Zsiga v. Sullivan

• Court: Superior Court of Maine
• Decided: September 20, 2005
• Docket: CUMcv-03-312
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT C W E R L A N D , ss CIVIL ACTION DOCKET NO. CV-03-312 'L'/

CARLENE ZSIGA AND * EDWARD ZSIGA, * * Plaintiff * * ORDER

JOHN P. SULLIVAN, * * Defendant * *

This case comes before the Court on Defendant John P. Sullivan's Motion

to Vacate an Entry of Default and Plaintiffs Carlene and Edward Zsiga's Motion

for a Default Judgment.

FACTS

On July 27,1997, Plaintiff Carlene Zsiga and Defendant were in an

automobile accident on the Maine Turnpike Exit Spur Number 7. On May 19,

2003, Plaintiffs served Defendant in hand with a complaint seelung a judgment

on liability and damages. Defendant failed to answer the complaint within 20

days. Plaintiffs filed a request for a default judgment on June 25, 2003. On June

26,2003, the clerk entered an entry of default. On August 8, 2003, the Court

received a personal letter from Defendant with the police report attached asking

the Court to vacate the default judgment. Plaintiffs were not served with a copy

of this letter. The letter indicated that Defendant's failure to answer within the

time limit was due to his traveling in and out of the State during the previous

couple of months. The letter and the police report state that Plaintiff swerved in front of Defendant's vehcle. Almost two years later, on July 1,2005, Plaintiffs

filed a motion opposing Defendant's motion to vacate the default judgment. On

the same day, Plaintiffs filed a motion for a default judgment from the Court

requesting a hearing on damages.

DISCUSSION

The main issue before the Court is whether the entry of default entered

into against Defendant can be set aside pursuant to M.R. Civ. P. 55(c). Plaintiff

opposes this motion and is aslung this Court for a default judgment pursuant to

M.R. Civ. P. 55(b)(2).

1. Defendant had Good Cause

Pursuant to M.R. Civ. P. 55(c), the Court may set aside an entry of default

for good cause shown. Thomas v. Thomas; 653 A.2d 417; Me. 1995; M.R. Civ. P.

55(c). The proponent has the burden to show that a good excuse exists for an

untimely pleading as well as the existence of a meritorious defense. Id.

Although the rule does not define good cause, the Law Court has provided some

guidance. The Court has held that whle establishng excusable neglect to set

aside a default judgment requires a reasonable excuse for the default,

establishng good cause to set aside an entry of default is less stringent. Theriault

v. Gauthier, 634 A.2d 1255,1256-57 (Me. 1993); M.R. Civ. P. 60(b). T h s relatively low threshold for establishing good cause parallels Maine's strong preference for

deciding cases on the merits. Thomas, 653 A.2d at 420. "Consistent with t h s

preference, . . . motions to set aside a default have been granted in cases when no

gross neglect was involved in the late filing, the nondefaulting party will not be

substantially prejudiced by reopening the case, and a meritorious defense exists."

Id.; Estate of Gordan, 2004 ME 23,842 A.2d 1270,1276 (finding good cause when the defendant acted promptly to seek relief from the default and the plaintiff was

not subjected to a lengthy delay); Thonzas, 653 A.2d at 420 (An insurer's failure to

file an answer in a timely fashon because its employee handling the claim was of

a vacation was not gross neglect when it responded shortly after becoming aware

of it).

Here, Defendant responded approximately eight weeks after receiving

service of the complaint. He admits that he made a mistake by not responding

on time. His justification for h s tardiness is 1)that he was in and out of the State

at that time, and 2) that he simply could not believe that Plaintiff could bring a

suit against him when the police reported that Plaintiff "changed lanes suddenly

to avoid a vehcle coming off the 1-295 ramp" causing Defendant to strike her

velucle in the rear.' Furthermore, Plaintiffs' insurance carrier paid for

Defendant's property damage in full.

Although Plaintiffs did not receive notice of Defendant's motion to vacate,

Plaintiffs initially sought the default judgment on June 25, 2003. When the clerk

did not issue that judgment, Plaintiffs could have asked the Court to amend the

complaint to include a sum certain, or to grant a hearing on damages. Instead,

they waited two years to oppose Defendant's motion to vacate. In light of the

these facts, an eight-week delay did not prejudice the Plaintiffs when they waited

almost six years to file suit and two more years to act on Defendant's motion.

Although Defendant's excuse may not be the most persuasive, it does

appear to be reasonable in light of the facts of the case. Moreover, Defendant's

eight-week delay does not rise to the level of gross neglect or prejudice to the

Rule 55(c) has no requirement that the evidence presented be admissible at the trial of the case to establish the truth of the facts and circumstances alleged by the moving party as support for a claimed meritorious defense. Hart v. Terry L. Hopkins, lnc., 588 A.2d 1187,1190 (1991). Plaintiffs. Therefore, Defendant had good cause for his untimeliness.

2. Defendant has a Meritorious Defense

For the purposes of h s component of the motion, the crux of the analysis is

whether the moving party's version of the facts and circumstances constitutes a

defense to the opposing party's cause of action. Hart v. Terry L. Hopkins, Ilzc., 588

A.2d 1187/1190 (1991). The allegations may be presented, inter alia, in the

motion to set aside the default, the answer, by affidavits, or memoranda. Id.

"They must, however, be presented in a sufficiently timely fashion to allow the

opposing party an opportunity to question the legal sufficiency of the defense

and with enough elaboration of facts to permit the court to determine whether, if

the moving party's version were believed by the trier of fact, the defense would

be meritorious." Id.

Here, Defendant's letter on August 8, 2005 states, "the other vehcle

suddenly swerved in front of hm." T h s allegation is supported by the attached

police report stating that Plaintiffs' vehicle "changed lanes suddenly to avoid a

vehicle coming off the 1-295 ramp." The report further states and demonstrates

that Defendant's vehcle was unable to stop and struck Plaintiffs' vehcle when

she swerved in front of him. In examining the letter and the police report,

Defendant has alleged enough facts to establish the elements required for the

defense of comparative negligence.

Defendant's Motion to Vacate is GRANTED. Plaintiff's Motion for a Default Judgment is D CLERK OF COURTS Cumberland County P.O. Box 287 Portland, Maine 041 12-0287

CHRISTOPHER DINAN ESQ PO BOX 7046 PORTLAND ME 04112 -

CLERK OF COURTS Cumberland County P.O. Box 287 Portland. Maine 041 12-0287

GARY LIBBY ESQ 477 CONGRESS STREET SUITE 418 PORTLAND ME 04101 '\