ANN C. MULLER, Plaintiff,
STEPHANIE S. LAY, Defendant.
ORDER ON DEFENDANT'S MOTIONS TO SET ASIDE ENTRY
OF DEFAULT AND TO VACATE DEFAULT JUDGMENT
Horton, Justice, Superior Court
Stephanie Lay has filed a Motion to Lift Default and a
separate Motion to Vacate Default Judgment. For the following
reasons, Defendant's Motion to Lift Default is denied but
her Motion To Vacate Default Judgment is granted.
15, 2016, Plaintiff Ann Muller filed a complaint alleging
breach of a loan agreement, unjust enrichment, and
improvident transfer. According to the complaint, Plaintiff
loaned a credit card to Defendant with the understanding that
Defendant would repay the resulting balance, including
interest. (Pl's Compl. ¶¶ 3_5.)
Between 2008 and 2014, Defendant charged $49, 455.50 to the
card, which, including interest, resulted in a balance of
$62, 097.60. (Id. ¶¶ 6-10.) Plaintiff
closed the account in 2014 and paid the balance.
(Id. ¶ 9-) Defendant has since paid Plaintiff
$15, 000.00, and Plaintiff has applied $7, 000.00 from the
parties' joint savings account toward the loan.
(Id. ¶¶ 12-14.) Defendant has not paid the
remaining balance, which totals $42, 097.60. (Id.
was served with the summons and complaint in hand on July 11,
2016. Defendant did not answer the complaint, and, on August
12, 2016, Plaintiff requested an entry of default and a
default judgment. The clerk entered default and a default
judgment on August 17, 2016. On September 1, 2016, Defendant
filed (1) an objection to Plaintiffs affidavit and request
for a default judgment and (2) a motion to set aside the
entry of default. On September 9, 2016, Plaintiff filed a
motion to vacate the default judgment. Plaintiff opposed
Defendant's motions on September 21, 2016.
Standard of Review
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by
these rules and that fact is made to appear by affidavit or
otherwise, the clerk shall enter the party's
default." M.R. Civ. P. 55(a).
the claim is for "a sum certain or for a sum which can
by computation be made certain, " the clerk is further
authorized to enter a default judgment. M.R. Civ. P.
55(b)(1). Once a default judgment has been entered, the court
may set it aside only in accordance with Rule 60(b). M.R.
Civ. P. 55(c). Under Rule 60(b), the movant must show
excusable neglect, which requires; (1) a reasonable excuse
for the movant's inattention to the court proceedings,
and (2) a meritorious defense to the underlying action.
Ezell v. Lawless, 2008 ME 139, ¶ 22, 955 A.2d
202. The excusable neglect standard of Rule 60(b) is more
stringent than the good cause standard of Rule 55(c).
Theriault v. Gauthier, 6S4 A.2d 1255, 1256-57 (Me.
Motion to Lift Default
offers two excuses for her inattention to the court
proceedings: (1) she was making salsa for her business when
she was served and set the summons and complaint aside, and
(2) she assumed the summons and complaint related to a legal
dispute involving her son, which her son's father was
handling. (Def.'s Mot. Set Aside Default 2; Lay Aff.
Defendant's first argument, the press of other business
does not constitute excusable neglect. Steel Serv. Ctr.
v. Prince Macaroni Mfg. Co., 438 A.2d 881, 882 (Me.
1981); see Truman v. Browne, 2001 ME 182,
¶¶ 10-11, 788 A.2d 168 (pro se litigants held to
same standard as attorneys). Defendant states that she could
not look at the summons and complaint when they were served
on her because the task of preparing her salsa required her
concentration and, when she was finished preparing her salsa,
she was exhausted and went straight to bed. (Lay Aff.
¶¶ 9-10, IS.) Defendant offers no explanation for
her failure to respond to the complaint within the following
20 days, other than the fact that the summons and complaint
became buried on her desk and she forgot about them.
(Id. ¶ 14.) The court does not consider this to
be a reasonable excuse for Defendant's inattention.
Defendant's second argument, a "mere palpable
mistake" does not constitute excusable neglect.
Begin v. Jerry's Sunoco, Inc., 435 A.2d 1079,
1083 (Me. 1981). Defendant states that the dispute involving
her son, which she mistakenly believed was related to the
summons and complaint in this action, involved an ambulance
company. (Lay Aff. ¶ 11.) A cursory review of the
complaint's caption would have alerted her to the fact
that the summons and complaint initiated a new action
involving Plaintiff, and not involving any ambulance company.
The court does not consider Defendant's failure to review
the complaint to be a reasonable excuse for her inattention.
Accordingly, the default will stand.
Motion to Vacate ...