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Creecy v. Kellibrew

United States District Court, District Circuit

July 3, 2013

EDWIN CREECY, Plaintiff,
v.
WILLIAM KELLIBREW, Defendant.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION

The Clerk of this Court entered default against defendant William Kellibrew ("Kellibrew") for torts allegedly committed against plaintiff Edwin Creecy. After entering default, the Court scheduled a hearing for entry of final judgment against the defendant. The defendant subsequently filed a motion to set aside the default one day before the scheduled hearing. The plaintiff failed to appear at the hearing for final judgment and consequently, the Court ordered the plaintiff to show cause for why the case should not be dismissed for failure to prosecute. For the reasons explained below, the Court will discharge the order to show cause. Further, the Court concludes that the defendant's motion to aside default shall be granted. Finally, the Court will order the parties to meet and confer pursuant to Local Rule 16.3, and submit a written report to the Court within two weeks of the conference.

II. FACTUAL BACKGROUND

This case stems from a series of events that occurred on or about May 20, 2010. See generally Compl. (Dckt. #1). The plaintiff filed a complaint on the same day as the events, and a summons was entered for five defendants the following day, May, 21, 2010. The claims against four of the defendants were resolved, but the claims against defendant William Kellibrew remain. This is partly due to problematic and conflicting assertions concerning service. The original proof of service stated that the summons was left with a Mr. George Short on August 7, 2010 and did not list an address. See Proof of Service (Dckt. #29). An Amended Proof of Service entered on April 21, 2011, stated that service was made at 613 Franklin Street, N.E., Washington, DC. See Am. Proof of Service (Dckt. #29). A final Amended Affidavit for Return of Service was entered on or about May 7, 2013 stating that service was actually made upon Mr. George Short at 630 Franklin Street, N.E., Washington, DC 20017, and that the previous affidavit of service was mistaken. See Am. Aff. For Return of Service (Dckt. #66). In the midst of these conflicting assertions, the plaintiff filed a memorandum for an order of default against defendant Kellibrew on May 5, 2011 that noted the incorrect address mentioned in the amended proof of service. See Pl.'s Mot. for Order of Default J. (Dckt. #34) at 1.

The following day, May 6, 2011, the Clerk of the Court entered default against defendant Kellibrew. See Default Decl. (Dckt. #36). After this entry of default, the plaintiff pursued a settlement with the four other defendants, eventually leading to voluntary dismissal of the case on December 10, 2012. See Notice of Dismissal (Dckt. #57). Since the plaintiff did not reach a settlement with defendant Kellibrew, the plaintiff filed a motion to reopen the case to set an ex parte proof hearing to enter final judgment against Kellibrew. See Pl.'s Mot. to Reopen (Dckt. #58) at 1. This hearing was scheduled for April 30, 2013. The day before this hearing, the defendant filed a motion to set aside the default judgment. See generally Def.'s Mot. to Set Aside Default (Dckt. #63). The defendant was present at the hearing, but the plaintiff failed to appear. As a consequence, the Court ordered the plaintiff to show cause for why the case should not be dismissed for failure to prosecute. The plaintiff filed a reply to the show cause order one day after the prescribed deadline, and also filed an opposition to the defendant's motion to set aside the default judgment.

III. ANALYSIS

A. Discharging the Order to Show Cause

The Court's order to show cause for why this case should be dismissed for failure to prosecute is pending. The plaintiff's counsel states that they misread the show cause order to read that the response was due in "14 days" instead of the 14th of the month of May. Pl.'s Mot. for Leave (Dckt # 65) ¶ 4. Plaintiff's counsel realized the error, and filed a reply to the show cause order one day after the due date. See Pl.'s Reply (Dckt #65-2). The reply notes the plaintiff's continued interest in pursuing the matter against the defendant, and asks that the Court not penalize the plaintiff for counsel's oversight. Id. ¶ 4. The Court credits the plaintiff's response, and therefore discharges the order to show cause.

B. Setting Aside Default Against the Defendant

1. Legal Standard

"Default judgments are generally disfavored by courts, because entering and enforcing judgments as a penalty for delays in filing is often contrary to the fair administration of justice." Int'l Painters and Allied Union and Indus. Pension Fund v. H.W. Ellis Painting Co., Inc., 288 F.Supp.2d 22, 25 (D.D.C. 2003). With that said, under Federal Rule of Civil Procedure 55, "[t]he court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b). FED. R. CIV. P. 55. This Court has examined "good cause" to set aside default by considering three factors: "(1) whether the default was willful, (2) whether a set-aside would prejudice plaintiff, and (3) whether the alleged defense was meritorious." Keegel v. Key W. & Caribbean Trading Co., 627 F.2d 372, 373 (D.C. Cir. 1980); Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C. Cir. 1966), Erick Rios Bridoux v. Eastern Air Lines, Inc., 214 F.2d 207, 210 (D.C. Cir. 1954). Importantly, "there is a distinction between the appropriate standard for setting aside a default and that appropriate for setting aside a default judgment." Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). Although both parties refer to there being a "default judgment, " this is not the case. The hearing scheduled for April 30, 2013 was to put on evidence for damages and to enter final judgment against the defendant. Since a final judgment was never entered, this Court will consider defendant's motion to set aside default under the "good cause" Rule 55 analysis, as opposed to Rule 60(b), "Relief from a Judgment or Order, " which the plaintiff offers in his opposition motion.

2. Granting Defendant's Motion to Set Aside Default Judgment

The defendant filed a pro se motion to set aside default judgment against him claiming that he first learned about this case approximately one year ago through an online search of his name. Def.'s Mot. (Dckt # 63) at 1. The defendant also states that he was surprised to see a filing, claiming that he was never served. Id. As set forth above, given the confusing and conflicting nature of the plaintiff's various certificates of service, this claim is certainly plausible. In contrast, the plaintiff states that the process server filed an amended proof of service attesting to the fact that the defendant was served. Pl.'s Opp'n (Dckt #67) at 1. Despite these conflicting facts, the Court granted a motion for order of default against the defendant. Id. at 2. Since this entry of default, the plaintiff resolved the case against other defendants ...


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