Joe Hand Promotions, Inc. v. Huynh ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : JOE HAND PROMOTIONS, INC. : v. : Civil Action No. DKC 19-1075 : PHOUNG ANH HUYNH, et al. : MEMORANDUM OPINION AND ORDER The Clerk entered default against Defendants Phoung Anh Huynh and Viet Pearl, LLC d/b/a Viet Pearl Restaurant on June 12, 2019, for want of answer or other defense. (ECF No. 13). Defendants, through counsel, filed a motion to vacate the entry of default and for an additional 21 days to file a response to Plaintiff’s complaint on July 10, 2019. (ECF No. 18). Defendants relate that soon after service, Ms. Huynh sent the suit papers to the Defendants’ insurer. She received word from the insurer that it would not provide a defense on June 12, 2019, and, promptly thereafter, sought counsel. Plaintiff has not filed a response in opposition and the time to do so has now expired. The United States Court of Appeals for the Fourth Circuit stated the following standard for a district court to apply in this situation: As we stated in Payne [ex rel Estate of Calzada v. Brake], 439 F.3d [198 (4th Cir. 2006)] at 204– 05: When deciding whether to set aside an entry of default, a district court should consider whether the moving party has a meritorious defense, whether it acts with reasonable promptness, the personal responsibility of the defaulting party, the prejudice to the party, whether there is a history of dilatory action, and the availability of sanctions less drastic. See Fed.R.Civ.P. 55(c) (providing that “[f]or good cause shown the court may set aside an entry of default”). We have repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits. E.g., Tazco, Inc. v. Director, Office of Workers Compensation Program, U.S. Dep't of Labor, 895 F.2d 949, 950 (4th Cir. 1990) (“The law disfavors default judgments as a general matter.”); Consolidated Masonry & Fireproofing [Inc. v. Wagman Constr. Corp.], 383 F.2d [249 (4th Cir. 1967)] at 251 (“Generally a default should be set aside where the moving party acts with reasonable promptness and alleges a meritorious defense.”). This imperative arises in myriad procedural contexts, but its primacy is never doubted. Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010)(footnote omitted). Here, the balance of factors favors vacating the entry of default. The delay has been minimal, and delay by itself is not prejudice in this context. Colleton Preparatory, 616 F.3d at 418 (citation omitted). Plaintiff has not opposed the motion to vacate the entry of default and Defendants allege a plausible, meritorious 2 defense. In light of the strong preference that defaults be avoided and that claims and defenses be disposed of on their merits, the motion to vacate entry of default will be granted. Accordingly, it is this 14th day of August, 2019, by the United States District Court for the District of Maryland, ORDERED that: 1. The default entered by the clerk (ECF No. 13), BE, and the same hereby IS, VACATED; 2. Defendants’ response to Plaintiff’s complaint is due twenty-one (21) days from the date of this Order; and, 3. The Clerk IS DIRECTED to transmit a copy of this Order to counsel of record. /s/ DEBORAH K. CHASANOW United States District Judge 3