WILLIAM R. MILLER, Personal Representative of the Estate of Gail Chandler Miller, Plaintiff
JOSEPH A. LOUGHRAN, JR., Defendant.
D. Warren, Justice
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.
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.
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.
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.
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. 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.
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.
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. 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.
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.
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.
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).
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 ...