Full text
Whethan v. Gracie
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-05-315
DIANE -WHETHAN., -
Plaintiff v. ORDER
FREDERICK S. GRACIE, * -- *'.
Defendant
Before the court are motions by defendant Frederick Gracie to set aside a default entered against him by the clerk on June 15, 2005 and to dismiss the complaint against him on statute of limitations grounds.
The file reflects that a summons and complaint were served on Gracie on May 16, 2005 and that the complaint was thereafter filed in the Clerk's office on May 27, 2005. The complaint alleged that Gracie was responsible for injuries received in a motor vehicle accident that had occurred on October 16, 1997.
No answer having been filed by June 5, 2005, as required by the summons, plaintiff Diane Whethan sought entry of a default on June 13, 2005 and a default was entered by the Clerk on June 15,2005. Two days later counsel for Gracie filed an answer to the complaint. Four days after that, on June 21, 2005, counsel for plaintiff filed an amended complaint, correcting the date of the alleged accident to August 27, 2003.
On June 27, 2005 apparently recognizing that a default had been entered before
the answer was filed, counsel for Gracie moved to set aside the default and also moved -- - - - - -- - ---
to dismiss the complaint on statute of limitations grounds, presumably unaware that an
amended complaint had been filed in the interim. - - -. U l ~ d e Kule r 55(') the court set aside 2 default for bcoed CziLSe ShOT.;I-i..i h e
movant must show both a good exctlse for the untimeliness in pleading and tlhe existence of a meritorious defense. See Thomas v. Thompson, 653 A.2d 417,419-20 (Me. 1995).
In fhis case, the file and the affidavits submitted in support of the motion to set aside the default establish that (1)Gracie is 82 years old, (2) he suffers from lymphoma and occasionai forgetfuiness, (3) his daughter assists him ~ v i t hhis personal affairs, (4) h s daughter promptly took action to deal with the complaint as soon as she learned of it, (5) only two days passed between the entry of default and the filing of an answer, and (6) only 12 days passed between the entry of default and the filing of a motion to set that default aside. Under these circumstances, the court concludes that Gracie has sho~vnan adequate excuse for the short delay invoived. This is particuiariy true
hecause the standard for shnwing good cai-~~e .) lower than fie more r - r t~nderR-I-I!~3 . 3 ( ~15
exacting excusable neglect standard applicable under Rule 60(b) once a default judgment has been entered. See Erslune v. Commissioner of Corrections, 682 A.2d 681, 684 (hlie. i996j.
To establish the existence of a meritorious defense for purposes of Rule 55(c), a party need not demonstrate &at it will necessarily prevail on the merits but need only set for& facts which if proven at trial would constitute a viable defense. See Harnby v. Thomas Realty Associates, 617 A.2d 562,564 (Me. 1992); Coon v. Grenier, 867 F.2d 73, 77 (1st Gr. 1989). Iri this instance a meritoi-ious defense - stahite of limita"uoris - has clearly
been established f ~ the r ~ r J yc~mplaint~ h 2 :\.as t iri effect at the ';;,me the defaldt was
entered. Moreover, Graciefs statement that he does not believe he was at fault (Affidavit q4) is sufficient to meet the low threshold of showing a potentially meritorious defense even if the amended complaint were to be deemed the operative pleading. complaint as of right on June 21, once both a default had entered and an answer had
been filed. To the extent necessary, the court grants leave to amend and ~ l i l therefore l
deny Gracie's statute of limitations motion. Gracie now needs to file an answer to the amended complaint, and it is unclear whether that complaint has been served on counsel ior Gracie. If service has not been made, ccunsei for Whethan sl~allserve
the amended compiaint by maii within 5 days ci the date of this counsel for Gracie 1~1th
order, and Gracie shail have 10 days thereafter to file an answer to the amended complaint.
In coi~clusion,the law does not favor defaults, and there is a strong preference for deciding cases on their merits. See Thomas v. Thompson, 653 A.2d at 420. In this case Whethan has not offered any suggestion or shoszring that she was prejudiced default aside. Accordingly, the eritry shall be:
The motion by defendant Gracie to set aside d1.e entry of default against h m and for leave to file a late answer is granted. Gracie's motion tc dismiss is denied. Plaintiff 14ihethan is granted leave to file an amended complaint, and Gracie shall file an answer to the amended complaint ~z7ith1115 days from the date of this order. The clerk is directed to incorporate h s order in the docket by reference pursuant to Rule 79(a).
Dated: July 2-1 ,2005
\ TI- - -42 -- -,,n T A T arreii I r L CL C ~L ~u . v v Justice, Superior Court
= COURT? nd County 3x 287 le 041 12-0287
HARRY CENTER, ESQ. 7 0 7 SABLE OAKS DRIVE SOUTH PORTLAND, ME 04106
: COURTS i d County :1: 287 e 041 12-0287