Mackowiak v. Johnson

• Court: Superior Court of Maine
• Decided: October 21, 2008
• Docket: CUMcv-08-463
• Status: Unpublished

Opinion

STATE OF MAINE . SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION . , . ( . . Docket No. CV-08-463 / ' ~).

BRIAN MACKOWIAK, r,. ") I , '- u I Plaintiff,

v. ORDER

MARJORIE JOHNSON, et aI.,

Defendants.

Before the court is defendant Marjorie Johnson's motion to set aside a default

entered against her on September 12, 2008.

The file reflects that a summons was served on Johnson on August 5, 2008. She

did not file a timely answer. On September 8, 2008 - 14 days after Johnson should have

answered - plaintiff filed a request for entry of a default against Johnson. On September

12, 2008 the clerk entered Johnson's default. Six days later, on September 18, 2008,

Johnson filed a motion to set aside the entry of default.

Under M.R.Civ.P. 55(c) the court may set aside an entry of default "for good

cause shown." A party seeking to set aside a default must show both a good excuse for

untimeliness in pleading and the existence of a meritorious defense.

On the issue of a meritorious defense, the version of the facts offered by the party

seeking to set aside the default is deemed to be true. Hamby v. Thomas Realty Associates,

617 A.2d 562, 564 (Me. 1992). Moreover, a meritorious defense may be presented in a

proposed pleading accompanying the motion to set aside the default. Hart v. Terry 1.

Hopkins Inc., 588 A.2d 1187, 1190 (Me. 1998). In this case, the proposed answer filed by

Johnson with her motion to set aside the default is sufficient to establish a meritorious

defense for purposes of Rule 55(c). On the issue of whether Johnson has demonstrated good cause under Rule 55(c),

it bears emphasis that "good cause" is a less stringent standard than the "excusable

neglect" standard that would have to be met under Rule 60(b )(1) if a judgment had been

entered. Erskine v. Commissioner, 682 A.2d 681, 684 (Me. 1996). Under the circumstances

here, Johnson has demonstrated that her failure to answer resulted from a

misunderstanding as to whether her insurance carrier would provide a defense.

Although counsel representing Johnson in her personal capacity has acknowledged that

he briefly overlooked the deadline for filing an answer on her behalf when action by the

insurer was not forthcoming, there is no indication that Johnson herself was in any way

dilatory and her personal counsel's actions do not rise to the level of gross negligence.

Accordingly the court concludes that Johnson has shown good cause for the

default. This is particularly true because Johnson's motion to lift the default was made

only six days after the default was entered and less than a month after Johnson's answer

was originally due, and plaintiff has not demonstrated any prejudice whatsoever from

the brief delay.

Motions to set aside defaults have been granted where no "gross neglect" was

involved in the late filing, where the opposing party has not been substantially

prejudiced by the delay, and where a meritorious defense for purposes of Rule 55(c) has

been shown. Thomas v. Thompson, 653 A.2d 417, 420 (Me. 1995). No gross neglect has

been shown here. In addition, there is a strong preference for deciding cases on their

merits. Thomas v. Thompson, 653 A.2d at 420; Wescott v. Allstate Insurance Co., 397 A.2d

156, 163 (Me. 1979).

The entry shall be:

2 Defendant Marjorie Johnson's motion to set aside the September 12, 2008 entry of

default against her is granted. The clerk is directed to incorporate this order in the

docket by reference pursuant to Rule 79(a).

DATED: October :2-( , 2008

--~ Thomas D. Warren Justice, Superior Court

3 : COURTS nd County ox 287 1e 04112·0287

PETER CLIFFORD ESQ 56 PORTLAND ROAD KENNEBUNK ME 04043

)F COURTS land County Box 287 tine 04112-0287

WILLIAM KANY ESQ PO BOX 1179 SACO ME 04072 J ChnSD'-.­

COURTS Id County lX 287 e 04112-0287

ROBERT HATCH ESQ PO BOX 4630 PORTLAND ME 04112