Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-16-418
03-08-2017
ASHLEY SUMMERS, Plaintiff v. WALTER KIDDE PORTABLE, INC., et al., Defendants
STATE OF MAINE
CUMBERLAND, ss ORDER ON MOTIONS
Before the court are (1) defendant Walter Kidde Portable Equipment, Inc.'s motion to dismiss or, in the alternative, to set aside an entry of default and (2) plaintiff Ashley Summers's motion to amend her complaint. For the following reasons, defendant Walter Kidde's motion to dismiss is denied, its motion to set aside the entry of default is granted, and plaintiff's motion to amend her complaint is granted.
FACTS
Plaintiff filed a complaint on October 28, 2016 and an amended complaint on November 10, 2016. In the amended complaint, plaintiff alleges that defendants manufactured defective smoke alarms, which contributed to the death of plaintiff's husband as a result of a fire at an apartment building in Portland. (Pl.'s Am. Compl. ¶¶ 1-47.) Plaintiff has brought claims of: count I, wrongful death, strict liability; count II, wrongful death, negligence; count III, breach of implied warranty of merchantability and fitness for a particular purpose; count IV, survival action, conscious pain and suffering of decedent; and count V, wrongful death, punitive damages, strict liability.
The amended complaint named as defendants "Walter Kidde Portable, Inc." and "Schneider Electric, formerly Invensys Controls." On November 15, 2016, the amended complaint was served on CT Corporation Systems (CT), defendant Walter Kidde's registered agent. (Hickman Aff. ¶¶ 3-4.) Although CT determined that it does not serve as a registered agent for "Walter Kidde Portable, Inc.," it failed to send a notice to plaintiff's counsel advising him that service was rejected, in violation of CT's procedure. (Id. ¶¶ 6-7.) CT did not forward service to defendant Walter Kidde or its parent company. (Id. ¶ 8.)
The amended complaint also was served on CT as registered agent for defendant Invensys Controls. (Corrected Hallett Aff. ¶ 1.) Neither defendant filed an answer. Plaintiff filed motions for an entry of default against both defendants on December 14, 2016, and corrected motions as to both defendants on December 16, 2016. The clerk entered default against both defendants on December 16, 2016. On December 19, 2016, defendant Walter Kidde received plaintiff's corrected motion for an entry of default and the court's scheduling order. (Valentine Aff. ¶ 5.)
On December 22, 2016, defendant Walter Kidde filed a motion to dismiss or, in the alternative, to set aside the entry of default and for leave to file a responsive pleading. Plaintiff filed a motion to amend her complaint on December 29, 2016. Defendants have not opposed plaintiff's motion. Plaintiff opposed defendant Walter Kidde's motion on January 11, 2017. Defendant Walter Kidde filed a reply on January 18, 2017.
DISCUSSION
1. Motion to Dismiss
In cases where the court has dismissed a complaint for insufficient service of process, the plaintiff had failed to follow the proper procedure for effecting service. See, e.g., Brown v. Thaler, 2005 ME 75, ¶ 6, 880 A.2d 1113; Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994). In contrast, plaintiff properly served the summons and complaint on defendant Walter Kidde's registered agent. See M.R. Civ. P. 4(d)(1). Plaintiff's mistake in misnaming defendant Walter Kidde "is not fatal to the complaint and does not require dismissal." Jackson v. Borkowski, 627 A.2d 1010, 1014 (Me. 1993); see also Clark v. Me. Dep't of Corr., 463 A.2d 762, 766 (Me. 1983) ("Because this is a case involving the misnaming of the party defendant rather than joining the wrong party defendant, we do not think that dismissal of the complaint is required."). As a result, defendant Walter Kidde is not entitled to a dismissal.
2. Motion to Set Aside Entry of Default
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." M.R. Civ. P. 55(a). The court may set aside an entry of default for good cause. M.R. Civ. P. 55(c). "Good cause requires a good excuse for untimeliness and a meritorious defense." Estate of Gordan, 2004 ME 23, ¶ 19, 842 A.2d 1270. The "good cause" standard for setting aside an entry of default is less stringent than the "excusable neglect" standard for setting aside a default judgment. Hamby v. Thomas Realty Assocs., 617 A.2d 562, 564 (Me. 1992).
a. Good Excuse
In L'Hommedieu v. Ram Aircraft, L.P., the court set aside an entry of default where the defendant's failure to file an answer was the result of a "breakdown" in defendant's parent company's procedure for managing complaints. No. BCD-CV-13-33, 2013 Me. Super. LEXIS 228, at *5 (Sept. 20, 2013). The fact that defendant had an established procedure for handling complaints, and that it responded promptly after learning of the default, demonstrated that defendant's untimeliness was "likely caused by inadvertence rather than an intentional disregard for the court process." Id. Similarly, defendant Walter Kidde's registered agent and parent company have an established procedure for handling complaints, and defendant Walter Kidde filed its motion to set aside the entry of default three days after receiving plaintiff's corrected motion. (See Hickman Aff. ¶¶ 5, 7; Valentine Aff. ¶¶ 4-5.)
Plaintiff cites several Law Court cases that appear to support her position that an agent's negligence does not qualify as a good excuse. See Hamby, 617 A.2d at 564 ("Thomas Realty's assertion that due to the negligence of its agent the general partners never received the complaint does not rise to the level of good cause."); Levine v. KeyBank Nat'l Ass'n, 2004 ME 131, ¶ 18, 861 A.2d 678 (summons lost in defendant's fax and internal mail system). In those cases, however, the moving party offered no reasonable explanation for the agent's negligence. See Hamby, 617 A.2d at 563 (stating only that agent was properly served); Levine, 2004 ME 131, ¶ 21, 861 A.2d 678 ("KeyBank offers no reasonable explanation for the lost fax, the lost internal mail, or any other failures of the judgment processing system.").
Although CT was negligent in failing to send a rejection letter to plaintiff's counsel, the inadvertent misnaming of defendant Walter Kidde contributed to the "breakdown" in effecting proper service. Further, in deciding motions to set aside an entry of default, the court must be mindful of the "strong preference in our law for deciding cases on the merits." Thomas v. Thompson, 653 A.2d 417, 420 (Me. 1995). Defendant Walter Kidde has demonstrated a good excuse for its untimeliness.
b. Meritorious Defense
Defendant Walter Kidde argues: (1) defendant Walter Kidde had no knowledge its products were in the building and the smoke alarms in the apartment building may not have been manufactured by defendant Walter Kidde; (2) ionization smoke alarms, the type allegedly used in the apartment building, comply with the performance standard mandated by the National Fire Protection Association; and (3) no proximate cause exists because the smoke alarms had been disabled. (Def.'s Reply 3-4.) If true, these arguments represent meritorious defenses to plaintiff's claim that defendant Walter Kidde manufactured defective alarms, which contributed to the death of her husband. See Hamby, 617 A.2d at 564 ("[F]or purposes of the meritorious defense component the moving party's version of the facts and circumstances supporting his defense is deemed to be true.") (citation omitted).
3. Motion to Amend Complaint
After a responsive pleading has been served, a party may amend its pleading only by leave of court, which shall be freely given when justice so requires, or by written consent of the adverse party. M.R. Civ. P. 15(a). "If the moving party is not acting in bad faith or for delay, the motion will be granted in the absence of undue prejudice to the opponent." Holden v. Weinschenk, 1998 ME 185, ¶ 6, 715 A.2d 915 (citation omitted). There is no evidence on this record that plaintiff has acted in bad faith or for delay. The amendment will correct the inadvertent omission of one word in defendant Walter Kidde's name. Further, the amendment will not prejudice defendants because defendant Invensys Controls has not appeared and defendant Walter Kidde has not yet filed an answer.
It is unclear whether defendant Walter Kidde's motion to dismiss or, in the alternative, to set aside the entry of default qualifies as a responsive pleading. See 2 Harvey & Merritt, Maine Civil Practice § 15:2 at 484 (3d, 2016-2017 ed.) ("The 'responsive pleading' referred to in Rule 15(a) does not include a motion to dismiss for failure to state a claim upon which relief can be granted."); (Def.'s Mot. Dismiss/Set Aside Entry of Default 4) (arguing dismissal is warranted for insufficiency of service of process). The result is the same regardless of whether plaintiff is required to seek leave to amend, which she has done, or is allowed to amend her complaint as a matter of course. --------
CONCLUSION
Plaintiff's mistake in misnaming defendant Walter Kidde does not require dismissal of her complaint. Defendant Walter Kidde has provided a good excuse for its untimeliness and a meritorious defense to plaintiff's claims. Plaintiff's amendment of one word in her complaint is not done in bad faith or for delay.
The entry is
Defendant Walter Kidde's Motion to Dismiss is DENIED.Date: March 8, 2017
Defendant Walter Kidde's Motion to Set Aside Entry of Default is GRANTED.
Plaintiff's Motion to Amend Complaint is GRANTED. M.R. Civ. P. 15(a) & (c)(2)-(3).
/s/_________
Nancy Mills
Justice, Superior Court
THOMAS HALLETT ESQ
DAVID WEYRENS ESQ
HALLETT ZERILLO & WHIPPLE
PO BOX 7508
PORTLAND ME 04112
JOHN CAMPBELL ESQ
CAMPBELL & ASSOCIATIES
60 MABEL ST
PORTLAND ME 04103
JAMES CAMBPELL ESQ
CAMBPELL CAMPBELL EDWARDS & CONROY
ONE CONSTITUTION CENTER
THIRD FLOOR
BOSTON MA 02129