United States District Court, D. New Hampshire
McCafferty, United States District Judge
case now consists of one federal claim against the Manchester
Police Department, brought through the vehicle of 42 U.S.C.
§ 1983, and state law claims against all five
defendants. On February 22, 2017, Sanjeev Lath moved for
default judgment against Gerard Dufresne. See doc. no. 50. On
March 21, 2017, default was entered against Dufresne, in
accordance with Rule 55(a) of the Federal Rules of Civil
Procedure (“Federal Rules”) and Local Rule 55.1.
See doc. no. 73. On July 25, 2017, Dufresne filed a pleading
captioned “Motion to Dismiss Defendant Gerard Dufresne
of Default, ” document no. 116. Lath objects. For the
reasons that follow, Dufresne's default is set aside, and
Lath's motion for default judgment is denied.
noted, the default against Dufresne was entered pursuant to
Rule 55(a). The Federal Rules also provide that “[t]he
court may set aside an entry of default for good
cause.” Fed.R.Civ.P. 55(c). Rule 55(c), in turn,
“as an ‘express[ion of] the traditional inherent
equity power of the federal courts, ' permits the
consideration of a panoply of ‘relevant equitable
factors.'” KPS & Assocs., Inc. v. Designs
by FMC, Inc., 318 F.3d 1, 12 (1st Cir. 2003) (quoting
10A Wright, Miller & Kane, Federal Practice and
Procedure: Civil 3d § 2692 (1998); Enron Oil Corp.
v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)). The KPS
court went on to describe the competing values and policies
that are served by the procedural mechanism of default:
On the one hand, it “provide[s] a useful remedy when a
litigant is confronted by an obstructionist adversary,
” and “play[s] a constructive role in maintaining
the orderly and efficient administration of justice.”
Enron, 10 F.3d at 96. It furnishes an invaluable incentive
for parties to comply with court orders and rules of
procedure. See Fed.R.Civ.P. 37(b)(2)(C). It encourages the
expeditious resolution of litigation and promotes finality.
See Wright, Miller & Kane, supra, § 2693. On the
other hand, countervailing considerations include the goals
of “resol[ving] cases on the merits, ” Key
Bank of Me. v. Tablecloth Textile Co., 74 F.3d 349, 356
(1st Cir. 1996), and avoiding “harsh or unfair
result[s].” Enron, 10 F.3d at 96.
318 F.3d at 12-13. The KPS court also identified the
following factors that a court may consider when determining
whether to set aside a default:
(1) whether the default was willful; (2) whether setting it
aside would prejudice the adversary; (3) whether a
meritorious defense is presented; (4) the nature of the
defendant's explanation for the default; (5) the good
faith of the parties; (6) the amount of money involved; (7)
the timing of the motion [to set aside entry of default].
Id. at 12 (quoting McKinnon v. Kwong Wah
Rest., 83 F.3d 498, 503 (1st Cir. 1996)).
the circumstances of this case, Dufresne's default should
be set aside. Dufresne is appearing pro se. He is a defendant
in this case and in 16-cv-463-LM, both of which were filed by
Lath, and Dufresne has actively participated in the
litigation of 16-cv-463-LM. Lath himself has on multiple
occasions conflated this case with 16-cv-463-LM by filing
documents in one case that actually pertain to the other one.
Thus, Dufresne's failure to answer Lath's complaint
in this case is less likely due to willful conduct and more
likely the result of a litigation landscape that has been
complicated by Lath's carelessness.
case is still in the early stages of litigation, and the only
“prejudice” to Lath that will result from setting
aside Dufresne's default will be the loss of what amounts
to a windfall resulting from a pro se defendant's
apparent confusion in the face of a case that is being
prosecuted in a way that appears to foster confusion.
Moreover, while default was entered against Dufresne for
failing to abide by the Federal Rules, he has not violated
any court order, and there is nothing in the record that
suggests that he is acting as an “obstructionist
adversary, ” KPS, 318 F.3d at 13. Similarly, the court
can discern no basis for concluding that Dufresne has been
operating in bad faith. In short, the equities of this case
and the court's general preference for resolving cases on
their merits both counsel in favor of setting aside
Dufresne's default is set aside, and document no. 116 is
construed as an answer to Lath's First Amended Complaint,
document no. 24, which is the operative complaint in this
case. That said, the court cautions Dufresne that as this
case moves forward, he should take care to abide by the
applicable rules of procedure, and should not count on the
court's willingness to overlook future procedural
in the interest of clarity, the court notes that Lath has
asserted only two claims in this case against Dufresne: (1) a
claim for unlawful wiretapping, in violation of New Hampshire
Revised Statutes Annotated (“RSA”) 570-A,
asserted in Cause 17; and (2) a claim for civil conspiracy,
asserted in Cause 19. Those are the only claims against which
Dufresne must defend himself. That said, the court observes
that at several points in document no. 116, Dufresne appears
to argue that Lath's claims against him should be
dismissed. He does not, however, make any arguments that are
cognizable under Rule 12(b)(6) of the Federal Rules. Thus,
dismissal of Lath's claims against Dufresne is not
appropriate at this point.
Lath's motion for default judgment, document no. 50, is
denied, and Dufresne's motion to set aside his default,
document no. 116, is granted to the extent that his default
is set aside, but is denied to the extent that he seeks
dismissal of the claims against him. That denial is without
prejudice to Dufresne's filing a proper motion to ...