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Romano v. Westgate Resorts, Ltd.

United States District Court, E.D. Pennsylvania

July 18, 2017



          Baylson, J.

         I. Introduction

         Plaintiff Pamela Romano (“Plaintiff”) filed this action against Westgate Resorts, Ltd. (“Defendant”) alleging one count of violation of the Telephone Consumer Protections Act (“TCPA”). (See ECF 1, Complaint, “Compl.” ¶ 1). On April 11, 2017, this Court granted Plaintiff's motion for default judgment against Defendant (ECF 10).

         Before the Court is Defendant's motion to vacate the default, dated April 19, 2017 (ECF 13, Defendant's Motion to Vacate, “Def.'s Mot.”), to which Plaintiff filed an Opposition on May 3, 2017 (ECF 15, Plaintiff's Response to Defendant's Motion to Vacate, “Pl.'s Opp'n”), and Defendant filed a Reply on May 10, 2017 (ECF 16, “Def.'s Reply”).

         For the reasons explained below, Defendant's motion to vacate will be GRANTED.

         II. Factual Background and Procedural History

         Plaintiff alleges that, in May of 2015, Defendant began to contact her by calling her on her cellphone. (Compl. ¶ 2). Plaintiff alleges that while she originally consented to the calls, “during the first phone call from Defendant to Plaintiff's cellular telephone, Plaintiff . . . revoked her consent.” (Compl. ¶¶ 2-3). On July 3, 2015, after a few months of allegedly rocky business dealings, Defendant received a letter from Plaintiff's counsel. (Id. at 3). The letter stated that Defendant had violated the TCPA by contacting Plaintiff approximately twenty-five times after Plaintiff had allegedly revoked her consent in May 2015. (Id.).

         Defendant forwarded this letter to its counsel, Greenspoon Marder Law (“GM”). (Id.). On July 13, 2015, GM responded to Plaintiff's letter, ““den[ying] [Plaintiff's] allegations regarding any artificial, prerecorded messages, ” and stating that it “intends to aggressively defend against any ill-advised lawsuit based upon these allegations should [Plaintiff] proceed with these claims.” GM closed by saying that if Plaintiff's counsel had any additional questions or concerns, he should “not hesitate to contact” GM. (Def.'s Mot, Ex. B, “July 13, 2015 Letter, ” at 9).

         On June 2, 2016-almost a year after this exchange-Plaintiff filed the instant Complaint against Defendant. According to Plaintiff, she served the Complaint with a summons on one Paula Clark (“Clark”), who was a “team member services specialist (Authorized) designated by law to accept service of process on behalf of [Defendant], ” on June 27, 2016. (See ECF 2, Proof of Service).

         On August 3, 2016, Plaintiff filed a request for default against Defendant, pursuant to Federal Rule of Civil Procedure 55(a) (ECF 3). The default was entered based upon the affidavit of Plaintiff's counsel in this case, which stated, in pertinent part,

(1) “Defendant was personally served with a copy of the amended complaint and summons, ” which was attached thereto as Exhibit A;
(2) “[A]n answer to the complaint was due on July 18, 2016[;]” and
(3) Since “Defendant failed to plead or otherwise defend within the time allowed, ” Defendant was in default.

(ECF 3-1, Affidavit of Lynn Bennecoff Ginsburg).

         Seven months later, on March 23, 2017, Plaintiff filed its motion for Default Judgement against Defendant, in which Plaintiff requested a total of $37, 500 in damages, $1, 500 for each of the alleged twenty-five calls in violation of the TCPA. (ECF 4, Plaintiff's Motion for Default Judgment, “Pl.'s Mot., ” at 1). In the motion, Plaintiff's counsel asserted that she “caused a true and correct copy of the foregoing Plaintiff's Motion for Default Judgment. . . to be served by certified regular U.S. Mail on [Defendant] who has not entered an appearance in this case.” (ECF 4-3, Pl.'s Certificate of Service).

         On April 10, 2017, this Court held a hearing, at which Defendant did not appear (ECF 7). The following day, because Defendant “failed to plead or otherwise defend in this action, ” the Court granted Plaintiff's motion for default judgment, and entered final judgment in Plaintiff's favor, rendering Defendant liable to Plaintiff for $37, 500 in damages. (ECF 9).

         Defendant avers that April 10, 2017 was also the first time that Plaintiff and Defendant communicated since July 13, 2015, the date of GM's letter to Plaintiff's counsel. (Def.'s Mot. at 4). Defendant states that Plaintiff's motion-which took eighteen days to be delivered via standard mail-arrived at Defendant's address on April 10, 2017, and that GM only learned of it when one of Defendant's representatives emailed it, along with correspondence with Plaintiff's counsel, on April 11, 2017. (Id.).

         On April 12, 2017, GM attorney Jeffrey Backman (“Backman”) emailed Plaintiff's counsel, informing her that Defendant was only made aware of the lawsuit on April 10, 2017, and that neither GM nor Defendant had heard anything from Plaintiff since 2015. (ECF 13, Ex. E, “GM Email”). Since Defendant and GM were now aware of the motion, Backman continued, they would “be moving to vacate the judgement, ” which, he indicated in a follow up email, was “clearly a mistake.” (Id.).

         On April 19, 2017, Defendant filed the instant motion to vacate, along with its first Notice of Appearance. (ECF 11, Notice of Appearance; Def.'s Mot. at 5). In its motion, Defendant argues that it was never made aware of Plaintiff's Complaint, noting that “neither the manner nor location of service was indicated on the [proof of service] Form.” (Def.'s Mot. at 4). Defendant further argues that if the Complaint was in fact served on Clark, [1] that Clark had failed to follow the established procedure for dealing with legal documents.[2] (Def.'s Mot. at 4).

         In support, Defendant filed the declaration of Anita Robinson, Defendant's employee, in which she stated that upon searching Clark's “drawers, files and e-mails for any documents regarding the Romano lawsuit, ” she found nothing, leading her to conclude that “to the extent [Clark] was actually served . . . [she] did not follow the system that has been put in place to ensure the appropriate personnel at Westgate and/or GM are made aware of the service of lawsuits.” (ECF 13, Ex. C, “Robinson Decl.” at 2).

         Defendant contends that between June 27, 2016, when Plaintiff filed her Complaint, and April 10, 2017, when default was entered against Defendant, “Plaintiff's counsel [n]ever attempt[ed] to notify or contact GM, the law firm know by Plaintiff's counsel to represent Westgate.” (Def.'s Mot. 5). Additionally, Defendant argues, had it or GM been aware of the lawsuit, they would have defended against it. (Id.)

         III. Legal Standard

         Rule 55(c) provides that “for good cause shown the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with Rule 60(b).” Fed.R.Civ.P. 55(c). Rule 60(b) states, in pertinent part: “on motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect[.]” Fed.R.Civ.P. 60(b)(1).

         When deciding whether to vacate a default judgment, courts take into consideration four factors associated with FRCP 55(c): (1) whether lifting the default would prejudice the plaintiff; (2) whether the defendant has a prima facie meritorious defense; (3) whether the defaulting defendant's conduct is excusable or culpable; and (4) the ...

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