ORDER ON MOTIONS
the court are (1) defendant Walter Kidde Portable Equipment,
Inc.'s motion to dismiss or, in the alternative, to set
aside an entry of default and (2) plaintiff Ashley
Summers's motion to amend her complaint. For the
following reasons, defendant Walter Kidde's motion to
dismiss is denied, its motion to set aside the entry of
default is granted, and plaintiff's motion to amend her
complaint is granted.
filed a complaint on October 28, 2016 and an amended
complaint on November 10, 2016. In the amended complaint,
plaintiff alleges that defendants manufactured defective
smoke alarms, which contributed to the death of
plaintiff's husband as a result of a fire at an apartment
building in Portland. (Pl's Am. Compl. ¶¶
1-47.) Plaintiff has brought claims of: count I, wrongful
death, strict liability; count II, wrongful death,
negligence; count III, breach of implied warranty of
merchantability and fitness for a particular purpose; count
IV, survival action, conscious pain and suffering of
decedent; and count V, wrongful death, punitive damages,
amended complaint named as defendants "Walter Kidde
Portable, Inc." and "Schneider Electric, formerly
Invensys Controls." On November 15, 2016, the amended
complaint was served on CT Corporation Systems (CT),
defendant Walter Kidde's registered agent. (Hickman Aff.
¶¶ 3-4.) Although CT determined that it does not
serve as a registered agent for "Walter Kidde Portable,
Inc., " it failed to send a notice to plaintiff's
counsel advising him that service was rejected, in violation
of CT's procedure. (Id. ¶¶ 6-7.) CT
did not forward service to defendant Walter Kidde or its
parent company. (Id. ¶ 8.)
amended complaint also was served on CT as registered agent
for defendant Invensys Controls. (Corrected Hallett Aff.
¶ 1.) Neither defendant filed an answer. Plaintiff filed
motions for an entry of default against both defendants on
December 14, 2016, and corrected motions as to both
defendants on December 16, 2016. The clerk entered default
against both defendants on December 16, 2016. On December 19,
2016, defendant Walter Kidde received plaintiff's
corrected motion for an entry of default and the court's
scheduling order. (Valentine Aff. ¶ 5.)
December 22, 2016, defendant Walter Kidde filed a motion to
dismiss or, in the alternative, to set aside the entry of
default and for leave to file a responsive pleading.
Plaintiff filed a motion to amend her complaint on December
29, 2016. Defendants have not opposed plaintiff's motion.
Plaintiff opposed defendant Walter Kidde's motion on
January 11, 2017. Defendant Walter Kidde filed a reply on
January 18, 2017.
Motion to Dismiss
cases where the court has dismissed a complaint for
insufficient service of process, the plaintiff had failed to
follow the proper procedure for effecting service. See,
e.g.. Brown v. Thaler, 2005 ME 75, ¶ 6,
880 A.2d 1113; Uotinen v. Hall, 636 A.2d 991, 992
(Me. 1994). In contrast, plaintiff properly served the
summons and complaint on defendant Walter Kidde's
registered agent. See M.R. Civ. P. 4(d)(1). Plaintiff's
mistake in misnaming defendant Walter Kidde "is not
fatal to the complaint and does not require dismissal."
Jackson v. Borkowski, 627 A.2d 1010, 1014 (Me.
1993); see also Clark v. Me. Dep't of Corr., 463
A.2d 762, 766 (Me. 1983) ("Because this is a case
involving the misnaming of the party defendant rather than
joining the wrong party defendant, we do not think that
dismissal of the complaint is required.")- As a result,
defendant Walter Kidde is not entitled to a dismissal.
Motion to Set Aside Entry of Default
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 court may set aside an
entry of default for good cause. M.R. Civ. P. 55(c).
"Good cause requires a good excuse for untimeliness and
a meritorious defense." Estate of Gordan, 2004
ME 23, ¶ 19, 842 A.2d 1270. The "good cause"
standard for setting aside an entry of default is less
stringent than the "excusable neglect" standard for
setting aside a default judgment. Hamby v. Thomas
Realty Assocs., 617 A.2d 562, 564 (Me. 1992).
L'Hommedieu v. Ram Aircraft, L.P., the court set
aside an entry of default where the defendant's failure
to file an answer was the result of a "breakdown"
in defendant's parent company's procedure for
managing complaints. No. BCD-CV-13-33, 2013 Me. Super. LEXIS
228, at *5 (Sept. 20, 2013). The fact that defendant had an
established procedure for handling complaints, and that it
responded promptly after learning of the default,
demonstrated that defendant's untimeliness was
"likely caused by inadvertence rather than an
intentional disregard for the court process."
Id. Similarly, defendant Walter Kidde's
registered agent and parent company have an established
procedure for handling complaints, and defendant Walter Kidde