Hornstein v. Arris, Jr.

• Court: Superior Court of Maine
• Decided: June 15, 2021
• Docket: OXFcv-20-13
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT OXFORD, ss. CIVIL ACTION DOCKET NO. CV-.20 - l 3

TRAVIS HORNSTEIN.

V. ORDER

ROBERT E. ARRIS, JR.

et. al. Before the court is a request by Defendant Robert Arris("Arris") to lift the default

entered by the clerk against him on November 18, 2020. His handwritten filing does not

ask to lift the default Robert's Painting and Restoration, LLC ("Company").

In February, the Plaintiff filed a Complaint against both Arris and the Company.

On June 1.Z,__Arris, individually, signed a form CV-FM036, to accept service. CV FM 036

is the family law notice and acknowledgment of service. It is not the same form as the

one prepared for civil cases and is not clear with respect to the time to Answer. The court

assumes, however, that Arris received a Summons where it is clear an Answer must be

filed in 20 days. Arris wrote on the form that his lawyer would be in touch. The form

was filed on July 13 and the court issued a Scheduling Order on July 14, which was

presumably sent to Arris.

Plaintiff still had not served the Company. On October 20, 2020, the court entered

an order for alternative service on the Company stating that service would be complete

when the Complaint was mailed and when the sheriff delivered the Complaint at his

residence. The file reflects that the Complaint and Summons to the Company were

mailed to Arris as the principle of the corporation on October 15 and that the sheriff

served Arris in hand on October 15. No Answer was filed on behalf of either Arris or the

Company when Plaintiff sought an entry of default. Default was entered on against both

1 Defendants on November 18. The court has not yet entered a Default Judgment, which

would require a hearing on damages. It was not until December 31 that the Defendant

sent anything to the court, which was his request to lift the default.

"If the defendant has received actual notice by the method of service used, the

court should hesitate in finding the service insufficient for some technical

noncompliance with (the Rule)." Ireland v. Carpenter, 2005 ME 98,

that between the original receipt of the summons and complaint in June and receipt of

the summons and complaint served on the corporation in October, the Defendants had

actual notice. The court considers the family law summons to be a technical error and

that service was complete in June. Therefore, service was completed and the entry of

default was appropriate.

The next issue is whether to lift the default. "The proponent of a motion

pursuant to M.R. Civ. P. 55(c) must show both a good excuse for untimeliness in

pleading and also the existence of a meritorious defense. Thomas v. Thompson, 653 A.2d

417, 419-420 (Me. 1995). "There is a strong preference in our law for deciding cases on

the merits." Id. at 420. The court may also consider whether nondefaulting party is

substantially prejudic.ed by reopening the case. Id. When considering the Defendants'

conduct and the content of his motion, the court may not grant a prose Htigant

"preferential treatment or ... judicial accommodation greater than that afforded to

a litigant appearing by legal counsel." In re Children of Melissa F., 2018 ME 110,

The court deci<;les that good cause does not exist. Defendant had actual notice of

the Complaint back in June. The summons woul1 have given him notice of the 20 day

deadline to file an Answer. He made no effort to clarify what he should do. His

company was served in October and again he was on clear notice that the Complaint

required an Answer. _H e did nothing until he received a call on December 20.

2 With respect to a meritorious defense, the Defendant does not provide "enough

elaboration of facts to permit the court to determine whether (any) defense would

be meritorious." See, State v. Philogene, 2018 ME 126,

The court has not issued a default judgment. At this time, the court will schedule

a damages hearing when the court is again hearing civil bench trials. Defendant is

encouraged to ,provide this Order and the Complaint to his insurance carrier and

consult with an attorney.

The entry is:

Defendants' Motion to lift entry of default is DENIED. Court to schedule

damages hearing.

This Order is incorporated on the docket by reference pursuant to M.R.Civ.P.

79(a).

DATE: J~y1 1,S: ZtJI/ )

Thomas R. McKean Justice, Maine Superior Court