DECISION AND ORDER ON GOVERNMENT’S MOTION FOR ENTRY OF JUDGMENT BY DEFAULT AND DEFENDANT STONE’S MOTION TO SET ASIDE DEFAULT
HORNBY, District Judge.
These motions for default judgment and to set aside default involve enforcement of a government-held conservation easement on Black Island. Black Island lies in the vicinity of Acadia National Park. The contested easement language provides:
No new structures, except those for which immediate proximity to the water is essential, shall be located within the area between low and high water marks of the Property or between mean high water mark and a line parallel to, and set back 100 feet from, said high water mark.
Conservation Easement, Book 1205, Page 500, at 505 (Hancock County Registry Deeds, Aug. 28, 1974) (Docket No. 81). The government seeks to enforce its conservation easement over the property. Fee ownership of the property has belonged successively to two trusts during the course of this lawsuit. At this point, the government seeks injunctive relief against the trusts and the trustees to compel them to remove a 20 by 24 foot platform or floor frame from the property.
The case has become a procedural morass. It has been pending since 1999 and has had three district judges and two magistrate judges. The defendants have had two lawyers,
and currently have none. Settlements have come and gone. Default judgments have been entered and removed. During the pendency of the lawsuit, the initial defendants conveyed the property and new defendants were added. Entry of default remains in place against all defendants. Individuals, the named trustees, have appeared and filed papers. They have been warned time and again that they cannot represent the trusts in federal court because only lawyers can represent entities,
see, e.g., Knoefler v. United Bank of Bismarck,
20 F.3d 347,
348 (8th Cir.1994);
C.E. Pope Equity Trust v. United States,
818 F.2d 696, 697-98 (9th Cir.1987), but to no avail. Most recently I held a hearing on the government’s request for default judgment. No lawyer for the defendants appeared. Dr. Paula Stone appeared, purporting to represent herself as a trustee; there was not even a purported appearance for her mother as a trustee of a different trust, or for the two trusts.
At the default judgment hearing the government stated on the record that it no longer seeks enforcement of a previous settlement agreement and no longer seeks removal of a certain pier and two floats. The government does continue to seek removal of the platform.
I.Default Judgment
Two critical issues must be resolved before any default judgment can be entered:
1. Is the easement’s 100-foot setback (the area “between mean high water mark and a line parallel to, and set back 100 feet from, said high water mark”) to be measured horizontally,
or over the face of the earth
on this sloping property? The answer determines whether the platform offends the easement.
2. Is the offending structure one “for which immediate proximity to the water is essential”?
The legal effect of entry of default is clear; entry of default does not automatically entitle the plaintiff to the relief it seeks, but it does amount to an admission by the defendants of the material allegations of the complaint.
Ortiz-Gonzalez v. Fonovisa,
277 F.3d 59, 62-63 (1st Cir.2002). A plaintiff must nevertheless establish that on the law it is entitled to the relief it seeks, given the facts as established by the default.
Bonilla v. Trebol Motors Corp.,
150 F.3d 77, 80 (1st Cir.1998). Here, the default results in an admission that the conservation easement applies to the property,
and that a structure exists where it should not be, at least if the government’s measurement method is accepted.
It does not amount to an admission in the government’s favor of the
two issues I have outlined. The government still must satisfy me that I should order the structure removed as a result of interpreting the easement, and the trustees can still attempt to persuade me that their structure fits within the easement’s “essential” exception.
I turn, therefore, to where the law and the record stand on the two issues.
As for the method of measurement, the default establishes that the platform in question is within the prohibited distance from mean high water mark,
measured
horizontally, but not if measured over-the-ground. Defs.’ Position Br. at 5, 14 (Docket No. 83); Defs.’ Response Mot. Default Ex. A at 1 (Docket No. 47); Answer at 2 (Docket No. 9) (answer for Iolanda Ponte only). The government asks me to declare that horizontal measurement is the only way to. measure easement descriptions in the State of Maine, and therefore that the structure must be removed.
Maine’s Law Court has said that the horizontal method is the “common” method of measuring distances,
Town of Union v. Strong,
681 A.2d 14, 18 (Me.1996),
using
as authority a 1962 text, Curtis M. Brown & Winfield H. Eldridge, Evidence and Procedures for Boundary Location (1962), a text that was extant at the time this easement was drafted. Another text the Law Court cites states the principle that a surveyor must consider usage at the time a particular deed description was drafted. Walter G. Robillard et al., Brown’s Boundary Control and Legal Principles 42 (4th ed. 1995) (“The unit of measurement indicated in the description is that unit of measurement used at the time of the survey or when the description was written.”). Horizontal measurement, therefore, is appropriate for this 1974 easement. There is nothing to suggest that the parties to this conservation easement had anything different in mind.
On the second issue, there is no showing or even suggestion why immediate proximity to the water is “essential” for the platform structure. This is an issue where the trustees have the burden, since it is an exception to the easement’s restrictions.
What Dr. Stone says is:
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DECISION AND ORDER ON GOVERNMENT’S MOTION FOR ENTRY OF JUDGMENT BY DEFAULT AND DEFENDANT STONE’S MOTION TO SET ASIDE DEFAULT
HORNBY, District Judge.
These motions for default judgment and to set aside default involve enforcement of a government-held conservation easement on Black Island. Black Island lies in the vicinity of Acadia National Park. The contested easement language provides:
No new structures, except those for which immediate proximity to the water is essential, shall be located within the area between low and high water marks of the Property or between mean high water mark and a line parallel to, and set back 100 feet from, said high water mark.
Conservation Easement, Book 1205, Page 500, at 505 (Hancock County Registry Deeds, Aug. 28, 1974) (Docket No. 81). The government seeks to enforce its conservation easement over the property. Fee ownership of the property has belonged successively to two trusts during the course of this lawsuit. At this point, the government seeks injunctive relief against the trusts and the trustees to compel them to remove a 20 by 24 foot platform or floor frame from the property.
The case has become a procedural morass. It has been pending since 1999 and has had three district judges and two magistrate judges. The defendants have had two lawyers,
and currently have none. Settlements have come and gone. Default judgments have been entered and removed. During the pendency of the lawsuit, the initial defendants conveyed the property and new defendants were added. Entry of default remains in place against all defendants. Individuals, the named trustees, have appeared and filed papers. They have been warned time and again that they cannot represent the trusts in federal court because only lawyers can represent entities,
see, e.g., Knoefler v. United Bank of Bismarck,
20 F.3d 347,
348 (8th Cir.1994);
C.E. Pope Equity Trust v. United States,
818 F.2d 696, 697-98 (9th Cir.1987), but to no avail. Most recently I held a hearing on the government’s request for default judgment. No lawyer for the defendants appeared. Dr. Paula Stone appeared, purporting to represent herself as a trustee; there was not even a purported appearance for her mother as a trustee of a different trust, or for the two trusts.
At the default judgment hearing the government stated on the record that it no longer seeks enforcement of a previous settlement agreement and no longer seeks removal of a certain pier and two floats. The government does continue to seek removal of the platform.
I.Default Judgment
Two critical issues must be resolved before any default judgment can be entered:
1. Is the easement’s 100-foot setback (the area “between mean high water mark and a line parallel to, and set back 100 feet from, said high water mark”) to be measured horizontally,
or over the face of the earth
on this sloping property? The answer determines whether the platform offends the easement.
2. Is the offending structure one “for which immediate proximity to the water is essential”?
The legal effect of entry of default is clear; entry of default does not automatically entitle the plaintiff to the relief it seeks, but it does amount to an admission by the defendants of the material allegations of the complaint.
Ortiz-Gonzalez v. Fonovisa,
277 F.3d 59, 62-63 (1st Cir.2002). A plaintiff must nevertheless establish that on the law it is entitled to the relief it seeks, given the facts as established by the default.
Bonilla v. Trebol Motors Corp.,
150 F.3d 77, 80 (1st Cir.1998). Here, the default results in an admission that the conservation easement applies to the property,
and that a structure exists where it should not be, at least if the government’s measurement method is accepted.
It does not amount to an admission in the government’s favor of the
two issues I have outlined. The government still must satisfy me that I should order the structure removed as a result of interpreting the easement, and the trustees can still attempt to persuade me that their structure fits within the easement’s “essential” exception.
I turn, therefore, to where the law and the record stand on the two issues.
As for the method of measurement, the default establishes that the platform in question is within the prohibited distance from mean high water mark,
measured
horizontally, but not if measured over-the-ground. Defs.’ Position Br. at 5, 14 (Docket No. 83); Defs.’ Response Mot. Default Ex. A at 1 (Docket No. 47); Answer at 2 (Docket No. 9) (answer for Iolanda Ponte only). The government asks me to declare that horizontal measurement is the only way to. measure easement descriptions in the State of Maine, and therefore that the structure must be removed.
Maine’s Law Court has said that the horizontal method is the “common” method of measuring distances,
Town of Union v. Strong,
681 A.2d 14, 18 (Me.1996),
using
as authority a 1962 text, Curtis M. Brown & Winfield H. Eldridge, Evidence and Procedures for Boundary Location (1962), a text that was extant at the time this easement was drafted. Another text the Law Court cites states the principle that a surveyor must consider usage at the time a particular deed description was drafted. Walter G. Robillard et al., Brown’s Boundary Control and Legal Principles 42 (4th ed. 1995) (“The unit of measurement indicated in the description is that unit of measurement used at the time of the survey or when the description was written.”). Horizontal measurement, therefore, is appropriate for this 1974 easement. There is nothing to suggest that the parties to this conservation easement had anything different in mind.
On the second issue, there is no showing or even suggestion why immediate proximity to the water is “essential” for the platform structure. This is an issue where the trustees have the burden, since it is an exception to the easement’s restrictions.
What Dr. Stone says is:
The platform functions in several critical ways, as follows:
a. The ground under the platform is seasonally wet, and very uneven, with large boulders. Without the platform, there would be no surface upon which to store materials, work, walk, sit, or even rest.
b. Picture, if you will, the logistical problems connected with this site. A barge arrives at high tide, which is the only time when it is able to unload materials onto the dock, and unloads lumber, or supplies for the summer season, such as food, fuel, etc. These things must be carried by hand up to the house or to the building site. Part way up, there must be a place where these things can be set down, or temporarily stored. At a normal house, there
are driveways and garages for this purpose, but here there is only dense forest and rocky ground, and so there must be the functional equivalent of road access in order to serve the needs of safety and convenience; the various platforms, ramps, and stairs perform that function.
Defs.’ Position Br. at 13.
Much as this may describe why Dr. Stone would like to have the platform where it is, it does not in any way demonstrate that “immediate proximity to the water is essential” for the 20 x 24 foot platform.
Accordingly, I conclude that the government is entitled to default judgment unless the default should be set aside.
II.Entry Of Default
Dr. Stone has moved, on behalf of herself, as Trustee of the Samsara Memorial Trust, and her mother, Iolanda Ponte, as Trustee of the Edward and Iol-anda Ponte Memorial Trust, to set aside the entry of default. Defs.’ Mot. Set Aside Default (Docket No. 82). She made an oral request to the same effect at the hearing. I Deny the motion. First, as a nonlawyer she is unable to represent her mother in federal court. Thus, neither Iolanda Ponte, nor the two trusts, have effectively requested removal of the default.
Second, Rule 55(c) of the Federal Rules of Civil Procedure permits a court to set aside an entry of default only for good cause shown. Dr. Stone claims that the entry of default should be vacated because the default was not willful and the defendants have a meritorious defense, as partially presented at the hearing before this court on December 18, 2002. She contends that the default was a result of improper service of the Amended Complaint and the defendants’ unawareness that a motion to set aside the default should have been filed. The burden of demonstrating good cause lies with the party seeking to set aside the default.
KPS & Assocs., Inc. v. Designs by FMC, Inc.,
318 F.3d 1, 14 (1st Cir.2003). While any action upon such a motion is a matter of sound discretion, the First Circuit has set out factors to consider:
(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 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)).
Dr. Stone’s conduct certainly borders on willful (factor 1), given her machinations about where she will accept mail for service of process and her refusal to hire counsel despite this court’s repeated admonishments that a trust cannot be represented in federal court by laypeople. She was on notice that the defendants were in default by order of this court on November 4, 2002, but waited until December 18, 2002, and January 15, 2003 (factors 2 and 7), to make her first and second requests, respectively, to set aside the default. Dr. Stone has no decent explanation (factor 4) establishing good cause and I question her good faith on the issue (factor 5).
Up until now, she has effectively obstructed bringing the case to a conclusion, and thus there would be prejudice (factor 2) to the government by removing the default at this late date. As for the amount of money involved (factor 6), it is not determinable at this time, but I assume that the defendants’ use of the property is important. I have considered any meritorious defenses (factor 3) in dealing with the default judgment. Thus, the balance of factors is against removing the default.
Moreover, none of the listed factors is determinative. According to the First Circuit:
This flexibility is necessitated by the competing policies and values that underlie the concept 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.” It furnishes an invaluable incentive for parties to comply with court orders and rules of procedure. It encourages the expeditious resolution of litigation and promotes finality. On the other hand, countervailing considerations include the goals of “resolfving] cases on the merits,” and avoiding “harsh or unfair result[s].”
KPS,
318 F.3d at 12-13. Given these concerns, a review of the record in this case makes abundantly clear why default should not be removed.
The trustees have been obstructionist and have interfered with the orderly and efficient progress of the case, brazenly ignoring court orders and procedural rules and delaying finality. Moreover, their significant defenses have been considered in the context of the motion for default judgment. For these reasons, I conclude that good cause has not been shown to remove the default.
The motion to remove default is Denied. The motion for default judgment is Granted. It is hereby Ordered that:
1. By June 1, 2003, the defendants shall have the offending 20 by 24 foot platform and all its supports removed.
2. The United States is authorized thereafter tp remove the offending platform and its supports if the defendants have not removed it by June 1, 2003.
3. The defendants shall restore the area where the platform sits to its condition before construction.
4. The defendants are Permanently Enjoined and Restrained from trespassing
on the conservation easement of the United States.
So Ordered.
APPENDIX A
PROCEDURAL HISTORY
United States v. Iolanda Ponte, et al.
Civil No. 99-2810B-H
This is a chronological summary of a portion of the procedural history in this matter, highlighting requests for extensions of time, notices and entries of default, and address changes of the defendants._
12/08/99 Original Complaint filed against Iolanda Ponte (“Ponte”) and Edward and _Iolanda Ponte Memorial Trust (“Ponte Trust”)_
12/29/99 Ponte and Ponte Trust request 90-day extension (first extension) to answer, request temporary order restraining government from trespassing upon the property, and request that all future correspondence be sent to P.O. Box 112, _Seal Harbor, ME 0467S_
Order granting extension until 04/03/00 for answer, denying temporary restraining order, and reminding the defendants (first reminder) that a non-lawyer _cannot enter an appearance on behalf of an entity_
03/29/00 Order striking answer on behalf of Ponte Trust for failure to observe D. Me. R. 83.1(c) (trust cannot appear
pro
se) (second reminder) and warning the defendants that they are subject to default (first mention of default); deadline _for filing answer enlarged to 04/10/00 (second extension)_
04/10/00 Motion by Attorney Bates on behalf of Ponte Trust to extend time to answer until 05/01/00 (motion mentions Paula Stone is taking care of the matter on _behalf of her mother) (third extension) — GRANTED until 04/24/00_
04/17/00 Attorney Bates moves to withdraw and requests extension for filing answer _(fourth extension)_
04/18/00 Ponte files answer _
Response to Order striking answer on behalf of Ponte Trust, claiming the defendants did not understand trust could not be represented through trustee, did not understand there were two defendants, cannot afford attorneys, acknowledges cannot represent Ponte Trust, and requests dismissal of Ponte _Trust — STRICKEN 05/11/00_
04/25/00 Motion for Default filed (second mention of default)_
05/11/00 Order defaulting Ponte Trust (third mention of default) for failure to appear or _file an answer_
_fpretrial filings and settlement discussions!_
03/15/01 Letter from Magistrate Judge Kravchuk to Paula Stone (“Stone”) regarding settlement issues, including reminder that Ponte Trust is in default (fourth _mention of default)_
_[settlement discussionsl_
10/23/01 Motion to amend complaint to add Stone and Samsara Memorial Trust
(“Samsara Trust”) as property was transferred to Samsara Trust on or about August 1, 2001 but the plaintiff did not learn of the conveyance until _10/22/01 — GRANTED 11/02/01_
11/01/01 Defendants object to motions to enforce settlement agreement and to amend the complaint, indicating they have been away since September and have just received the recent filings and claiming the plaintiff intentionally waited until
then to file responses knowing that the defendants would be unavailable _(request additional time to seek legal counsel) (fifth extension)_
11/08/01 Amended Complaint filed; four summonses issued with Seal Harbor address
11/13/01 Motion by the defendants to dismiss on the basis that the plaintiff did not respond to the defendants’ proposed settlement easement of May 2001 until _September 2001 and response was unsatisfactory — DENIED 12/05/01_
11/21/01 Letter (from Seal Harbor address) from the defendants to Magistrate Judge Kravchuk proposing settlement agreement, which includes promise not to build any permanent residence on the platform, indicating that they do not agree that the horizontal method of measuring distances is required by the easement, and representing that Stone will call the court next week to see if there are any additional filings, is not planning to be in Maine for the next few months or to pick up her mail, and cannot revolve her life around the Park Service who did not get back to her during the summer when she was _available_
11/30/01 Letter from Magistrate Judge Kravchuk to Stone advising her of case status and _that scheduling is out of her control_
12/13/01 Four new summonses issued with Bar Harbor, ME 04609 address (no specific _street address on summonses)_
01/03/02 Court enters change of address for Ponte from Seal Harbor to 182 Otter Cliff _Road, Bar Harbor. ME_
01/25/02- Motion For Extension of Time for Service/Service by Publication: copies of Amended Complaint mailed to Seal Harbor address on 11/08/01 but returned as “unclaimed” during the final week of November; copies sent to Pownal, VT, an address used earlier by Ponte and the Ponte Trust, returned as “undeliverable”; the plaintiff placed telephone calls to Stone on 12/12/01 (phone number changed), contacted her advisor and professor at the University of Maine (they had same old phone number, same e-mail, and Seal Harbor address), attempted to send her e-mails, and made over twenty visits to her last known address in Maine on Otter Cliffs Road, Bar Harbor (12/14/01-12/16/01; 12/19-12/22; 12/26-12/30; and 1/2/02-1/13/02) — GRANTED 01/29/02 (at least fifth _mention of default)___
01/29/02 Order authorizing service by publication and by leaving copies at place of abode (Manski Declaration dated 03/13/02 indicates copies were left at Otter Cliffs _Road, Bar Harbor address)_
03/13/02 Motion for Default Judgment on basis of prejudice by over two-year delay and _failure to respond to Amended Complaint_
03/15/02 Motion for Default against Ponte, Stone, and Samsara Trust (Ponte Trust _defaulted 05/11/00) (sixth mention of default)__
04/05/02 Defendants’ Motion for Jury Trial and to Restrain Park Service from Trespassing; Response to Motion for Default (seventh mention of default), indicating the defendants were not in Maine since November 2001 and last pleading received was Order of 11/02/01 (granting leave to file amended complaint so the defendants were on notice that Amended Complaint would be forthcoming) and representing they will not be in Maine for another few weeks so cannot read the contents of the Amended Complaint, Order permitting service by publication, or Motion for Default (address is 182 Otter Cliff Road, Bar Harbor, the location visited a-dozen times for attempt to personally serve the _Amended Complaint)_
04/11/02 Order Defaulting Ponte, Stone and Samsara Trust on basis that service has been effected in accordance with the procedures of the court and the defendants have failed to plead or otherwise appear and have failed to proffer any excuse _for their neglect_
04/17/02 Court enters change of address for Stone from Seal Harbor to Otter Cliff Road, Bar Harbor
05/08/02 Motion by Attorney Cloutier on behalf of the defendants to set aside default judgment pursuant to Rule 55(e) and request for extension of time to respond _to Amended Complaint (at least sixth extension) — GRANTED 09/23/02_
06/11/02 Order Granting the defendants’ Motion for Stay pending outcome of Motion to _Set Aside Default _
09/23/02 Consent Judgment__
Endorsement entered granting the defendants’ Motion to Set Aside Default Judgment (and request for extension of time to respond to Amended _Complaint)_
10/02/02 Attorney Cloutier moves to withdraw — GRANTED 11/04/02_
11/01/02 Defendants’ Request for Extension of Time to File Reply — MOOT (seventh _extension) _
11/04/02 Order vacating Judge Singal’s orders, Consent Judgment and Default Judgment; denying the defendants’ motion to dismiss; reminding the defendants that trusts cannot appear
pro se
(at least third reminder); denying request for jury trial; and denying motion to enter the defendants’ proposed consent _judgment — all the defendants in default (eighth mention of default)_
12/03/02 Defendants’ Motion to Continue Hearing — DENIED (eighth extension)_
12/09/02 Defendants’ Motion for Reconsideration, citing Rules 55 and 60 — DENIED _(ninth extension)_
12/18/02 Hearing — oral motion for -default (ninth mention of default)- — DENIED on grounds that request was not timely and no adequate basis to excuse