United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
March 18, 2016, Plaintiffs Ernesto Hercules, Jaun Misael
Salguero Mejia, Yoni Alexi Abrego Abrego, Jose Orlando
Hernandez Hercules, Saul Adalberto Hernandez Hercules, Jose
Tito David Rosa Ayala, and Jesus Zepeda (collectively,
"Plaintiffs") filed a Complaint against Defendant
Joseph Ernest alleging that he violated provisions set forth
under the Maryland Wage Payment and Collection Law, the Fair
Labor Standards Act of 1938, and the Maryland Wage and Hour
Law by not paying Plaintiffs the requisite overtime wages.
(ECF No. 1.) On March 21, 2016, Plaintiffs filed an Amended
Complaint adding Jim Martin ("Mr. Martin") as a
Defendant and asserting the same claims. (ECF No. 3.)
August 3, 2016, the Plaintiffs filed Proof of Service on Mr.
Martin. (ECF No. 5.) On February 8, 2017, Plaintiffs filed a
Motion for Clerk's Entry of Default against Mr. Martin
only. (ECF No. 6.) In this Motion, Plaintiffs stated,
"Upon information and belief, Joseph Ernest is
deceased." (Id.) On February 8, 2017, the Clerk
of this Court issued a Clerk's Entry of Default against
Mr. Martin for failure to plead or otherwise defend as
directed in the Summons. (ECF No. 7.) On June 12, 2017, the
Plaintiffs filed a Motion for Entry of Default Judgment. (ECF
No. 8.) The same day, this Court entered an Order of Default
Judgment in favor of the Plaintiffs in the amount of $196,
371.24 plus $10, 701 in attorneys' fees and $630.97 in
costs. (ECF No. 9.) On November 2, 2017, the Plaintiffs filed
a Request to Enroll a Foreign Judgment in the Circuit Court
for Anne Arundel County, Maryland, against both
Defendants. (ECF No. 11-4.) On December 1, 2017, Mr. Ernest
(who is not deceased) filed in this Court the pending Motion
to Vacate Order of Default Judgment. (ECF No. 11.) The
Plaintiffs responded on December 6, 2017. (ECF No. 12.)
Default Judgment Against Mr. Ernest
Rule 55(c) of the Federal Rules of Civil Procedure,
"[t]he court may set aside an entry of default for good
cause, and it may set aside a final default judgment under
Rule 60(b)." Fed.R.Civ.P. 55(c). Rule 60(b) the Federal
Rules of Civil Procedure states, "the court may relieve
a party or its legal representative from a final judgment,
order, or proceeding for . . . mistake, inadvertence,
surprise, or excusable neglect." Fed.R.Civ.P.
60(b). Relief due to a mistake is available for
mistakes made by a party or their counsel. See Point PCS,
LLC v. Sea Haven Realty & Constr., 95 Fed.Appx. 24,
27 (4th Cir. 2004) (citing Augusta Fiberglass Coatings,
Inc. v. Fodor Contracting Corp., 843 F.2d 808 (4th Cir.
1988)); see also Utah ex rel. Div. of Forestry, Fire
& State Lands v. United States, 528 F.3d 712, 722
(10th Cir. 2008) (finding that Rule 60(b) may encompass when
"a patty has made an excusable litigation
mistake"). Relief is also available under Rule 60(b) for
"fraud . . ., misrepresentation, or misconduct by an
opposing party." Fed.R.Civ.P. 60(b)(3).
Plaintiffs concede in their Response that they "do not
believe that there currently is a default against Defendant
Joseph Ernest" as "[a]ny references made to
Defendant Joseph Ernest in the Motion for Default against Jim
Martin was an inadvertent error." (ECF No. 12.)
Notwithstanding Mr. Ernest's allegations of fraud and
misconduct (see ECF No. 11), die Plaintiffs'
ambiguous inclusion of Mr. Ernest in die Motion for Default
constitutes a "mistake" under Rule
60(b)(1). Accordingly, Mr. Ernest's Motion to
Vacate the Default Judgment (ECF No. 11) is GRANTED, and this
Court will set aside the Default Judgment entered against
Failure to Serve Process on Mr. Ernest
the Default Judgment against Mr. Ernest set aside,
Plaintiffs' claims against Mr. Ernest remain pending.
However, the Plaintiffs have failed to prosecute these claims
against Mr. Ernest by not effecting service of process within
90 days of the pleading, as required by Local Rule 103.8(a).
This Court will hereby issue a Show Cause Order providing
Plaintiffs with 14 days to show good cause why this Court
should not dismiss those claims.
reasons set forth above, IT IS HEREBY ORDERED this 26th day
of July, 2018 that:
1. Mr. Ernest's Motion to Vacate the Default Judgment
(ECF No. 11) is GRANTED.
2. The Default Judgment against Mr. Ernest is VACATED;
3. Pursuant to Local Rule 103.8(a), the Plaintiffs must show
cause why the remaining claims against Mr. Ernest should ...