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Zayac v. Regis Corp.

Superior Court of Maine, Androscoggin

June 15, 2016

BAMBI ZAYAC, Plaintiff,
v.
REGIS CORPORATION, d/b/a REGIS SALON, Defendant.

          ORDER ON DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT

          Mary Gay Kennedy Justice, Superior Court

         Presently 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.

         I. BACKGROUND

         The 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.)

         Defendant 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.

         Defendant 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.

         II. STANDARD OF REVIEW

         Pursuant 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.

         III. ANALYSIS

         For the 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.

         Defendant 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 assertions.

         Defendant 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.

         Instead, 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. ¶ 5.)

         Ms. 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. ...


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