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Miller v. Loughran

Superior Court of Maine, Cumberland

April 25, 2019

WILLIAM R. MILLER, Personal Representative of the Estate of Gail Chandler Miller, Plaintiff
v.
JOSEPH A. LOUGHRAN, JR., Defendant.

          ORDER

          Thomas D. Warren, Justice

         Before the court are (I) an application for entry of default against the plaintiff Estate of Gail Miller on defendant Joseph Loughran's counterclaim, followed up by a motion by Loughran to direct the clerk to enter that default, (2) the Estate's motion to vacate the default (although the default has not been entered), and (3) a motion by the Estate to dismiss Loughran's counterclaim.

         Procedural History

         Loughran filed his answer to the complaint, including a counterclaim against the Estate, on January 18, 2019 and apparently served the answer and counterclaim on the same date. Pursuant lo M.R, Civ.P. 12(a) the Estate was required to serve its reply to the counterclaim on or before February 7, 2019.

         On February 14, 2019 Loughran, because no response to the counterclaim had been received, filed an application for entry of default on the counterclaim and an application for entry of a default judgment in the amount of $ 90, 768.12.

         On February 21, 2019 the Estate filed a motion to vacate the default, apparently assuming that a default had been entered. The motion included various exhibits including an unsigned draft answer to the counterclaim dated January 30, 2019. That draft included the affirmative defense that Loughran owed money to the estate by way of set-off. With the unsigned draft answer were an unsigned certificate of service by mail and an unsigned cover letter to the court, both also dated January 30, 2019.

         Accompanying the motion was an affidavit by Lea Tranchemontagne, legal assistant to counsel for plaintiff, who stated that an answer to the counterclaim had been prepared and dated on January 30, 2019 and placed in a pile for signature and mailing.[1] Tranchemontagne's affidavit states that it is uncertain why the answer was not received by counsel for Loughran or by the court and suggests the possibility of clerical error or that the mail was lost.

         On March 11 counsel for Loughran opposed the motion to vacate and sought an order directing the clerk to enter the default. On March 18 counsel for the Estate filed an opposition to Loughran's March 11 motion and a signed copy of the answer to counterclaim that had previously only been filed as an unsigned attachment on February 21. Thereafter on March 22 counsel for the Estate filed an amended answer to the counterclaim, adding a statute of frauds defense and a defense that Loughran had failed to file a claim against Gail Miller's estate. On the same date counsel for the Estate filed a motion to dismiss the counterclaim based in the statute of frauds.

         Application for Default

         Loughran argues that he was entitled to an entry of default when he filed an application for entry of a default at a time when no response to the counterclaim had been filed. This may be true but the clerk's office is not required and does not have the ability to immediately enter a default the moment an application is filed.[2] Some delay resulted in this case because the case was originally assigned to Justice Walker and is waiting to be assigned to the justice who succeeds to his single justice assignments in Cumberland. Moreover, Loughran was also seeking the entry of a default judgment, and the latter can only be entered by the clerk if the amount sought is for a sum certain or for a sum that can be made certain and upon affidavit of the amount due. In this case the amount sought in the application for a default judgment was greater than the amount stated in the counterclaim, and the court would not accept a conclusory attorney's affidavit as to the amount due.

         Before any default was entered, the Estate had filed its motion to vacate, and the practice of the clerk's office in the Cumberland Superior Court is to refer the file to a judge if there is a response from the allegedly defaulting party. In this case, although the Estate's motion to vacate the default was premature, it has been fully briefed and the court sees no reason to have the default entered and then have the Estate refile its motion.

         Assuming that a default had been entered, the question of whether it should be set aside depends on whether a sufficient excuse for the default has been shown and whether a potentially meritorious defense has been shown. Richter v. Ercolini, 2010 ME 38 ¶ 15, 994 A.2d 404.

         As a general matter the court adheres to the principle that defaults should be set aside where no "gross neglect" was involved in the late filing and where no prejudice has been shown. E.g., Thomas v. Thompson, 653 A.2d 417, 420 (Me. 1995). This is consistent with the strong preference for deciding cases on their merits, see id, and the rule that doubts should be resolved in favor of setting aside a default so that the merits may be heard. 3 C. Harvey, Maine Civil Practice § 55:7 (2011).

         In this case what appears to have been a failure by counsel to mail the Estate's answer to the counterclaim does not arise to the level of gross neglect. Despite the failure in this case, it appears from the Tranchemontagne affidavit that counsel for the Estate had a procedure to meet filing deadlines. In addition, the Estate responded with the motion to vacate within two weeks of its initial deadline and within a week after it received notice that Loughran was seeking a default. Loughran has not identified ...


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