First Protective Insurance Company v. Rike

E.D. North Carolina

First Protective Insurance Company v. Rike

District Court, E.D. North Carolina·Decided November 16, 2022·No. 4:22-cv-00042·Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION

NO. 4:22-CV-42-FL

FIRST PROTECTIVE INSURANCE ) COMPANY, ) ) Plaintiff, ) ) v. ) ) LINDA STOKES RIKE; LEWIS ) ORDER EDWARD O’LEARY; PROBUILDERS ) OF THE CAROLINAS, INC.; WILLIAM ) SCOTTE HEIDELBERG; HEIDELBERG ) AND MULLENS, INC.; RONALD PAUL ) HICKS; STORMPRO PUBLIC ) ADJUSTERS, LLC, ) ) Defendants. )

This matter is before the court on defendant Linda Stokes Rike’s motion for entry of default (DE 38) and motion to strike answer to counterclaim (DE 45). Upon consideration of the motions and the record in this case, under the applicable standard, plaintiff has demonstrated “good cause” for its failure to file timely an answer to the counterclaim filed by defendant Linda Stokes Rike. Fed. R. Civ. P. 55(c). In making this determination, the court finds plaintiff has alleged a meritorious defense, has acted with reasonable promptness, does not have personal responsibility for default, and does not have history of dilatory action. In addition, sanctions less drastic than default are available. These factors outweigh the prejudice in delay asserted by plaintiff. See Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 421 (4th Cir. 2010); Payne ex rel. Est. of Calzada v. Brake, 439 F.3d 198, 204–05 (4th Cir. 2006). Therefore, the motions are DENIED, and the clerk is DIRECTED to enter an initial order upon the pleadings now framed. SO ORDERED, this the 16th day of November, 2022.

CPR W. FLANASAN United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION

NO. 4:22-CV-42-FL

FIRST PROTECTIVE INSURANCE ) COMPANY, ) ) Plaintiff, ) ) v. ) ) LINDA STOKES RIKE; LEWIS ) ORDER EDWARD O’LEARY; PROBUILDERS ) OF THE CAROLINAS, INC.; WILLIAM ) SCOTTE HEIDELBERG; HEIDELBERG ) AND MULLENS, INC.; RONALD PAUL ) HICKS; STORMPRO PUBLIC ) ADJUSTERS, LLC, ) ) Defendants. )

This matter is before the court on defendant Linda Stokes Rike’s motion for entry of default (DE 38) and motion to strike answer to counterclaim (DE 45). Upon consideration of the motions and the record in this case, under the applicable standard, plaintiff has demonstrated “good cause” for its failure to file timely an answer to the counterclaim filed by defendant Linda Stokes Rike. Fed. R. Civ. P. 55(c). In making this determination, the court finds plaintiff has alleged a meritorious defense, has acted with reasonable promptness, does not have personal responsibility for default, and does not have history of dilatory action. In addition, sanctions less drastic than default are available. These factors outweigh the prejudice in delay asserted by plaintiff. See Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 421 (4th Cir. 2010); Payne ex rel. Est. of Calzada v. Brake, 439 F.3d 198, 204–05 (4th Cir. 2006). Therefore, the motions are DENIED, and the clerk is DIRECTED to enter an initial order upon the pleadings now framed. SO ORDERED, this the 16th day of November, 2022.

CPR W. FLANASAN United States District Judge

First Protective Insurance Company v. Rike, (E.D.N.C. 2022).

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