OF ANTHONY J SINENI III ESQ DEF RTND 04/16/2013

02 0000007472 GOODMAN JOSEPH L 537 CONGRESS STREET PO BOX 7523 PORTLAND ME 04112 F ANDREA COLON PL RTND 04/01/2013