ORDER ON DEFENDANT'S MOTION TO SET ASIDE ENTRY OF
Gay Kennedy Justice, Superior Court
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.
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. ¶¶ 4, 6.) Plaintiff alleges
that 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. ¶ 5.)
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.
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. ¶ 1.) 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. ¶ 1.) Defendant
filed a reply on February 12, 2016.
STANDARD OF REVIEW
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, ¶ 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.
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.
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 notice
of claim on January 22, 2014. (Ferguson Aff. ¶ 2, Ex.
A.) Plaintiff's counsel asserts that he received a letter
from Defendant acknowledging receipt of the notice of claim.
(Id. ¶ 3.) Plaintiff's counsel sent
additional letters to Defendant regarding Plaintiff's
injuries, medical records, and medical bills. (Id.
¶ 4.) Plaintiff's counsel sent Defendant a demand
letter on May 19, 2015. (Id. ¶ 5.)
Plaintiff's counsel avers that he 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.
¶¶ 5-6.) Defendant does not dispute these
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.
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. ¶ 2.) Ms. Grant avers that
Plaintiff's counsel informed her that he had 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.
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.