United States District Court, E.D. Virginia, Richmond Division
NICHOLAS D. TRBOVICH, JR., et al., Plaintiffs,
JOSEPH L. GARCIA and VICKI SHUNKWILER GARCIA, Defendants.
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the MOTION AND ORDER TO
REINSTATE (ECF No. 19) and the MOTION TO VACATE ENTRY OF
DEFAULT AND PERMIT DEFENDANT VICKI SHUNKWILER GARCIA TO
ANSWER (ECF No. 20) filed by the defendant, Vicki Shunkwiler
Garcia, and the responses and reply thereto. For the reasons
set forth below, the MOTION AND ORDER TO REINSTATE (ECF No.
19) and the MOTION TO VACATE ENTRY OF DEFAULT AND PERMIT
DEFENDANT VICKI SHUNKWILER GARCIA TO ANSWER (ECF No. 20) will
Plaintiffs filed their Complaint on May 20, 2016 against Mrs.
Garcia and her husband, Joseph L. Garcia, seeking judgment on
a $125, 000.00 loan that the Plaintiffs made to the
defendants. On May 25, 2016, Mrs. Garcia was served by a
private process server who posted the summons and a copy of
the Complaint on the front door of her residence. Within the
twenty-one (21) day period permitted by Fed.R.Civ.P. 12, Mrs.
Garcia had filed no responsive pleadings. On June 30, 2016,
the Plaintiffs filed their AMENDED MOTION FOR ENTRY OF
DEFAULT (ECFNo. 5) and a Certificate of Service shows that
copies of the Complaint, summonses and the AMENDED MOTION FOR
ENTRY OF DEFAULT were mailed to Mrs. Garcia on that date.
8, 2016, Mrs. Garcia left a voicemail message at the office
of Plaintiffs' counsel and therein advised that she had
received the Amended Motion for Entry of Default and wished
to discuss the matter with Plaintiffs' counsel.
Plaintiffs' counsel returned the telephone call the same
day but was unable to communicate personally with Mrs.
Garcia, instead leaving a voicemail message.
12, 2016, the Clerk entered default against Mrs. Garcia
pursuant to Fed.R.Civ.P. 55(a). On July 15, 2016,
Plaintiffs' counsel communicated by telephone with Erin
Smith, Esquire, who represented that her firm, the Peninsula
Center, had been retained to represent Mrs. Garcia.
Thereafter, counsel for Mrs. Garcia and the Plaintiffs
discussed potential settlement, but no agreement was ever
reached and no repayment was ever made. Accordingly, on
August 12, 2016, the Plaintiffs filed their MOTION FOR ENTRY
OF DEFAULT JUDGMENT AGAINST VICKI SHUNKWILER GARCIA (ECF No.
7) . The same day, Plaintiffs' counsel emailed a copy of
that motion to Ms. Smith. Thereafter, the Court requested
that the Plaintiffs submit a proposed Order awarding judgment
against Mrs. Garcia. That proposed Order was submitted on
August 19, 2016, and, on the same day, a copy of it was
emailed to Ms. Smith. However, there were no pleadings filed in
response to the Motion for Entry of Default Judgment and, on
August 24, 2016, the Court entered the ORDER AWARDING
JUDGMENT AGAINST VICKI SHUNKWILER GARCIA (ECF No. 11). And,
that same day, Plaintiffs' counsel spoke by telephone
with Ms. Smith and advised her that the Court had just
entered default judgment against Mrs. Garcia. During the
conversation, Ms. Smith advised that she would be filing a
motion to set aside the default judgment. Nothing was
thirty-five (35) days later, on September 29, 2016,
Plaintiffs' counsel informed Ms. Smith by email that he
anticipated commencing execution on the judgment soon. There
was no response. Thereafter, in furtherance of the execution
process, counsel for the Plaintiffs' recorded the
judgment against Mrs. Garcia in the Circuit Court for the
County of New Kent, Virginia where she and her husband own
real property. Thereafter, the Circuit Court for the County
of New Kent, Virginia issued a summons to answer
interrogatories and that was duly served upon Mrs. Garcia.
Plaintiffs' counsel scheduled a debtor's examination,
under Virginia procedure, for November 11, 2016. That
examination was to be held before the Commissioner in
Chancery for the Circuit Court of the County of Henrico.
Throughout that time neither the Plaintiffs' counsel nor
the Court received any communication from Mrs. Garcia or her
on October 26, 2016, the motions that are presently before
the Court were filed seeking (1) to have the default judgment
and entry of default set aside, and (2) leave to file an
Answer. Simply put, more than two months after notice that
there was a default judgment on record no action was taken
with the Court and no communication was had with
counsel has now learned that Mrs. Garcia and her husband
intend to sell their home in New Kent County where the
judgment is a matter of record. If the default judgment is
set aside, the recordation of it will be of no effect.
Against these facts, the current motions must be decided.
Plaintiffs note, Mrs. Garcia's motion is not in
compliance with Local Civil Rule 7 (F) (1) because it is not
accompanied by a brief setting forth citations and
authorities upon which the movant relies. The only citation
of authority cited in that brief is Fed.R.Civ.P. 55. That
insufficiency alone would be reason to deny the motions.
However, it is preferable not to predicate a decision of this
sort on a procedural failure.
Garcia's motion is filed putatively under Fed.R.Civ.P. 55
seeking permission to set aside the default. That rule
provides as follows: "The Court may set aside an entry
of default for good cause and it may set aside a final
default judgment under Rule 60 (b) . " Accordingly,
because a final default judgment has been entered, the
analysis here must proceed under Fed.R.Civ.P. 60(b).
(b) articulates the grounds upon which relief may be had from
a final judgment. There are six reasons set out in the rule
that, if shown to exist, permit the exercise of this rather
extraordinary judicial power.
somewhat difficult to discern from the skimpy papers filed by
Mrs. Garcia's counsel exactly what part of Rule 60(b) is
thought to be the predicate for the relief sought. However,
in the response to the Plaintiffs' opposition papers (ECF
No. 24), the argument is made that "Mrs. Garcia's
failure to respond to the Complaint meets the criteria of
both 'mistake' and 'excusable neglect.'"
(ECF No. 24, p. 6) . Excuse is permitted upon a showing of
mistake and excusable neglect under Rule 60(b) (1). Here, it
is suggested that the mistake was that Mrs. Garcia was not a
party to the underlying borrowing transaction that is at
issue in the suit and that the Plaintiffs "mistakenly
included Ms. Garcia as a Defendant in this action." Also
asserted as grounds for mistake was "Defendant's
belief she did not need to respond to the Complaint."
The same conduct also is said to ...