Lath v. Manchester Police Dept., et al.

2017 DNH 155

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sanjeev Lath

v. Civil No. 16-cv-534-LM Opinion No. 2017 DNH 155 Manchester Police Department, Gerard Dufresne, Dorothy Vachon BMS CAT, and Amica Mutual Insurance Company

O R D E R

This case now consists of one federal claim against the

Manchester Police Department, brought through the vehicle of 42

U.S.C. § 1983, and state law claims against all five defendants.

On February 22, 2017, Sanjeev Lath moved for default judgment

against Gerard Dufresne. See doc. no. 50. On March 21, 2017,

default was entered against Dufresne, in accordance with Rule

55(a) of the Federal Rules of Civil Procedure (“Federal Rules”)

and Local Rule 55.1. See doc. no. 73. On July 25, 2017,

Dufresne filed a pleading captioned “Motion to Dismiss Defendant

Gerard Dufresne of Default,” document no. 116. Lath objects.

For the reasons that follow, Dufresne’s default is set aside,

and Lath’s motion for default judgment is denied.

As noted, the default against Dufresne was entered pursuant

to Rule 55(a). The Federal Rules also provide that “[t]he court

may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). Rule 55(c), in turn, “as an ‘express[ion of] the

traditional inherent equity power of the federal courts,’

permits the consideration of a panoply of ‘relevant equitable

factors.’” KPS & Assocs., Inc. v. Designs by FMC, Inc., 318

F.3d 1, 12 (1st Cir. 2003) (quoting 10A Wright, Miller & Kane,

Federal Practice and Procedure: Civil 3d § 2692 (1998); Enron

Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)). The KPS

court went on to describe the competing values and policies that

are served by the procedural mechanism of default:

On the one hand, it “provide[s] a useful remedy when a litigant is confronted by an obstructionist adversary,” and “play[s] a constructive role in maintaining the orderly and efficient administration of justice.” Enron, 10 F.3d at 96. It furnishes an invaluable incentive for parties to comply with court orders and rules of procedure. See Fed. R. Civ. P. 37(b)(2)(C). It encourages the expeditious resolution of litigation and promotes finality. See Wright, Miller & Kane, supra, § 2693. On the other hand, countervailing considerations include the goals of “resol[ving] cases on the merits,” Key Bank of Me. v. Tablecloth Textile Co., 74 F.3d 349, 356 (1st Cir. 1996), and avoiding “harsh or unfair result[s].” Enron, 10 F.3d at 96.

318 F.3d at 12–13. The KPS court also identified the following

factors that a court may consider when determining whether to

set aside a default:

(1) whether the default was willful; (2) whether setting it aside would prejudice the adversary; (3) whether a meritorious defense is presented; (4) the nature of the defendant’s explanation for the default; (5) the good faith of the parties; (6) the amount of

2 money involved; (7) the timing of the motion [to set aside entry of default].

Id. at 12 (quoting McKinnon v. Kwong Wah Rest., 83 F.3d 498, 503

(1st Cir. 1996)).

Under the circumstances of this case, Dufresne’s default

should be set aside. Dufresne is appearing pro se. He is a

defendant in this case and in 16-cv-463-LM, both of which were

filed by Lath, and Dufresne has actively participated in the

litigation of 16-cv-463-LM. Lath himself has on multiple

occasions conflated this case with 16-cv-463-LM by filing

documents in one case that actually pertain to the other one.

Thus, Dufresne’s failure to answer Lath’s complaint in this case

is less likely due to willful conduct and more likely the result

of a litigation landscape that has been complicated by Lath’s

carelessness.

This case is still in the early stages of litigation, and

the only “prejudice” to Lath that will result from setting aside

Dufresne’s default will be the loss of what amounts to a

windfall resulting from a pro se defendant’s apparent confusion

in the face of a case that is being prosecuted in a way that

appears to foster confusion. Moreover, while default was

entered against Dufresne for failing to abide by the Federal

Rules, he has not violated any court order, and there is nothing

in the record that suggests that he is acting as an

3 “obstructionist adversary,” KPS, 318 F.3d at 13. Similarly, the

court can discern no basis for concluding that Dufresne has been

operating in bad faith. In short, the equities of this case and

the court’s general preference for resolving cases on their

merits both counsel in favor of setting aside Dufresne’s

default.

Accordingly, Dufresne’s default is set aside, and document

no. 116 is construed as an answer to Lath’s First Amended

Complaint, document no. 24, which is the operative complaint in

this case. That said, the court cautions Dufresne that as this

case moves forward, he should take care to abide by the

applicable rules of procedure, and should not count on the

court’s willingness to overlook future procedural miscues.

Finally, in the interest of clarity, the court notes that

Lath has asserted only two claims in this case against Dufresne:

(1) a claim for unlawful wiretapping, in violation of New

Hampshire Revised Statutes Annotated (“RSA”) 570-A, asserted in

Cause 17; and (2) a claim for civil conspiracy, asserted in

Cause 19. Those are the only claims against which Dufresne must

defend himself. That said, the court observes that at several

points in document no. 116, Dufresne appears to argue that

Lath’s claims against him should be dismissed. He does not,

however, make any arguments that are cognizable under Rule

4 12(b)(6) of the Federal Rules. Thus, dismissal of Lath’s claims

against Dufresne is not appropriate at this point.

In sum, Lath’s motion for default judgment, document no.

50, is denied, and Dufresne’s motion to set aside his default,

document no. 116, is granted to the extent that his default is

set aside, but is denied to the extent that he seeks dismissal

of the claims against him. That denial is without prejudice to

Dufresne’s filing a proper motion to dismiss Causes 17 and 19,

pursuant to Rule 12(b)(6) and the case law that interprets that

rule.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 16, 2017

cc: Kevin E. Buchholz, Esq. Gary M. Burt, Esq. Gerard Dufresne, pro se Sanjeev Lath, pro se Bruce Joseph Marshall, Esq. Sabin R. Maxwell, Esq. Richard C. Nelson, Esq. Brendan D. O’Brien, Esq. James G. Walker, Esq.