United States District Court, D. Delaware
DEBORAH J. MAYHAN, Plaintiff,
SUNOCO, INC., Defendants.
Deborah J. Mayhan, New Castle, Delaware. Pro Se Plaintiff.
M. Klayman, Esquire, Cozen O'Connor, Wilmington,
Delaware; Daniel V. Johns, Esquire, Cozen O'Connor,
Philadelphia, Pennsylvania; and Abigail M. Green, Esquire,
Cozen O'Connor, Pittsburgh, Pennsylvania. Counsel for
ANDREWS, UNITED DISTRICT JUDGE.
Deborah J. Mayhan filed this employment discrimination action
on March 6, 2018, against Sunoco, Inc. (D.I. 2). She
appears pro se and has been granted leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.
(D.I. 4). On April 23, 2019, an entry of default was entered
against Defendant. (D.I. 25). Presently before the Court is
Defendant's motion to set aside default and opposition to
Plaintiffs motion for default judgment. (D.I. 31). Plaintiff
opposes. (D.I. 37). The matter has been fully briefed.
timely filed this employment discrimination action on March
6, 2018. (D.I. 2). The Complaint was screened and a service
order entered on May 31, 2018. (D.I. 5). On June 15, 2018,
the United States Marshal Service mailed the complaint, order
and waiver of service documents to Defendant at 520 JFK
Memorial Highway, Newark, Delaware 19702, the location where
Plaintiff had been employed. (D.I. 13). When Defendant failed
to timely return the waiver form, a service packet was
forwarded to the USMS to attempt personal service upon
Defendant. (D.I. 13 and Oct. 1, 2018 docket entry). The
return of service states that the USMS personally served John
(manager) of Sunoco at 520 JFK Memorial Highway, Newark,
Delaware 19702 on October 5, 2018. (D.I. 18). When Defendant
did not timely file an answer, Plaintiff moved for entry of
default (D.I. 23), and it was entered by the Clerk on April
23, 2019 (D.I. 25). Next, Plaintiff requested default
judgment and a hearing was scheduled for August 19, 2019.
(D.I. 26, 28). The Court ordered the Clerk of Court to mail
notices of the hearing to three additional addresses located
for Defendant. (D.I. 28). Defendant now moves to vacate the
entry of default and opposes the request for default
judgment. (D.I. 31).
moves to set aside the entry of default on the basis that
there exists good cause to do so. Having reviewed the instant
motion and opposition thereto, the Court concludes that the
factors enumerated in United States v. $55, 518.05 in
U.S. Currency, 728 F.2d 192 (3d Cir. 1984), support
setting aside the entry of default. The decision to vacate
the entry of default is left to the discretion of the
district court. Id. In making this determination,
the Court considers: (1) whether Plaintiff will be prejudiced
if the Court sets aside the default; (2) whether Defendant
has a meritorious defense; and (3) whether the default was a
result of Defendant's culpable conduct. Id.,
Defaults are generally disfavored, and therefore, in close
cases, courts must construe doubts in favor of resolving the
cases on the merits. Zawadski De Bueno v. Bueno
Castro, 822 F.2d 416, 420 (3d Cir. 1987).
instant case, the Court concludes that the factors weigh in
favor of vacating the entry of default. First, even assuming
arguendo there was proper service of process, the Court
cannot say that Plaintiff will be prejudiced by a delay in a
responsive pleading. Indeed, when Plaintiff had taken no
action, the Court entered three show cause orders why this
case should not be dismissed for her failure to prosecute.
(See D.I. 16, 19, 22). Thus, the first factor weighs against
the entry of default.
Defendants have apprised the Court of a meritorious defense
(e.g., Plaintiff was treated fairly at all times and
provided with the requested accommodations) that would
provide a complete defense if proved at trial. See
$55, 518.05 728 F.2d at 195.
the Court cannot say that the default was the result of
Defendant's culpable conduct. "In this context,
culpable conduct means actions taken willfully or in bad
faith." Gross v. Stereo Component Sys., Inc.,
700 F.2d 120, 123-24 (3d Cir. 1983). Notably, when Defendant
received notice of the hearing on default judgment, it
investigated the matter and, upon learning of this action,
took prompt action. The Court finds that under the
circumstances there is insufficient evidence on the record to
find willfulness or bad faith. Therefore, the Court concludes
that entry of default is not warranted because Plaintiff has
not established prejudice, Defendants has a meritorious
defense, and there is insufficient evidence of culpable
conduct by Defendant. The entry of default will be vacated.
the Court addresses the issue of service. Plaintiff complied
with the Court's service order. Of note is that Plaintiff
proceeds pro se, has been granted leave to proceed
in forma pauperis, and relies upon the USMS to
effectuate service. Defendant contends that it was not
properly served because the assets of Plaintiffs former place
of employment were sold to 7-Eleven, the transaction having
taken place on January 23, 2018. From the filings it appears
that the location continues to operate as a "Sunoco
branded fuel outlet" which seems to indicate that Sunoco
fuel is sold at the location and, to the casual observer, the
property is a Sunoco business. (See D.I. 32-2 at 3).
USMS first mailed the service packet to the location where
Plaintiff had been employed, and Defendant did not return the
waiver of service. The USMS then personally delivered the
service packet to the location of Plaintiffs former
employment, where it was accepted by a person who seems to
have identified himself as the manager. (D.I. 18). Defendant
indicates that, at the time of personal service, 7-Eleven
employed a sales associate named Jonathan, but it was unable
to locate a copy of the summons and complaint. (D.I. 32-3 at
¶ 5) The Court relies upon the USMS return of service.
Defendant provided no explanation why service was accepted by
"manager John" if he was not authorized to do so
nor any explanation why the service documents were not kept
other than to state that they could not be located.
to Fed.R.Civ.P. 4(d), Defendant was required to waive
service. It did not. Rule 4(d) affirmatively imposes the
"duty to avoid unnecessary expenses of serving the
summons" upon the defendant. Id. The USMS then
sought to personally serve Defendant and, considering the
foregoing, it appeared Defendant had been served. In light of