EMMA M. WALSH, Plaintiff
PETCO ANIMAL SUPPLIES INC., et al., Defendants
ORDER ON DEFENDANT REAL PETS CORP.'S MOTION TO
SET ASIDE ENTRY OF DEFAULT
the court is defendant Real Pets Corp.'s motion to set
aside entry of default and allow late filing of
answer: For the following reasons, the motion is
complaint was filed on January 26, 2018. Defendant Real Pets
Corp. was served on February 26, 2018. On April 2, 2018,
plaintiff filed a request for default against defendant Real
Pets Corp. Default against defendant Real Pets Corp. was
entered on April 2, 2018. On April 17, 2018, defendant Real
Pets Corp. filed an answer to the complaint and a motion to
set aside entry of default.
court may set aside entry of default for good cause. M.R.
Civ. P. 55(c). Good cause requires both a good excuse for
untimeliness and a meritorious defense. Roussel v.
Ashby, 2015 ME 43, 3 13, 114 A.3d 670. There is a strong
preference for deciding cases on the merits. See Thomas
v. Thompson, 653 A.2d 417, 420 (Me. 1995). An entry of
default has been set aside "in cases when no gross
neglect was involved in the late filing, the nondefaulting
party will not be substantially prejudiced by reopening the
case, and a meritorious defense exists." Id.
Real Pets Corp. argues that its failure to file a timely
answer to the complaint does not rise to the level of gross
neglect. In support of its motion, defendant has filed an
affidavit of Kevin Hayner, the owner of defendant Real Pets
Corp. In his affidavit, Mr. Hayner states that after service
of the complaint, he contacted his personal attorney and
understood the attorney would handle the matter. (Hayner Aff.
¶¶ 1, 4.) After Mr. Hayner received notice of the
entry of default from the clerk's office, he learned the
attorney had failed to take any action. Mr. Hayner then
referred the matter to defendant Real Pet Corp.'s
insurance company and counsel was retained on April 12, 2018.
argues that defendant Real Pets Corp. has failed to offer any
evidence as to why his attorney did not respond to the
complaint and, therefore, cannot meet its burden to show a
good excuse for the failure to respond. For purposes of this
motion, plaintiff concedes that a meritorious defense exists.
L'Hommedieu v. Ram Aircraft. L.P., the Business
and Consumer Court granted a defendant's motion to set
aside an entry of default when it found that the
defendant's failure to file an answer was "likely
caused by inadvertence rather than an intentional disregard
for the court process." No. BCD-CV-13-33, 2013 Me. Bus.
& Consumer LEXIS 20, at *4 (Sept. 20, 2013). While a
"mere mistake by a party's attorney does not rise to
the level of excusable neglect," Maroon Flooring.
Inc. v. Austin, 2007 ME 75, ¶ 9, 927 A.2d 1182, the
"good cause" standard is less stringent than the
"excusable neglect" standard required to set aside
a default judgment pursuant to Rule 60(b). Thomas,
653 A.2d at 420 n.2. Further, where the neglect results from
the behavior of an attorney, the court may consider the
client's lack of culpability when deciding whether to set
aside an entry of default. See Mockus v. Melanson,
615 A.2d 245, 247 (Me. 1992).
receipt of the complaint, Mr. Hayner of defendant Real Pets
Corp. notified his personal attorney regarding the action.
Mr. Hayner's understanding that his personal attorney
would take all necessary steps to protect its interests
appears reasonable. Defendant Real Pets Corp. promptly
notified its insurer after receiving notice of the entry of
default and an attorney was retained ten days after the entry
of default. There is no indication that defendant Real Pets
Corp. was acting with disregard for the judicial process.
aside the entry of default will not result in any
"substantial prejudice" to plaintiff and, in fact,
plaintiff does not address this issue. See Thomas,
653 A.2d at 420. The delay in this case is insignificant.
Defendant Real Pet Corp.'s answer was filed twenty-nine
days late and fifteen days after the entry of default. There
are multiple defendants in this case involving allegations of
breach of implied warranty, strict liability, and negligence.
A pending motion to dismiss filed by another defendant must
be decided. There is no dispute that a meritorious defense
light of the foregoing, good cause exists to set aside the
entry of default and to address the case on its merits. See
L'Hommedieu, 2013 Me. Bus. & Consumer LEXIS
20, at **3-5; Thomas, 653 A.2d at 420; Westcott
v. Allstate,397 A.2d 156, 163 (Me. 1979) ("It is
the policy of the law to favor, wherever possible, a ...