Wayne Rosa Construction, Inc. v. Hugo Key & Son, Inc.

153 F.R.D. 481, 1994 U.S. Dist. LEXIS 3063, 1994 WL 85758
CourtDistrict Court, D. Maine
DecidedMarch 7, 1994
DocketCiv. No. 93-300-P-C
StatusPublished
Cited by2 cases

This text of 153 F.R.D. 481 (Wayne Rosa Construction, Inc. v. Hugo Key & Son, Inc.) 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
Wayne Rosa Construction, Inc. v. Hugo Key & Son, Inc., 153 F.R.D. 481, 1994 U.S. Dist. LEXIS 3063, 1994 WL 85758 (D. Me. 1994).

Opinion

MEMORANDUM OF DECISION AND ORDER DENYING CONNECTICUT INDEMNITY CO.’S MOTION TO VACATE DEFAULT JUDGMENT

GENE CARTER, Chief Judge.

This action was commenced by Plaintiff Wayne Rosa Construction, Inc. to recover $18,394 for materials, labor, and services provided to the United States Naval Shipyard at Portsmouth, New Hampshire, pursuant to a subcontract with Defendant Hugo Key & Son, Inc. (Hugo Key). Hugo Key, the contractor, had obtained a surety bond, as required by the Miller Act (40 U.S.C. §§ 270a-270d), from Defendant The Connecticut Indemnity Co. (Connecticut Indemnity) for the materials, labor, and services to be furnished [482]*482at the Portsmouth Naval Shipyard. The Complaint (Docket No. 1) was filed on October 22, 1993, and service was made on Connecticut Indemnity on November 3, 1993, by serving copies of the Summons and Complaint on the Superintendent of Insurance for the State of Maine. Defendants failed to answer the Complaint in a timely manner as required by Rule 12(a) of the Federal Rules of Civil Procedure, and a default was entered on December 23, 1993. Thereafter, on December 29, 1993, a default judgment in the amount of $18,394 plus interests and costs was entered in favor of Plaintiff pursuant to Rule 55(b).

On January 31,1994, Connecticut Indemnity filed a Motion for Relief from the Default Judgment (Docket No. 11) under Rule 60(b)(1). For the reasons that follow, the Court will deny this motion.

DISCUSSION

Under Rules 55(c) and 60(b), the determination of whether a party may be relieved of a final judgment rests within this Court’s sound discretion. American Metals Service Export Co. v. Ahrens Aircraft, Inc., 666 F.2d 718, 720 (1st Cir.1981). However, it is the moving party that bears the burden of showing both good reason for the default and the existence of a meritorious defense. Id., cited in Maine National Bank v. F/V Explorer, 833 F.2d 375, 378 (1st Cir.1987). When a party seeking relief from a default judgment has met the threshold burden of showing a good cause for a default, and the existence of a meritorious defense, the Court will consider other factors which militate for or against relief, such as: prejudice to the non-moving party, whether a substantial amount of money is involved, the good faith of the parties, and the timing of the motion to set aside the default. Phillips v. Weiner, 103 F.R.D. 177, 179 (D.Me.1984).

THE FAILURE TO ANSWER

Connecticut Indemnity has provided a lengthy explication of the various delays in its handling of the present matter. This account does not satisfy the Court that such delay was the result of “mistake, inadvertence, surprise, or excusable neglect” within the meaning of Rule 60(b)(1). The Affidavit of Ronald David Ellin (Docket No. 12), a claims attorney with Viceroy Management Company, an independent claims agency for Connecticut Indemnity, describes a system which will almost inevitably result in delay, rather than any extraordinary occurrence that resulted in failure to answer in a timely manner in this case. The Summons and Complaint’s stop-and-go progress through the labyrinth of Connecticut Indemnity’s institutional structure is not alleged to be the result of any mishap or aberration. This progress includes several other parties that must be introduced before the delays can be explained. First, the surety bonds issued by Connecticut Indemnity were underwritten by Midwest Indemnity Company. Second, Connecticut Indemnity is a subsidiary of Connecticut Specialty Insurance Group (CSIG), which is a subsidiary of Orion Capital Companies. With this background, the following is the explanation for Connecticut Indemnity’s default.

1. The Summons and Complaint in this action were properly served on the Superintendent for Insurance of the State of Maine on November 3, 1993.
2. By letter dated November 9, 1993, a copy of the Summons and Complaint was forwarded to:
Stanley G. Fullwood, Secretary CONNECTICUT INDEMNITY COMPANY,
PO Box 420,
Hartford, CT 06141.
3. Stanley G. Fullwood is a member of the Law Division of Orion and received the Summons and Complaint on November 12, 1993.
4. Fullwood forwarded the Summons and Complaint to CSIG on November 12', 1993.
5. On November 17, 1993, CSIG sent the Summons and Complaint to Midwest, the underwriter of the bond.
6. Midwest received the Summons and Complaint on November 23, 1993, and forwarded them to Viceroy who received the Complaint on or about November 24, 1993.
7. “Due to inadvertence or mistake,” Viceroy did not take any action to ob[483]*483tain outside counsel to represent Connecticut Indemnity in this matter. Affidavit of Ellin, ¶ 10.
8. The next information that Ronald David Ellin was aware of receiving was a letter dated January 5, 1994, from Plaintiffs counsel advising Defendants that a default judgment had been entered in favor of Plaintiff.
9. On January 18, 1994, Ellin retained counsel in Hartford to assist with this matter.
10. On January 19, 1994, counsel in Hartford obtained local counsel to represent Connecticut Indemnity in this matter.
11. On January 31, 1994, an Answer (Docket No. 10) and this motion were filed by local counsel.

To give Connecticut Indemnity credit, they do not appear to argue that the above morass amounts to excusable neglect. It most clearly does not. When the Summons and Complaint were received by the designee selected by Connecticut Indemnity, there remained eleven days in which to file an answer or a request for an extension of time. Thereafter, Defendant points to no explanation other than negligence for the delays and oversights which resulted in Viceroy, the Independent Claims Agency, receiving these papers on or about November 24, 1994. Most important, even when Viceroy did receive the Summons and Complaint, they did absolutely nothing for nearly two months.1 No action was taken to extend the time to answer or to retain local counsel. Even when Connecticut Indemnity received notice of the default judgment, about three weeks passed before this Rule 60 motion was filed.2 Defendant points to no extraordinary circumstances to explain its repeated delays in responding to this action.

LACK OF MERITORIOUS DEFENSE

Connecticut Indemnity does not meet the second requirement for setting aside a default by putting forth a meritorious defense.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bergeron v. Henderson
185 F.R.D. 10 (D. Maine, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
153 F.R.D. 481, 1994 U.S. Dist. LEXIS 3063, 1994 WL 85758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-rosa-construction-inc-v-hugo-key-son-inc-med-1994.