United States District Court, W.D. Virginia, Charlottesville Division
K. MOON UNITED STATES DISTRICT JUDGE
the Court is a motion for reconsideration filed by the
remaining defendant, BSI Financial Services, Inc.
(“Defendant”). Defendant seeks relief from a
default judgment, arguing it has meritorious defenses.
Defendant contends the Court clearly erred (or has permitted
a manifest injustice) by denying its motion to set aside a
clerk's entry of default and by granting Plaintiff's
motion for default judgment. The Court will deny
for reconsideration are not a chance to urge arguments that
could have been (but were not) presented before, yet that is
what the motion does. Defendant's attempts to downplay
the motion's nature are unavailing. First, Defendant
casts the motion as merely supplementing its prior arguments
that it had a meritorious defense. But the Court's July
28th opinion explained that Defendant failed to present any
evidence about its purported (and unspecified) defenses,
instead resting on bald assertions about their existence.
Indeed, Defendant argued at the time that it need not even
put forth a meritorious defense. Second, Defendant claims it
lacked sufficient time to mount its defenses. But before the
Court entered default judgment, Defendant had months after it
was effectively served; over seven weeks after it had actual
notice of the suit; and over five weeks after counsel entered
an appearance to create a record of its defenses for
consideration by the Court at the default stage.
Defendant-despite being represented by counsel-did not do so,
nor did it request additional time for that purpose.
factual and procedural history of this case need not be
repeated at length, as it was set forth in the Court's
opinion of July 28, 2016. (Dkt. 37 at 1-3). In that opinion,
the Court rejected Defendant's argument that it was
improperly served. (Dkt. 37 at 6-7). For one, Defendant was
effectively served on February 8, 2016, a point which it
conceded at oral argument. (Id. at 6). Thus, its
answer was due 21 days later, and its failure to respond
warranted entry of default.
relevant to the instant motion, Defendant previously conceded
that it received actual notice of the suit on June 7, 2016,
the same day Plaintiff moved for a default judgment. (Dkt. 37
at 9). Defendant's attorney entered an appearance in the
case on June 20, 2016. (Dkt. 28). Defendant then moved to set
aside the entry of default (and opposed the motion for
default judgment) on July 8, 2016. (Dkt. 33). The Court held
oral argument and subsequently entered an opinion on July 28,
2016 that denied Defendant's motion and granted
Plaintiff's motion. Thus, after Defendant admittedly
received actual notice of the complaint against it, 13 days
passed before it entered an appearance; 31 days passed before
it moved to set aside default; and 51 days passed before the
Court entered default judgment.
the evaluation of whether good cause existed to justify
relief from the entry of default, the Court considered each
of the six factors required under Fourth Circuit precedent.
It found that three of the factors cut against Defendant
(meritorious defense, reasonable promptness, and personal
responsibility), two favored it (history of dilatory action
and availability of alternative sanctions), and one
(prejudice) favored neither party. Defendant now targets the
“meritorious defense” factor, which it hopes to
flip in its favor.
widely-cited passage, the Eastern District of Virginia has
explained that reconsideration is:
appropriate where, for example, the Court has patently
misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or
has made an error not of reasoning but of apprehension. A
further basis for a motion to reconsider would be a
controlling or significant change in the law or facts since
the submission of the issue to the Court. Such problems
rarely arise and the motion to reconsider should be equally
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983). Courts have subsequently
distilled the grounds for reconsideration to (1) an
intervening change in the law, (2) new evidence that was not
previously available, or (3) correction of a clear error of
law or to prevent manifest injustice. Pac. Ins. Co. v.
Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998); LaFleur v. Dollar Tree Stores, Inc., No.
2:12-CV-00363, 2014 WL 2121563, at *1 (E.D. Va. May 20,
2014). Such motions are disfavored and should be granted
“sparingly.” Downie v. Revco Disc. Drug
Ctrs., Inc., No. 3:05-CV-00021, 2006 WL 1171960, at *1
(W.D. Va. May 1, 2006). That is because their “improper
use . . . can waste judicial resources and obstruct the
efficient administration of justice.” United States
v. Duke Energy Corp., 218 F.R.D. 468, 474 (M.D. N.C.
opposition to the motion for reconsideration, Plaintiff
argues that “Defendant raises several new arguments and
defenses that it could have easily raised in its Motion to
Vacate/Opposition to Plaintiff's Motion for Default
Judgment.” (Dkt. 47 at 1). Because the Court agrees, it
will deny the motion on procedural grounds.
Defendant's Arguments Could and Should Have ...