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Summers v. Walter Kidde Portable, Inc.

Superior Court of Maine, Cumberland

March 8, 2017

ASHLEY SUMMERS, Plaintiff
v.
WALTER KIDDE PORTABLE, INC., et al., Defendants

          ORDER ON MOTIONS

          Nancy Mills, Justice

         Before 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.

         FACTS

         Plaintiff 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, strict liability.

         The 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.)

         The 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.)

         On 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.

         DISCUSSION

         1. Motion to Dismiss

         In 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.

         2. Motion to Set Aside Entry of Default

         "When 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).

         a. Good Excuse

         In 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 ...


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