United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE
Ronald Flowers has filed a Motion to Set Aside Default
Judgment and a Motion for Reconsideration of Default Judgment
(collectively, the “Motions”). Plaintiff Anthony
Woods, Trustee of the Woods-Flowers Living Trust (the
“Trust”), opposes the Motions. Opp'n. to Mot.
to Set Aside Default J. Upon consideration of the Motions,
the pleadings, relevant law, and the entire record herein, I
find that the circumstances do not warrant vacating the
judgment. Accordingly, Defendant's Motions will be
Anthony Woods, as Trustee, filed an action on July 6, 2017
for ejectment, possession of property, and monetary damages
against Defendant Ronald Flowers, his half-brother. Compl.
¶¶ 3-4, 15-27. The property at issue is a parcel of
land and house on the same in the District of Columbia, at
which Mr. Flowers and Vivian Woods-Flowers, the parties'
mother, lived prior to her death in December 2015.
Id. at ¶¶ 4-5, 8. Prior to her death, Ms.
Woods-Flowers established the Trust and transferred the real
property, which she held in fee simple absolute, to the
Trust. Id. at ¶ 6; see also Id. at Ex.
2. Upon her death, Mr. Woods became Trustee pursuant to the
terms of the Trust. Id. at ¶ 5; see also
Id. at Ex. 1 ¶ 6.1.
complaint alleges that Mr. Flowers continues to live at the
property, and unlawfully refuses to vacate the premises and
pay rent for use of the property. Id. at
¶¶ 8, 10. He is also allegedly causing damage to
the property by failing to undertake any repairs or
maintenance, and refusing to clean the property or pay for
any expenses associated with the property, including property
taxes, which are overdue. Id. at ¶¶ 12-14.
Mr. Woods claims that the property needs to be sold in order
to pay the property taxes. Opp'n. to Mot. to Set Aside
Default J. ¶ 4.
seven attempts to serve Mr. Flowers by process server, this
Court granted a month's additional time to effect
service. See Pl.'s Response to Rule 4(m) Order
¶ 3; Minute Order, Oct. 10, 2017. Service was
effectuated on October 23, 2017, and Mr. Flowers failed to
respond to the complaint by the required date. Mot. for J. by
Default ¶¶ 1-2. On December 4, 2017, on request by
Mr. Woods and pursuant to Federal Rules of Civil Procedure
55(a), the Clerk of Court entered a default against Mr.
Flowers. Clerk's Entry of Default, Dec. 4, 2017, ECF No.
10. On December 27, 2017, I granted Mr. Woods' motion for
default judgment and ordered that possession of the property
at issue be awarded to the Trustee of the Woods-Flowers
Living Trust, that Mr. Flowers be ejected from the property
and vacate the property within 30 days of the order, and that
judgment be entered in favor of Mr. Woods in the amount of
$35, 000 and post-judgment interest to be awarded at the
legal rate. Order Granting Pl.'s Mot. for Default J.,
Dec. 27, 2017, ECF No. 12. Mr. Flowers' Motions seek to
vacate the default and default judgment.
Rule of Civil Procedure 60(b) permits the Court to relieve a
party from a final judgment based on “(1) mistake,
inadvertence, surprise, or excusable neglect; . . . or (6)
any other reason that justifies relief.” The motion
must be made within a “reasonable” time, and for
motions based on Rule 60(b)(1), “no more than a year
after the entry of the judgment”. Fed.R.Civ.P.
60(b)-(c). Relief for excusable neglect is “rare”
and relief pursuant to Rule 60(b)(6) is “even more
rare, being available only in ‘extraordinary
circumstances'”. Owens v. Republic of
Sudan, 864 F.3d 751, 818 (D.C. Cir. 2017). The party
seeking relief has the burden of showing that he is entitled
to relief. Id. at 819. Although this district
“supports a liberal application of Rule 60(b)(1) to
default judgments, ” the Court reviews the motion based
upon “the danger of prejudice to the [non-moving
party], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant,
and whether the movant acted in good faith.”
Id. at 819-20. In addition, the movant must
“assert a potentially meritorious defense.”
Id. at 819.
circumstances of this case, as analyzed through the
aforementioned factors, do not support vacatur. Further, Mr.
Flowers has not asserted a potentially meritorious defense.
respect to the factors, Mr. Woods argues that vacatur is
prejudicial because Mr. Flowers has unlawfully frustrated Mr.
Woods from exercising his authority, as Trustee, to sell the
property since September 2016, including changing the locks
to the property and failing to perform necessary maintenance
on the property. Opp'n. to Mot. to Set Aside Default J.
¶ 4. In addition, Mr. Woods contends that Mr.
Flowers' failure to maintain the property has negatively
impacted the value of the property and will cause a delay in
its sale. Id.; Compl. ¶ 12-13. I find that
vacating the final judgment in this case risks prejudicing
Mr. Woods as the property taxes have not been paid, and
further delay in the sale of the property increases the
chance of a tax sale. See Opp'n. to Mot. to Set
Aside Default J. ¶ 4. As for the other criteria to
consider, the length of the delay was fewer than two months.
See Return of Service/Affidavit of Summons, Oct. 26,
2017, ECF No. 8 (requiring answer by November 13, 2017);
Answer to Compl., ECF No. 13 (filed January 2, 2018). Mr.
Flowers explains that the delay was due to his unemployment
and financial inability to retain counsel. Mot. to Set Aside
Default J. ¶ 1. While this amount of time may not weigh
against him in other contexts, here, there are indications
that Mr. Flowers did not act in good faith in this
proceeding. He did not answer any of seven attempts for
service over a nearly month-long period, resulting in Mr.
Woods needing to incur additional costs to have a process
server wait outside of the property to effectuate service.
See Affidavit of Non-Service, Sept. 29, 2017, ECF
No. 6-1; Opp'n. to Mot. to Set Aside Default J. ¶ 4.
Further, although the complaint was served on October 23,
2017, Mr. Flowers did not retain counsel until more than two
months later, which is more than one month after a response
to the complaint was due and several weeks after the Clerk of
Court entered a default against him. See Mot. for J.
by Default ¶ 1; Mot. for Reconsideration of Default J.
¶ 2.0F Given the risk of prejudice to Mr. Woods
and the indicia of bad faith on the part of Mr. Flowers, I
find that the circumstances do not warrant vacating the final
circumstances did indicate that vacatur is appropriate, Mr.
Flowers has not shown a potentially meritorious defense. Mr.
Flowers answers that the terms of the Trust do not permit Mr.
Woods, as Trustee, to sell the property but rather requires
him to “distribute” the property. Answer to
Compl. ¶ 3; Mot. for Reconsideration of Default J.
¶ 4a. He also responds that he has a one-half beneficial
interest in the property and therefore has the right to
occupy it without a rental agreement or payment of rent.
Id. at ¶ 4b-d; Answer to Compl. ¶ 5.
Neither of these defenses are potentially meritorious.
Woods is the duly appointed Trustee. See Compl. Ex 1
¶ 6.1. As Trustee, Mr. Woods is authorized to pay for,
inter alia, “legally enforceable claims
against the Grantor [Ms. Woods-Flowers] or the Grantor's
estate;  expenses with regard to the administration of the
Grantor's estate; [and/or] federal estate tax, applicable
state inheritance or estate taxes” out of the Trust
Estate, which includes the property at question. See
Compl. Ex. 1 ¶¶ 1.3, 5.1(C); id. at Ex. 2.
In addition, the Trustee is permitted “[t]o sell any
property, for cash or on credit, at public or private
sale”. Id. at Ex. 1 at ¶ 6.8(B). Based on
these unambiguous provisions, the Trustee is authorized to
sell the property in order to pay for, among other things,
the overdue property taxes. Furthermore, while Mr. Flowers
may have resided at the property since childhood, Mot. for
Reconsideration of Default J. ¶ 4a, he did not jointly
own the property with his mother, who was the sole owner of
the property in fee simple absolute, and who transferred the
property and its improvements to the Trust prior to her
death. See Compl. ¶ 6; see also Id. at
Ex. 2. As such, the Trust owns the property and its
improvements in its entirety. Mr. Flowers is not a co-owner
of the property, nor does he have a beneficial interest in
the property. Neither of these arguments provides a
potentially meritorious defense.