STATE OF MAINE RECEIVED & FILED SUPERIOR COURT ANDROSCOGGIN, SS. CIVIL ACTION JUN 16 2016 DOCKET NO. AUBSC-CV-15-186 ANOROSCO~GIN ; BAMBI ZAYAC, SUPER IOR cyURT j Plaintiff, ) ) v. ) ORDER ON DEFENDANT'S MOTION ) TO SET ASIDE ENTRY OF DEFAULT REGIS CORPORATION, d /b / a ) REGIS SALON, ) ) Defendant. )
Presently before the court is Defendant Regis Corporation's motion to set aside
an entry of default. Based on the following, Defendant's motion is denied.
I. BACKGROUND The complaint alleges that Defendant Regis Corporation is a Minnesota
Corporation that operates a hair salon in the Auburn Mall in Auburn, Maine. (Compl.
<[<[ 2-3.) Plaintiff Bambi Zayac alleges that on or about December 27, 2013, she was
injured while at Defendant's salon in Auburn. (Id. <[
Defendant negligently failed to maintain its salon in safe condition because its salon
chairs have a footrest that catches on the pant legs of people getting up from the chair.
(Id.
Defendant was served with Plaintiff's complaint November 12, 2015. Plaintiff
subsequently filed its complaint with the court on November 23, 2015. Defendant failed
to timely answer the complaint. Plaintiff filed a request for an entry of default on
December 24, 2015, which the clerk entered on December 31, 2015. An amended
request for entry of default was filed on January 6, 2016, which the clerk entered on
January 8, 2016. Defendant filed its answer on January 14, 2016.
Page 1 of 6 Defendant filed this motion to set aside the entry of default on January 19, 2016.
Defendant's motion was supported by an affidavit of Jennifer M. Grant, the Manager of
the Liability Program - Insurance & Risk Management for Defendant. (Grant Aff.
Plaintiff filed its objection to the motion on February 4, 2016. Plaintiff's objection was
supported by an affidavit from her counsel and other supporting documents.
(Ferguson Aff.
11. STANDARD OF REVIEW
Pursuant to Maine Rule of Civil Procedure 55, the court may set aside an entry of
default for "good cause shown." M.R. Civ. P. 55(c). The "good cause" standard is less
stringent than the "excusable neglect" standard required to set aside a default judgment
pursuant to Maine Rule of Civil Procedure 60(b ). Thomas v. Thompson, 653 A.2d 417, 420
n.2 (Me. 1995). To show "good cause," the plaintiff must set forth both a good excuse
for failing to timely answer the complaint and a meritorious defense. Town of Wiscasset
v. Mason Station, LLC, 2015 ME 59, 'JI 7, 116 A.3d 458. To establish a meritorious defense,
the defendant need not prove their defense at this stage. Hart v. Terry L. Hopkins, Inc.,
588 A.2d 1187, 1190 (Me. 1991). The defendant's version of the facts is deemed to be
true, and the court examines the allegations to determine whether the defendant's
version of the facts constitutes a cognizable defense to the complaint. Id.
III. ANALYSIS
For the purposes of this motion, Plaintiff concedes the Defendant has sufficiently
alleged the existence of a meritorious defense. (Pl. Opp'n to Def. Mot. Set Aside Default
7.) Thus, the only dispute is whether Defendant has established a "good excuse" for
failing to timely respond to the complaint. Defendant has failed to do so.
Defendant has failed to offer any excuse for why it failed to file an answer before
December 2, 2015. In his affidavit, Plaintiff's counsel avers that he sent Defendant a
Page 2 of 6 notice of claim on January 22, 2014. (Ferguson Aff.
asserts that he received a letter from Defendant acknowledging receipt of the notice of
claim. (Id.
Plaintiff's injuries, medical records, and medical bills. (Id.
Defendant a demand letter on May 19, 2015. (Id.
did not receive a response from Defendant, the demand letter was not returned by the
post office, and his attempts to follow-up with Defendant's agent were unsuccessful.
(Id.
Defendant was served with a two-page complaint containing only seven
allegations on November 12, 2015. Defendant's responsive pleading was due on
December 2, 2015. See M.R. Civ. P. 12(a). Defendant did not file an answer.
Instead, Defendant has sought to demonstrate a good excuse for its failure to
respond to the complaint before the entry of default. In her affidavit, Ms. Grant avers
that she reviewed the complaint and telephoned Plaintiff's counsel on December 3,
2015. (Grant Aff.
sent a demand package to Defendant but that the demand package had been returned,
and therefore, never received by Defendant. (Id.) However, in his affidavit, Plaintiff's
counsel asserts that the demand package and supporting documents were never
returned to counsel. (Ferguson Aff.
Ms. Grant further avers that, during the December 3, 2015 phone conversation,
Plaintiff's counsel "agreed to grant a two-week extension of time to respond to the
Complaint and specifically stated that he would not seek default. He further stated that
he would grant further extensions if settlement discussions were warranted." (Grant
Aff.
Page 3 of 6 This email will confirm that although the answer was due yesterday, I have agreed not to seek default. I am agreeable to a 2 week extension of time to file an answer. We can agree to a further extension if further settlement discussions are warranted.
(Ferguson Aff.
Ms. Grant emailed Plaintiff's counsel the next day, December 4, 2015, to obtain
Plaintiff's medical records and medical bills and to inform Plaintiff's counsel that the
case was being transferred to a third-party administrator. (Grant Aff.
Grant's email stated:
Given the injury in this case, which I assume is documented by extensive medical records, I have elected to transfer to our [third-party administrator], Sedgwick. I believe this will lead to a quicker review of the entire file and hopefully a prompter resolution.
(Ferguson Aff.
administrator on December 8, 2015. (Id.
This is to confirm that the subject matter was reported to Sedgwick as claims administrator for the Regis Corporation account. The case was assigned to me a handling adjuster. I will review your demand package and respond as promptly as possible.
(Id.)
Ms. Grant avers that she "was of the understanding" that Plaintiff's counsel
understood it would take "some time" for her or t~e third-party administrator to
review the more than 200 pages of medical records and bills and that Plaintiff's counsel
would not seek default while the documents were under review. (Grant Aff.
Neither Ms. Grant, the third-party administrator, nor any other agent for
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE RECEIVED & FILED SUPERIOR COURT ANDROSCOGGIN, SS. CIVIL ACTION JUN 16 2016 DOCKET NO. AUBSC-CV-15-186 ANOROSCO~GIN ; BAMBI ZAYAC, SUPER IOR cyURT j Plaintiff, ) ) v. ) ORDER ON DEFENDANT'S MOTION ) TO SET ASIDE ENTRY OF DEFAULT REGIS CORPORATION, d /b / a ) REGIS SALON, ) ) Defendant. )
Presently before the court is Defendant Regis Corporation's motion to set aside
an entry of default. Based on the following, Defendant's motion is denied.
I. BACKGROUND The complaint alleges that Defendant Regis Corporation is a Minnesota
Corporation that operates a hair salon in the Auburn Mall in Auburn, Maine. (Compl.
<[<[ 2-3.) Plaintiff Bambi Zayac alleges that on or about December 27, 2013, she was
injured while at Defendant's salon in Auburn. (Id. <[
Defendant negligently failed to maintain its salon in safe condition because its salon
chairs have a footrest that catches on the pant legs of people getting up from the chair.
(Id.
Defendant was served with Plaintiff's complaint November 12, 2015. Plaintiff
subsequently filed its complaint with the court on November 23, 2015. Defendant failed
to timely answer the complaint. Plaintiff filed a request for an entry of default on
December 24, 2015, which the clerk entered on December 31, 2015. An amended
request for entry of default was filed on January 6, 2016, which the clerk entered on
January 8, 2016. Defendant filed its answer on January 14, 2016.
Page 1 of 6 Defendant filed this motion to set aside the entry of default on January 19, 2016.
Defendant's motion was supported by an affidavit of Jennifer M. Grant, the Manager of
the Liability Program - Insurance & Risk Management for Defendant. (Grant Aff.
Plaintiff filed its objection to the motion on February 4, 2016. Plaintiff's objection was
supported by an affidavit from her counsel and other supporting documents.
(Ferguson Aff.
11. STANDARD OF REVIEW
Pursuant to Maine Rule of Civil Procedure 55, the court may set aside an entry of
default for "good cause shown." M.R. Civ. P. 55(c). The "good cause" standard is less
stringent than the "excusable neglect" standard required to set aside a default judgment
pursuant to Maine Rule of Civil Procedure 60(b ). Thomas v. Thompson, 653 A.2d 417, 420
n.2 (Me. 1995). To show "good cause," the plaintiff must set forth both a good excuse
for failing to timely answer the complaint and a meritorious defense. Town of Wiscasset
v. Mason Station, LLC, 2015 ME 59, 'JI 7, 116 A.3d 458. To establish a meritorious defense,
the defendant need not prove their defense at this stage. Hart v. Terry L. Hopkins, Inc.,
588 A.2d 1187, 1190 (Me. 1991). The defendant's version of the facts is deemed to be
true, and the court examines the allegations to determine whether the defendant's
version of the facts constitutes a cognizable defense to the complaint. Id.
III. ANALYSIS
For the purposes of this motion, Plaintiff concedes the Defendant has sufficiently
alleged the existence of a meritorious defense. (Pl. Opp'n to Def. Mot. Set Aside Default
7.) Thus, the only dispute is whether Defendant has established a "good excuse" for
failing to timely respond to the complaint. Defendant has failed to do so.
Defendant has failed to offer any excuse for why it failed to file an answer before
December 2, 2015. In his affidavit, Plaintiff's counsel avers that he sent Defendant a
Page 2 of 6 notice of claim on January 22, 2014. (Ferguson Aff.
asserts that he received a letter from Defendant acknowledging receipt of the notice of
claim. (Id.
Plaintiff's injuries, medical records, and medical bills. (Id.
Defendant a demand letter on May 19, 2015. (Id.
did not receive a response from Defendant, the demand letter was not returned by the
post office, and his attempts to follow-up with Defendant's agent were unsuccessful.
(Id.
Defendant was served with a two-page complaint containing only seven
allegations on November 12, 2015. Defendant's responsive pleading was due on
December 2, 2015. See M.R. Civ. P. 12(a). Defendant did not file an answer.
Instead, Defendant has sought to demonstrate a good excuse for its failure to
respond to the complaint before the entry of default. In her affidavit, Ms. Grant avers
that she reviewed the complaint and telephoned Plaintiff's counsel on December 3,
2015. (Grant Aff.
sent a demand package to Defendant but that the demand package had been returned,
and therefore, never received by Defendant. (Id.) However, in his affidavit, Plaintiff's
counsel asserts that the demand package and supporting documents were never
returned to counsel. (Ferguson Aff.
Ms. Grant further avers that, during the December 3, 2015 phone conversation,
Plaintiff's counsel "agreed to grant a two-week extension of time to respond to the
Complaint and specifically stated that he would not seek default. He further stated that
he would grant further extensions if settlement discussions were warranted." (Grant
Aff.
Page 3 of 6 This email will confirm that although the answer was due yesterday, I have agreed not to seek default. I am agreeable to a 2 week extension of time to file an answer. We can agree to a further extension if further settlement discussions are warranted.
(Ferguson Aff.
Ms. Grant emailed Plaintiff's counsel the next day, December 4, 2015, to obtain
Plaintiff's medical records and medical bills and to inform Plaintiff's counsel that the
case was being transferred to a third-party administrator. (Grant Aff.
Grant's email stated:
Given the injury in this case, which I assume is documented by extensive medical records, I have elected to transfer to our [third-party administrator], Sedgwick. I believe this will lead to a quicker review of the entire file and hopefully a prompter resolution.
(Ferguson Aff.
administrator on December 8, 2015. (Id.
This is to confirm that the subject matter was reported to Sedgwick as claims administrator for the Regis Corporation account. The case was assigned to me a handling adjuster. I will review your demand package and respond as promptly as possible.
(Id.)
Ms. Grant avers that she "was of the understanding" that Plaintiff's counsel
understood it would take "some time" for her or t~e third-party administrator to
review the more than 200 pages of medical records and bills and that Plaintiff's counsel
would not seek default while the documents were under review. (Grant Aff.
Neither Ms. Grant, the third-party administrator, nor any other agent for
Defendant ever contacted Plaintiff's counsel to request a further extension of time fo
engage in settlement negotiations or to file an answer. (Ferguson Aff.
counsel filed a request for an entry of default with the court on December 24, 2015.
Page 4 of 6 Plaintiff's counsel did not contact Ms. Grant or the third-party administrator before
seeking an entry of default. (Grant Aff. 9[ 7.)
Defendant's excuse is essentially that Ms. Grant "was of the understanding" that
Plaintiff's counsel would not seek an entry of default and would permit Defendant an
indefinite amount of time to review the demand package, the medical records, and the
medical bills before answering the complaint. However, neither Ms. Grant nor the
third-party administrator ever communicated to Plaintiff's counsel that they would
need additional time to review the demand package and the records. Neither Ms. Grant
nor the third-party administrator ever explicitly requested a further extension of time
from Plaintiff's counsel. Rather, both Ms. Grant and the third-party administrator
assured Plaintiff's counsel that the third-party administrator would review the records
and respond promptly.
The affidavits submitted by Ms. Grant and Plaintiff's counsel make it clear that
counsel's agreement to not seek entry of default was not indefinite. Plaintiff's counsel
agreed to only a two-week extension of time, until December 17, 2015, for Defendant to
file an answer. Plaintiff's counsel was open to further extensions of time only "if further
settlement discussions are warranted." (Grant Aff. CJ[ 2; Ferguson Aff. CJ[ 10, Ex. D.)
Neither Ms. Grant, the third-party administrator, nor any other agent for Defendant
requested a further extension of time. Therefore, Ms. Grant's "understanding" that
Plaintiff's counsel would permit Defendant an indefinite amount of time to answer the
complaint was incorrect and does not constitute a good excuse.
Additionally, because Plaintiff's counsel did not file a request for an entry of
default until December 24, 2015, Defendant actually had an additional week to file an
answer. Defendant did not file an answer until January 14, 2016, six days after the
amended entry of default.
Page 5 of 6 Based on the foregoing, Defendant has not offered a good excuse for why it
failed to file an answer to Plaintiff's two-page complaint prior to December 2, 2015, or
during the additional three weeks permitted by the Plaintiff. Therefore, Defendant has
not established "good cause" in order to set aside the entry of default.
IV. CONCLUSION
Defendant's motion to set aside the entry of default is denied.
The Clerk is directed to enter this Order on the civil docket by reference pursuant
to Maine Rule of Civil Procedure 79(a).
Date: June 15, 2016
Page 6 of 6