3 IN THE SUPERIOR COURT OF GUAM 4 TEKER TORRES & TEKER, P .C., ) 5 CASE NO. CV2058-1 0 ) 6 Plaintiff, ) ) 7 DECISION AND ORDER v. ) ON MOTION TO VACATE DEFAULT 8 ) AND DEFAULT JUDGMENT CECIL WILLIAJ.VISON, :MARCUS ) 9 PORTER, and DONALD D. PORTER, ) ) 10 Defendants. ) 11
12 INTRODUCTION 13 This matter came before the Honorable Alberto C. Lamorena III on 14 November 5, 2012 on Defendants' Motion to Vacate Default and Default Judgment. 15 Attorney Joseph J. Iacopino represented Defendants Cecil Williamson, Marcus 16 Porter, and Donald Porter. Attorney Brooke E. \Vright represented Plaintiff Teker 17 Torres & Teker, P.C. Following the hearing the Court took the matter under 18 advisement. Having considered the parties' arguments and the applicable law, this 19 Court now issues its Decision and Order. 20 FACTUAL BACKGROUND 21 Plaintiff Teker Torres & Teker, P.C. (hereinafter "Teker"), filed this action on 22 December 28, 2010. In the Complaint, Teker alleges Defendants Cecil Williamson, 23 Marcus Porter, and Donald Porter is liable for damages resulting from a breach of
24 contract for legal services.
25 Defendants do not reside in Guam. There is some dispute as to whether
26 Plaintiffs effectively served Defendants with process. 1 It appears from the record
27 1 28 Cecil Williamson contends she was never served with the summons or complaint for this action, even though proof of service shows service was carried out at her home and made on her Decision and Order Case No. CV2058-l 0
that there was some effort to end the dispute through waivers of service of process, 2 though no waivers appear in the record. Additionally, there was some 3 communication between Teker and Defendants' counsel as to an extension of time 4 in which Defendants could file their Answer. 5 The Clerk of Court entered Defaults as to each Defendant. On April 7, 2011,
6 Default was entered against Donald Porter. Afterward, Teker and Defendants were
7 discussing the possibility of negating requests for Entry of Default as to each Defendant based on certain conditions. For reasons that remain unclear, no such 8 negation occurred and at Teker's request, Default was entered against Cecil 9 Williamson and Marcus Porter on April 26, 2011. 10 On May 5, 2011, Defendants sent their Answer to the Superior Court of II Guam. The Answer was received by the Court and filed on May 11, 2011. In their 12 answer, they dispute their liability under the contract as well as the amount owed if 13 found liable. Defendants allege that after their Answer was filed with this Court, 14 they entered into negotiations with Teker. 15 On September 21, 2011, this Court issued a Default Judgment at Plaintiffs 16 request. On April 13, 2012, Defendants filed their motion to vacate the Entry of 17 Default and Default Judgment. They argue that Entry of Default and Default 18 Judgment are improper under the circumstances and that they meet the tests for 19 which Guam sets each aside. 20 DISCUSSION 21 I. Motion to Vacate Default Judgment. 22 The rule regarding such a motion is governed by Rule 60 of the Guam Rules 23 of Civil Procedure. The Rule states: 24 On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or 25 proceeding for the following reasons: 26 (1) mistake, inadvertence, surprise, or excusable neglect;
27 husband. Donald Porter contends he was never served while Teker's proof of service shows 28 service was made upon John Collins, an associate of Porter's who is authorized to accept service on his behalf. The only Defendant to acknowledge personal service is Marcus Porter.
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(2) newly discovered evidence which by due diligence could not have 2 been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), 3 misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; 4 (5) the judgment has been satisfied, released, or discharged, or a 5 prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment 6 should have prospective application; or 7 (6) any other reason justifying relief from the operation of the judgment. 8 The motion shall be made within a reasonable time, and for reasons 9 (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. 10 Guam R. Civ. P. 60(b). For a default judgment to withstand a 60(b) motion, it must II be shown that A) the defendant's culpable conduct led to the default; B) the 12 defendant has no meritorious defense, or C) the plaintiff would be prejudiced if the 13 judgment is set aside. See Midsea Industrial, Inc. v. HK Engineering, Ltd., 1998 14 Guam 14, ,f 5 (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). "A finding 15 of but one of the three elements is sufficient to deny vacation of a default judgment." 16 Id. "[T]he rule is meant to be remedial in nature and should be applied liberally ... a 17 default judgment is considered to be a drastic measure, only appropriate in extreme 18 circumstances because, whenever possible, cases should be decided on their merits. 19 Id. at ,I 6. 20 A. Defendant's Culpable Conduct. 21 This factor is not in dispute. In Teker's Opposition to Defendants' motion, 22 there is no allegation that the Default is attributable to Defendants' conduct. 23 Defendants contend they are without fault in this matter. As such, there has been 24 no showing that Defendants' culpable conduct led to the default judgment and the
25 judgment will not be able to withstand the motion to vacate on this factor.
26 B. No Meritorious Defenses.
27 If it can be shown that Defendants lacked a meritorious defense, the 60(b) motion should be denied. Midsea, 1998 Guam 14 ,f 10. The Court must determine 28 whether there is some possibility that the outcome of the suit after a full trial will
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be contrary to the result achieved by the default. Id. (quoting Hawaii Carpenters' 2 Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). 3 Teker contends Defendants have not specifically alleged a meritorious 4 defense. Defendants argue they have raised meritorious defenses. Their Answer
5 denies all factual allegations of the Complaint and raises numerous affirmative
6 defenses. Defendants' declarations produce factual allegations that if found to be
7 true could absolve them ofliability to Teker. Marcus Porter's April 13, 2012 Declaration provides the following: 8 1) The purported contract for legal services doesn't indicate Teker was 9 to provide legal services to him. (See ~6). IO 2) Teker did not represent him, did not appear as counsel of record for him or provide legal services to him, and that services were II rendered by another law firm. (See ~ 7). I2 3) The bills are excessive and unreasonable. (See~ 9). 4) Teker's legal services were provided to someone else with interests 13 adverse to Porter. (See~ 11). I4 The Declarations of Cecil Williamson and Donald Porter make similar allegations. 15 It is the finding of this Court that Defendants do raise meritorious defenses and the I6 default judgment will not be able to stand based on this factor. I7 C. Prejudice to Plaintiff. 18 Teker argues that vacating the default judgment would lead to prejudice 19 because the attorney who rendered the services in question, Mr. Joseph Razzano, is 20 no longer employed by the firm.
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3 IN THE SUPERIOR COURT OF GUAM 4 TEKER TORRES & TEKER, P .C., ) 5 CASE NO. CV2058-1 0 ) 6 Plaintiff, ) ) 7 DECISION AND ORDER v. ) ON MOTION TO VACATE DEFAULT 8 ) AND DEFAULT JUDGMENT CECIL WILLIAJ.VISON, :MARCUS ) 9 PORTER, and DONALD D. PORTER, ) ) 10 Defendants. ) 11
12 INTRODUCTION 13 This matter came before the Honorable Alberto C. Lamorena III on 14 November 5, 2012 on Defendants' Motion to Vacate Default and Default Judgment. 15 Attorney Joseph J. Iacopino represented Defendants Cecil Williamson, Marcus 16 Porter, and Donald Porter. Attorney Brooke E. \Vright represented Plaintiff Teker 17 Torres & Teker, P.C. Following the hearing the Court took the matter under 18 advisement. Having considered the parties' arguments and the applicable law, this 19 Court now issues its Decision and Order. 20 FACTUAL BACKGROUND 21 Plaintiff Teker Torres & Teker, P.C. (hereinafter "Teker"), filed this action on 22 December 28, 2010. In the Complaint, Teker alleges Defendants Cecil Williamson, 23 Marcus Porter, and Donald Porter is liable for damages resulting from a breach of
24 contract for legal services.
25 Defendants do not reside in Guam. There is some dispute as to whether
26 Plaintiffs effectively served Defendants with process. 1 It appears from the record
27 1 28 Cecil Williamson contends she was never served with the summons or complaint for this action, even though proof of service shows service was carried out at her home and made on her Decision and Order Case No. CV2058-l 0
that there was some effort to end the dispute through waivers of service of process, 2 though no waivers appear in the record. Additionally, there was some 3 communication between Teker and Defendants' counsel as to an extension of time 4 in which Defendants could file their Answer. 5 The Clerk of Court entered Defaults as to each Defendant. On April 7, 2011,
6 Default was entered against Donald Porter. Afterward, Teker and Defendants were
7 discussing the possibility of negating requests for Entry of Default as to each Defendant based on certain conditions. For reasons that remain unclear, no such 8 negation occurred and at Teker's request, Default was entered against Cecil 9 Williamson and Marcus Porter on April 26, 2011. 10 On May 5, 2011, Defendants sent their Answer to the Superior Court of II Guam. The Answer was received by the Court and filed on May 11, 2011. In their 12 answer, they dispute their liability under the contract as well as the amount owed if 13 found liable. Defendants allege that after their Answer was filed with this Court, 14 they entered into negotiations with Teker. 15 On September 21, 2011, this Court issued a Default Judgment at Plaintiffs 16 request. On April 13, 2012, Defendants filed their motion to vacate the Entry of 17 Default and Default Judgment. They argue that Entry of Default and Default 18 Judgment are improper under the circumstances and that they meet the tests for 19 which Guam sets each aside. 20 DISCUSSION 21 I. Motion to Vacate Default Judgment. 22 The rule regarding such a motion is governed by Rule 60 of the Guam Rules 23 of Civil Procedure. The Rule states: 24 On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or 25 proceeding for the following reasons: 26 (1) mistake, inadvertence, surprise, or excusable neglect;
27 husband. Donald Porter contends he was never served while Teker's proof of service shows 28 service was made upon John Collins, an associate of Porter's who is authorized to accept service on his behalf. The only Defendant to acknowledge personal service is Marcus Porter.
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(2) newly discovered evidence which by due diligence could not have 2 been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), 3 misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; 4 (5) the judgment has been satisfied, released, or discharged, or a 5 prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment 6 should have prospective application; or 7 (6) any other reason justifying relief from the operation of the judgment. 8 The motion shall be made within a reasonable time, and for reasons 9 (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. 10 Guam R. Civ. P. 60(b). For a default judgment to withstand a 60(b) motion, it must II be shown that A) the defendant's culpable conduct led to the default; B) the 12 defendant has no meritorious defense, or C) the plaintiff would be prejudiced if the 13 judgment is set aside. See Midsea Industrial, Inc. v. HK Engineering, Ltd., 1998 14 Guam 14, ,f 5 (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). "A finding 15 of but one of the three elements is sufficient to deny vacation of a default judgment." 16 Id. "[T]he rule is meant to be remedial in nature and should be applied liberally ... a 17 default judgment is considered to be a drastic measure, only appropriate in extreme 18 circumstances because, whenever possible, cases should be decided on their merits. 19 Id. at ,I 6. 20 A. Defendant's Culpable Conduct. 21 This factor is not in dispute. In Teker's Opposition to Defendants' motion, 22 there is no allegation that the Default is attributable to Defendants' conduct. 23 Defendants contend they are without fault in this matter. As such, there has been 24 no showing that Defendants' culpable conduct led to the default judgment and the
25 judgment will not be able to withstand the motion to vacate on this factor.
26 B. No Meritorious Defenses.
27 If it can be shown that Defendants lacked a meritorious defense, the 60(b) motion should be denied. Midsea, 1998 Guam 14 ,f 10. The Court must determine 28 whether there is some possibility that the outcome of the suit after a full trial will
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be contrary to the result achieved by the default. Id. (quoting Hawaii Carpenters' 2 Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). 3 Teker contends Defendants have not specifically alleged a meritorious 4 defense. Defendants argue they have raised meritorious defenses. Their Answer
5 denies all factual allegations of the Complaint and raises numerous affirmative
6 defenses. Defendants' declarations produce factual allegations that if found to be
7 true could absolve them ofliability to Teker. Marcus Porter's April 13, 2012 Declaration provides the following: 8 1) The purported contract for legal services doesn't indicate Teker was 9 to provide legal services to him. (See ~6). IO 2) Teker did not represent him, did not appear as counsel of record for him or provide legal services to him, and that services were II rendered by another law firm. (See ~ 7). I2 3) The bills are excessive and unreasonable. (See~ 9). 4) Teker's legal services were provided to someone else with interests 13 adverse to Porter. (See~ 11). I4 The Declarations of Cecil Williamson and Donald Porter make similar allegations. 15 It is the finding of this Court that Defendants do raise meritorious defenses and the I6 default judgment will not be able to stand based on this factor. I7 C. Prejudice to Plaintiff. 18 Teker argues that vacating the default judgment would lead to prejudice 19 because the attorney who rendered the services in question, Mr. Joseph Razzano, is 20 no longer employed by the firm. (October 29, 2012 Opposition p.3). It is Teker's 2I argument that this fact means the firm's ability to pursue the case is hindered. 22 Defendants argue there is no prejudice because "there is no reason why the plaintiff
23 would not be able to [i]ntroduce its documentary evidence and call its witnesses,
24 including Mr. Razzano in support of its claim for fees." (November 5, 2012 Reply
25 p.3). This Court agrees. Nothing about this changed circumstance affects Teker's 26 ability to prosecute this matter. The fact that Mr. Razzano is no longer employed by 27 Teker does nothing to the firm's ability to depose him or call him as a witness at 28 trial. There is nothing in the record which would show he is not available for such
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purposes. This Court finds that the default judgment may not stand based on this 2 factor. 3 II. Motion to Vacate Entry of Default. 4 For good cause shown, the court may set aside an entry of default and, if a
5 judgment by default has been entered, may likewise set it aside in accordance with
6 Rule 60(b). Guam R. Civ. P. 55(c). The concepts of default and default judgment
7 are distinct and must be treated separately. Adams v. Duenas, 1998 Guam 15 ~ 5 (citing U.S. v. Topeka Livestock Auction, Inc., 392 F.Supp. 944 (N.D.Ind. 1975)). 8 "However, due to the parallels between entries of default and default 9 judgments, in reviewing entries of default courts will look to the same grounds that 10 are relevant in considering whether to set aside a default judgment." Adams, ~ 5. II "On the other hand, the standard is less rigorous when examining a motion to set 12 aside entry of default than for default judgments, so these grounds are more 13 liberally construed." Id. (citing Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 14 508, 513 (9th Cir. 1986). 15 Here, Entry of Default was made as to each Defendant. On April 7, 2011, 16 Default was entered against Donald Porter. Default was entered against Cecil 17 Williamson and lVIarcus Porter on April 26, 2011. As the controlling cases dictate, 18 the standard is less rigorous, thus grounds are more liberally construed. 19 This Court has already analyzed the Rule 60(b) factors and found that none 20 of the factors can be used for the Default Judgment to survive the motion. This 21 Court incorporates the same analysis to the Rule 55(c) motion. 22 CONCLUSION 23 The Court finds that none of the factors to be analyzed under a Rule 60(b) 24 Motion may be used to withstand Defendants' Motion to Vacate Default Judgment.
25 Defendants' 60(b) motion is hereby GRANTED. For the same reasons Defendants'
26 Motion to Vacate Entry of Default is hereby GRANTED. II
28 II
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It is SO ORDERED this 2nd day of April, 2013. 2
4 AlVIORENA, III 5 rt of Guam
II
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