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Rivers v. Younger

United States District Court, D. New Mexico

March 2, 2017

JOSEPH SAMSON RIVERS, Plaintiff,
v.
EMILY YOUNGER and KRQE-TV NEWS 13, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Defendants' Motion to Set Aside Entry of Judgment (Motion to Set Aside), [1] filed November 15, 2016. (Doc. 17). Pro se Plaintiff responded to the Motion to Set Aside by filing (1) a Motion to Strike the Defendants [sic] Motion to Set Aside Default (Motion to Strike Motion to Set Aside) on November 22, 2016, (2) Plaintiffs [sic] Motion for a Default Judgment (Motion for Default Judgment) on November 22, 2016, and (3) a Motion to Strike the Defendants [sic] Four Month Late Response to the Plaintiffs [sic] Pleading (Motion to Strike Answer) on December 8, 2016. (Docs. 25, 26, and 20). On December 23, 2016, Defendants replied to the Motion to Strike Answer arguing that the Court should deny that motion and impose a sanction of an award of attorney's fees against Plaintiff for filing a frivolous motion. (Doc. 24).

         A. Background

         Plaintiff filed this federal lawsuit on June 10, 2016. (Doc. 1). Plaintiff is suing Emily Younger, a news anchor at KRQE-TV News 13, and KRQE-TV News 13 for libel and slander and for depriving him of his Sixth Amendment right to counsel in a Drug Enforcement Administration asset forfeiture case. These claims are based on a news story Defendant Younger broadcast which allegedly represented that Plaintiff was jailed on drug charges three days prior to the broadcast. Plaintiff contends that this representation was untruthful.

         Also, on June 10, 2016, summonses were issued for Defendants and Plaintiff mailed by priority express mail copies of the summons and complaint to Defendants at Defendant KRQE-TV News 13's address. The copies of the summons and complaint were delivered to the Defendant KRQE-TV News 13 address on June 24, 2016. (Doc. 25) at 11 and 13. Plaintiff then filed proofs of service on June 27, 2016. (Docs. 6 and 7). According to the purported service date, Defendants had until July 14, 2016, to answer the complaint. Id.

         When Defendants did not answer the complaint by July 14, 2016, Plaintiff filed a Request for Clerk's Entry of Default Judgment on October 11, 2016. (Doc. 11). Defendants' attorney, Martin Esquivel, subsequently spoke with Plaintiff on November 8, 2016, to explain that Plaintiff's service of process did not comply with court rules. (Doc. 24) at 10, ¶ 3. According to Esquivel, Plaintiff agreed that it would be “okay” for Esquivel to ask Defendants if Esquivel could accept service of process on their behalf. Id. Two days later, Esquivel emailed Plaintiff stating that Defendants authorized him to accept service on their behalf. Id. at 9. In addition, Esquivel stated that he would file a response to the complaint within 20 days. Id. Consequently, on November 11, 2016, Defendants filed a Notice of Acceptance of Service which noted acceptance of service on November 8, 2016, and a deadline of November 28, 2016, to file an answer to the complaint. (Doc. 14).

         Despite the apparent agreement and the Notice of Acceptance of Service, the Clerk entered defaults on November 15, 2016. (Docs. 15 and 16). That same day, Esquivel notified Plaintiff via email that per their agreement he filed a Notice of Acceptance of Service on November 11, 2016. (Doc. 24) at 12. Esquivel also noted that he called the Clerk regarding the entry of defaults to explain that the parties had an agreement regarding the service of process. Id. Esquivel further indicated that he needed to file a motion to set aside the entry of defaults based the parties' agreement. Id. Finally, Esquivel informed Plaintiff that he would send Plaintiff a copy of the motion to set aside the entry of defaults so Plaintiff can either concur with the motion or oppose it. Id. Not having received a response from Plaintiff, Defendants filed the Motion to Set Aside late in the afternoon of November 15, 2016. (Doc. 17).

         Plaintiff later responded to Esquivel's November 15, 2016, email on November 21, 2016, stating that they never had an agreement. (Doc. 24) at 12. The next day, Plaintiff filed his Motion to Strike Motion to Set Aside and the Motion for Default Judgment. (Docs. 25 and 26).

         Defendants, in fact, filed an answer on November 28, 2016, as they said they would in the Notice of Acceptance of Service. (Doc. 18). Plaintiff then filed his Motion to Strike Answer on December 8, 2016. (Doc. 20).

         On December 13, 2016, Esquivel wrote a letter to Plaintiff to give him an opportunity to withdraw the Motion to Strike Motion to Set Aside, the Motion for Default Judgment, and the Motion to Strike Answer. (Doc. 24) at 7. Esquivel explained in the letter that service on Defendants was improper and that Defendants could have filed a motion to dismiss for improper service, but chose instead to agree to accept service. Id. at 7-8. Esquivel also noted that Plaintiff “reneged” on the acceptance of service agreement in his November 21, 2016, email. Id. at 8. Lastly, Esquivel stated that if Plaintiff does not withdraw the above motions by December 15, 2016, he will seek sanctions against Plaintiff in the form of an award of attorney's fees. Id. Plaintiff did not withdraw his motions, so Defendants filed their response to the Motion to Strike Answer, which seeks an award of attorney's fees as a sanction against Plaintiff.

         B. Discussion

         1. Whether to Set Aside the Defaults

         Under Fed.R.Civ.P. 55(c), a court may set aside an entry of default for good cause. The principal factors in determining whether a defendant has met the good cause standard include: (1) whether the default was the result of culpable conduct of the defendant; (2) whether the plaintiff would be prejudiced by setting aside the default; and (3) whether the defendant presents a meritorious defense. Pinson v. Equifax Credit Info. Services, Inc., 316 F.App'x 744, 750 (10th Cir. 2009) (setting forth factors for determining good cause under Rule 55(c)). However, “even where there is a meritorious defense and no prejudice to the adversary, ‘[w]illful failure alone may constitute sufficient cause for the court to deny th[e] motion.'” Guttman v. Silverberg, 167 F.App'x 1, 4 (10th Cir. 2005) (quoting Dierschke v. O'Cheskey (In re Dierschke, 975 F.2d 181, 184-5 (5th Cir.1992)). Moreover, “[a] court need not consider all of the factors, and may consider other factors as well.” Id. “The defaulting party has the burden of proving that the default … should be set aside.” Nikwei v. Ross Sch. of Aviation, Inc., 822 F.2d 939, 941 (10th Cir. 1987).

         The good cause required for setting aside an entry of default under Rule 55(c) “poses a lesser standard for the defaulting party than the excusable neglect which must be shown for relief from judgment under Fed.R.Civ.P. 60(b).” Dennis Garberg & Associates., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 775 n.6 (10th Cir. 1997). This lesser standard reflects the Court's preference to dispose of cases on their merits and not through default. Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970) (“The preferred disposition of any case is upon its merits and not by default judgment.”). Finally, “[s]etting aside a default entry … is addressed to the sound discretion of the trial court….” Nikwei, 822 F.2d at 941.

         In this case, Defendants have presented evidence that the defaults were not the result of culpable conduct by Defendants. First, it appears that Plaintiff did not properly serve process on Defendants by simply mailing copies of the summons and complaint to Defendant KRQE-TV News 13's address. See Fed. R. Civ. P. 4(e) (service of process on an individual) and 4(h) (service of process on a corporation). Second, notwithstanding possible issues with service of process, Defendants were willing to have Esquivel accept service on their behalf instead of filing a motion to dismiss based on improper service of process. Third, pursuant to what Defendants believed was an agreement with Plaintiff, Defendants filed ...


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