Plaintiffs, Clara and Ronnie Offer, filed suit against Golden Sands Club Condominium (“GSSC”) alleging premises liability, negligence, res ipsa loquitur, and loss of consortium, due to the fact that Clara Offer may have acquired Legionnaire’s Disease, a severe form of pneumonia, on GSSC’s premises. This subsequent opinion arose out of a motion to vacate a default judgment prior to its entry.
In September 2016, plaintiff’s attorney was informed that GSSC had retained York Risk Services Group (“YRSG”) to investigate and adjust plaintiffs claim. Despite numerous conversations, when YRSG and plaintiffs did not reach a settlement, plaintiffs filed suit. Plaintiffs had served defendants in January of 2017, and by March of 2017, over 21 days after being served, Defendants had not submitted an answer.
Subsequent to filing their complaint, plaintiff’s attorney reached out to YRSG on multiple occasions to remind them that the answer was due, asking what their plan of action was, and informing him that if he did not soon respond or file and answer, that plaintiffs would be forced to seek a default judgment. On only one occasion to plaintiff’s attorney receive a response. As a result, the Judge directed the Plaintiffs to file a motion for Clerk’s entry of default on March 8, 2017.
On March 15, 2017, the plaintiffs moved for clerk’s entry of default, and on March 29, the clerk entered an order of default. Plaintiffs waited until April 10 to file a motion for default judgment, and on April 21, GSSC’s new attorney filed his appearance and a motion to set aside the entry of default.
The Fourth Circuit has stated:
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.
Payne ex rel. Estate of Calzada v. Break, 439 F.3d 198, 203 (4th Cir. 2006). Moreover, a default entry should be avoided as a matter of public policy, and assuming no prejudice, cases should be decided on the merits. See Colleton Preparatory Acad., Inc. v. Hoover U., Inc., 616 F.3d 413, 417 (4th Cir. 2010).
Plaintiffs tried to claim that GSSC’s original counsel’s failure to respond to emails was clear evidence of a pattern of dilatory conduct. Moreover, they stated that defendants have provided no explanation as to why they failed to respond, giving their consistent delay no excuse. But while the Judge agreed that defendant’s defenses were “skeletal and, at best, conclusory,” he decided to let the case proceed.
In explaining his decision, the Judge stated that upon his discretion, under the Fourth Circuit’s strong policy favoring decisions on the merits, and absent prejudice against the plaintiffs, GSSC’s counsel acted with reasonable promptness under the circumstances in filing the motion to vacate, because it was filed the same day he entered his appearance, three (3) weeks after the order of default was entered, eleven (11) days after the plaintiff filed the motion for default judgment, and four (4) months after service upon defendant.