United States District Court, D. Maine
ORDER ON MOTION FOR DEFAULT JUDGMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court grants a Plaintiff's request for an evidentiary
hearing against a defaulted tortfeasor but imposes certain
notice, evidentiary, and legal requirements on
Plaintiff's counsel in anticipation of the hearing and
demand for damages. The Court also poses some damages
questions and requests counsel's assistance in responding
to those issues.
February 4, 2015, the Defendants removed the present action
commenced by Vladek Filler in Hancock County Superior Court
against Linda Gleason and a number of state of Maine
officials regarding a chain of extraordinary events that led
to Mr. Filler being charged and acquitted of a series of
state criminal charges involving his ex-wife Ligia Arguetta.
Notice of Removal (ECF No. 1). Detailed recitations
of the unusual circumstances leading to Mr. Filler's
filing of his civil action are found in this Court's
Order on Motions to Dismiss (ECF No. 42), 2016 U.S. Dist.
LEXIS 10777, at *6-31 (D. Me. Jan. 27, 2016), and in the
Court of Appeals for the First Circuit's opinion in
Filler v. Kellett, 859 F.3d 148, 150-52 (1st Cir.
2017). On August 28, 2018, Mr. Filler and all of the
Defendants except Linda Gleason filed a Stipulation of
Dismissal with the Court. Stip. of Dismissal (ECF
Filler impleaded Ms. Gleason and on March 17, 2015, he served
a copy of the Amended Complaint on her in South Greenfield,
Missouri. See Notice of Removal Attach. 1,
Compl., Attach. 2, Am. Compl.; Mot. for
Entry of Default Against Linda Gleason Pursuant to F.R. Civ.
P. 55, Attach. 1 Proof of Serv. of Summons and
Compl., Attach. 2, Aff. of Counsel in Support of
Req. for Entry of Default as to Def. Linda Gleason Pursuant
to F.R. Civ. P. 55 (ECF No. 27). Ms. Gleason has never
filed an answer to the Amended Complaint nor apparently has
she otherwise defended the civil action. Accordingly, on May
1, 2015, Mr. Filler moved for entry of default against Ms.
Gleason and on June 1, 2015, the Deputy Clerk of Court duly
entered a default against Ms. Gleason. Order Granting
Mot. for Entry of Default (ECF No. 33).
October 12, 2018, Mr. Filler moved for a default judgment
against Ms. Gleason. Pl.'s Mot. for Default J.
Against Def. Linda Gleason (ECF No. 106) (Pl.'s
Mot.). Mr. Filler's Amended Complaint contains two
counts against Ms. Gleason: Count Five, a malicious
prosecution count, and Count Six, a negligent infliction of
emotional distress count. Am. Compl. ¶¶
96-101. Mr. Filler has requested a hearing and the entry of a
judgment against Ms. Gleason. Pl.'s Mot. at 1-2.
Filler is seeking a default judgment under Federal Rule of
Civil Procedure 55(b)(2). Pl.'s Mot. at 1-2.
Rule 55 differentiates between defaults for a sum certain,
Fed.R.Civ.P. 55(b)(1), and defaults for other types of
relief. Fed.R.Civ.P. 55(b)(2). In his motion, Mr. Filler
acknowledges that he is proceeding under Rule 55(b)(2).
Pl.'s Mot. at 1-2. To enter a default judgment
in cases where there is no sum certain, the First Circuit
generally requires a district court to hold an evidentiary
hearing. KPS & Assocs., Inc. v. Designs by FMC,
Inc., 318 F.3d 1, 18-19 (1st Cir. 2003). Although the
nature of proof of damages rests with Mr. Filler's
counsel, the Court reminds his counsel that the rules of
evidence will apply and hearsay will not be admitted, even
date, time, and place for the evidentiary hearing has been
scheduled, the Court ORDERS Mr. Filler to provide advance
notice of the date, time, and place of the evidentiary
hearing to Ms. Gleason to allow her, if she wishes to do so,
to appear and contest Mr. Filler's damages claims. The
Court will require that Mr. Filler's counsel present
proof of such notice.
Court also anticipates that Mr. Filler will satisfy the First
Circuit's requirement of demonstrating whether or not the
defaulting party “has appeared for Rule 55 purposes . .
. .” Key Bank of Me. v. Tablecloth Textile Co.
Corp., 74 F.3d 349, 353 (1st Cir. 1996) (quoting
Muniz v. Vidal, 739 F.2d 699, 700 (1st Cir. 1984)
(“[A] defaulting party ‘has appeared' . . .
if it has ‘indicated to the moving party a clear
purpose to defend the suit'”)); see also United
States v. Spring House Assocs., No. 1:15-cv-00057-JAW,
2015 U.S. Dist. LEXIS 107053, at *6 (D. Me. Aug. 14, 2015)
(“Before issuing a default judgment, the Court will
require the United States to demonstrate compliance with
Key Bank”); Katahdin Paper Co. v. U&R
Sys., Inc., 231 F.R.D. 110, 112-13 (D. Me. 2005). There
is no indication in this record that Ms. Gleason has appeared
or otherwise defended the case, but the Court expects counsel
for Mr. Filler to place evidence to that effect on the
addition, the Court will look to counsel for Mr. Filler for
guidance on the implications of the prior settlements on his
claim for damages against Ms. Gleason. In his Amended
Complaint, Mr. Filler alleges that Ms. Gleason with his
ex-wife Ms. Arguetta concocted false allegations of sexual
abuse against him in order to allow Ms. Arguetta to gain
custody of their children with an ultimate plan of having Ms.
Arguetta and their children move into Ms. Gleason's home.
Am. Compl. ¶¶ 617-23. Mr. Filler alleges
that Ms. Gleason set about subjecting him to a malicious
prosecution, including filing a false report about Mr. Filler
to law enforcement, posting false comments on the internet,
accessing Mr. Filler's confidential medical records, and
testifying falsely at Mr. Filler's first criminal trial.
Id. ¶¶ 624-40.
Filler also alleges that on April 25, 2007, the Gouldsboro
Police Department allowed Ms. Gleason to sit with Ms.
Arguetta during a police interview. Id. ¶ 148.
After Gouldsboro Police Department Chief Wycoff left the
room, the video recorder captured Ms. Gleason telling Ms.
Arguetta that “her report of sexual abuse against her
husband was her way of ‘fighting for the
children'”, id. ¶ 149, and Ms.
Gleason, who is a nurse, advised Ms. Arguetta to “cry
stating that ‘it wouldn't seem real' unless
Arguetta cried during the interview.” Id.
¶¶ 150-51. Ms. Arguetta told Ms. Gleason that she
did not feel like crying, but Ms. Gleason “repeatedly
urged her to cry.” Id. ¶ 151. When Chief
Wycoff returned to the interview room, Ms. Arguetta began
crying hysterically. Id. ¶ 153. This interview
led to serious criminal charges against Mr. Filler and the
involvement of District Attorney Kellett and her unfortunate
handling of this and other evidence, leading to Mr.
Filler's indictment, trial, conviction, appeal, retrial,
and ultimate vindication.
these circumstances, where Ms. Gleason had a part in setting
in motion the prosecution of Mr. Filler, but where other
actors, specifically but not limited to Assistant District
Attorney Kellett, had a more significant role in his actual
prosecution, including her failure to turn over a complete
version of the Gouldsboro police videotape to defense
counsel, the Court will look to Mr. Filler's counsel for
an explanation of (1) how Maine tort law on joint and several
liability among other settling Defendants and Ms. Gleason
applies, if it does, to this case, (2) whether the Court
should consider the settlement, (3) if so, how the concepts
of contribution and indemnification apply to this situation,
and (4) if they do, what damages causally flow from Ms.
Gleason's actions as opposed to the actions of other
settling Defendants. Thus, for example, Mr. Filler should be
prepared to inform the Court whether it should calculate a
total damages figure and deduct some portion or the full
amount of the settlement, isolate only those damages directly
attributable to Ms. Gleason's conduct, or ignore the
the Court will look to Mr. Filler's counsel for advice on
how the Court should consider the unique nature of the
theories of action against Ms. Gleason: malicious prosecution
and negligent affliction of emotional distress. For example,
as Ms. Gleason did not have the authority to prosecute Mr.
Filler and Assistant District Attorney Kellett was
disciplined for her unprofessional conduct, the Court will
look to Mr. Filler's counsel for assistance in assessing
Ms. Gleason's role in a state-initiated malicious