Maine National Bank v. F/V Cecily B (O.N. 677261)

116 F.R.D. 66, 1987 U.S. Dist. LEXIS 9657
CourtDistrict Court, D. Maine
DecidedMay 13, 1987
DocketCiv. No. 86-0359-P
StatusPublished
Cited by5 cases

This text of 116 F.R.D. 66 (Maine National Bank v. F/V Cecily B (O.N. 677261)) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maine National Bank v. F/V Cecily B (O.N. 677261), 116 F.R.D. 66, 1987 U.S. Dist. LEXIS 9657 (D. Me. 1987).

Opinion

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO SET ASIDE DEFAULT AND FOR LEAVE TO FILE A LATE ANSWER

GENE CARTER, District Judge.

This case is before the Court on a motion to set aside default and for leave to file a late answer, filed on March 11, 1987 by Defendants Snelling R. Brainard, Caroline P. Brainard, Seabank Industries, Ltd., and Brainard Conservation Trust (“the Guarantor Defendants”). For the reasons stated herein, the motion is denied.

I. Background

The action arises out of a promissory note and mortgage executed by Defendant Rockland Fleet Corporation (“RFC”) and now held by Plaintiff Maine National Bank. The Guarantor Defendants executed an unconditional guaranty to Plaintiff as security for the note. Defaults on various conditions of the note having occurred, Plaintiff commenced this action in order, inter alia, to enforce the guaranty.

The Guarantor Defendants each received a summons and complaint by certified mail on December 16, 1986. They also each received two copies of a notice and acknowledgment-of-receipt form and a stamped, self-addressed envelope as required by Fed.R.Civ.P. 4(c)(2)(C)(ii). Because the Guarantor Defendants did not return these forms within the twenty-day period prescribed by the rule, Plaintiff caused the Guarantor Defendants to be served in hand on January 28, 1987. The Guarantor Defendants’ counsel received these documents on February 5, 1987, but failed to file any answer or motion on or before February 17, the last day of the twenty-day period prescribed by Rule 12(a). Therefore, on Plaintiff’s request and pursu[68]*68ant to Rule 55(a), the Clerk of this Court entered a default on February 26, 1987. Plaintiff has requested the entry of default judgment but the Court has not yet acted upon this request.

On February 27, the Guarantor Defendants filed their answer; on March 11, they filed a motion to set aside default and for leave to file a late answer. On April 7 the Coqrt dismissed this motion for failure to comply with Local Rules 3(d)(1) (requiring attorneys not members of the bar of the court to become associated with local counsel) and 19(a) (requiring motions to be supported by memoranda of law). On April 9, the Guarantor Defendants filed a renewed motion to set aside default and for leave to file late answer; this motion, which complies with the Local Rules, is now before the Court.

II. Discussion

Fed.R.Civ.P. 55(c) declares that “[f]or good cause shown the court may set aside an entry of default____” In determining what constitutes “good cause,” this Court examines (1) the excuse or explanation for the default; (2) the existence of a meritorious defense to the action; and (3) the existence of any substantial prejudice to the party not in default. Phillips v. Weiner, 103 F.R.D. 177, 179 (D.Me.1984). Other factors that may be considered are (4) the amount of money involved; (5) the good faith of the parties; and (6) the timing of the motion to set aside the default. Id.

A. Excuse or Explanation

There is no adequate excuse or explanation for the conduct amounting to default. The Guarantor Defendants do not dispute that they originally received the summons and complaint on December 16, 1986. Because they failed to return the notice and acknowledgment-of-receipt forms, that date cannot be considered the date of service, but it is certainly relevant in evaluating the Guarantor Defendants’ excuse for failure to file a timely answer after service was effectuated on January 28, 1987. In short, the Guarantor Defendants did not respond to the summons and complaint for over two months.

The Guarantor Defendants argue that the complaints were voluminous and took time to evaluate. But the complaints were only thirteen pages long and were facially identical; the exhibits to the complaints, although lengthy, were apparently familiar to the Guarantor Defendants’ counsel because he participated in drafting them. If counsel had required more time to respond, he easily could have requested an extension of time from the Court or opposing counsel.

The same applies to counsel’s argument that he discovered only at the last minute that local counsel was required and that at that point had difficulty securing local counsel. The local counsel requirement should have been clear to him from the beginning, and had he needed more time, he could easily have requested it. Likewise, counsel’s argument that there were no funds available to obtain local counsel is weak; not only is it factually unsupported, but the obvious prudent course in such a situation would have been to file an answer with a request for an extension of time in which to obtain local counsel.

B. Meritorious Defense

The purpose of inquiring into the existence of a meritorious defense is to determine whether there is some possibility that the suit will have an outcome different from the result achieved by default. Phillips, 103 F.R.D. at 181. In the instant case, the Guarantor Defendants’ answer and the memorandum of law supporting the pending motion fail to establish the existence of any meritorious defense. Their answer merely denies that either they or the notemakers are in default or that any payments are due on the note and the associated mortgage. Their memorandum does not explain or expand upon this denial; the memorandum alludes to the [69]*69existence of other defenses but fails to specify what they might be. Such general denials or conclusory statements that a defense exists are insufficient. 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2697 at 529 (2d ed. 1983).

The memorandum also appears to contend that Plaintiff’s choice to proceed first against the collateral requires Plaintiff to await the outcome of those proceedings before proceeding against the Guarantor Defendants. This argument was not raised in the answer and appears completely without merit; section 2.3(B) of the guaranty gives Plaintiff complete discretion to proceed directly against the Guarantors without proceeding against or exhausting its other remedies. Moreover, proceedings against the collateral have been automatically stayed due to Defendant RFC’s having filed for chapter 11 reorganization.

C. Substantial Prejudice

Plaintiff argues that it would be prejudiced by a setting aside of the default because of the time and funds expended in obtaining entry of the default and responding to the Guarantor Defendants’ motions to remove the default. Plaintiff further argues that it would be prejudiced because the delay resulting from the Guarantor Defendants’ disregard of the Federal and Local Rules of Procedure. The Guarantor Defendants’ only response is to assert—erroneously—it appears, that the action against them is subject to the automatic stay triggered by RFC’s chapter 11 filing and thus that the delay has not prejudiced Plaintiff.

“[E]ven though courts frequently express a concern for the party not in default, they generally conclude that no substantial prejudice will be caused by granting relief in the case before them.” 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure

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Cite This Page — Counsel Stack

Bluebook (online)
116 F.R.D. 66, 1987 U.S. Dist. LEXIS 9657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maine-national-bank-v-fv-cecily-b-on-677261-med-1987.