French v. Stanley

• Court: Superior Court of Maine
• Decided: August 23, 2016
• Docket: PENre-16-26
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. Docket No.'tE .. 16-26

MALCOLM A. FRENCH, et. al., ) Plaintiffs, ) ) v. ) ORDE R RANTING Dl.WENOANTS' ) MOTION TO SET ~l{)E ) THEDE:FAULT AVON V. STANLEY, et. al., ) Defendants. ) ) ) ) WILLIAM FRANKS, ct. al. ) Parties in interest )

Now pending before the Court is Avon and Melanie Stanley's Motion to Set Aside

the Default against them. Hearing was held on August 23, 2016. Attorney Grant

appeared for the Stanleys and Attorney LaVe1·diere appeared for the Frenchs.

Procedural Hist01·y On March 23, 2016, Plaintiffs filed a Complaint with the Court. On April 1, 2016,

Plaintiffs filed an Amended Complaint "'rith the Comt. Returns of service wern filed

reciting that Melanie and Avon Stanley were served with the Amended Complaint and

Summons in hand on April 2, 2016. The Stanleys did not file an Answe1· within 20 days,

as required by M.R.Civ.P. 12(a).

On May 11, 2016, the Frenchs filed a Request for a Default and Default

Judgment. A default was entered against the Stanleys on May 20, 2016. On June 6,

2016, the Stanlcys filed a prose Motion to Set Aside the Default LJudgment]. On ,June

27, 2016, Plaintiffs filed an Opposition to Defendants' Motion to Set Aside the Default.

On July 18, 2016, Defendants, through their attorneys, filed a Motion to Supplement the Brief on the Motion to Set Aside the Default, and, over objection, the Court granted that

Motion. A Supplemental Brief was filed on August 11 1 2016 1 and a Reply Opposition was

filed on August 171 2016.

At the hearing on August 23, 2016, the Court hea1·d testimony from Melanie

Stanley, William Franks and Mike Smith. Ms. Stanley and Mr. Franks testified that they

were served with the Amended Complaint on April 2, 2016 and April 4, 2016,

respectively. They both testified that although they were served with the Amended

Complaint, they were not served ,vith a Summons. Mr. Smith testified that he served the

patties with both the Amended Complaint and Summons.

The Court finds that the parties were served with only the Amended Complaint,

and not the Summons in this case. It appeared to the Court that Ms. Stanley was very

diligent in attempting to address this lawsuit, and had she received the summons, she

would have filed an Answer. Mr. Smith made the mistake of indicating on the back of

the Return of Service that he served Mr. Franks "in hand", when both Mr. Smith and

Mr. Franks agree that Mr. Franks was not served "in hand". Mr. Smith has served

approximately 500 people since serving the papers in this case, and the Court is satisfied

that Mr. Smith has a regular and solid procedure that he follows when serving

paperwork and that he regulai·ly follows this procedure. However, in this case, the Court

is satisfied that the Summons were not served.

After receiving the Amended Complaint, Ms. Stanley rather immediately sent

Plaintiffs' counsel a letter, by certified mail, explaining her position on the issues.

Plaintiffs' counsel promptly responded. Upon receiving information from the parties-in­

interest that a default had been entered, Ms. Stanley promptly came to the Comthouse

and spoke with a clerk. The Comt is satisfied that the first time Ms. Stanley saw the

2 summons in this case is when the clerk showed it to her. The Comt is further satisfied

that Ms. Stanley came to the comthouse on or before June 1, 2016 as June 11 2016 is the

date Ms. Stanley filed a Notice of Change of Address with the Court. Thereafte1·, on June

6, 2016, the Stanleys promptly filed a Motion to Set Aside the Default [Judgment], and

thereafter the Stanleys' attorney supplemented the Motion to Set Aside the Default.

Analysis The posture of this case is that a default, but not a default judgment, has been

entered. Therefore, Rule 55(c) of the Maine Rules of Civil Procedure applies to the

Defendant's Motion to Set Aside the Default. M.R.Civ.P. 55(c) provides:

For good cause shmvn the court may set aside an entry of default. ..

The parties seeking to set aside the default have the burden to establish both

good excuse for their untimeliness in defending the action and the existence of a

meritorious defense. Levine v. KeyBank National Ass'n, 2004 ME 131.

Having found that the Stanleys were not served a Summons with the Amended

Complaint, the Court finds a good excuse for their untimeliness in defending the action.

The Court is further satisfied that the Stanlcys have a meritorious defense.

Conclusion The Stanley Defendants' Motion to Set Aside the Default is granted. The Stanleys

shall file their Answer no later than .Septembe1· _l3,.__2_QJQ.

The Clerk shall incorporate this Order upon the docket by reference.

Dated: August 23, 2016

Ann M. Murray, ,Justice Maine Superior Comt