United States District Court, D. Maryland
AARON M. KIHN, Plaintiff,
CAROLYN N. VAVALA Defendant.
XINIS UNITED STATES DISTRICT JUDGE.
before the Court are pro se Defendant Carolyn N. Vavala's
Motion to Vacate Order of Default and Plaintiff Aaron M.
Kihn's Motion to Strike Defendant's Filing Entitled
“Answer.” ECF Nos. 9, 11. For the following
reasons, Defendant's Motion to Vacate is GRANTED and
Plaintiff's Motion to Strike is GRANTED but with leave
for Defendant to file an amended Answer that conforms with
the federal and local rules of civil procedure.
years, Jessica S. Kihn and Anthony Del Grosso have been
engaged in custody disputes concerning their young daughter.
ECF No. 1 ¶ 1. Jessica Kihn is married to Plaintiff
Aaron M. Kihn, a Staff Sergeant (“SSgt.”) in the
United States Air Force stationed at Joint Base Andrews in
Prince George's County, Maryland. Id. Defendant
Carolyn M. Vavala is Anthony Del Grosso's mother.
the custody dispute was pending in the Circuit Court for
Charles County, Vavala emailed SSgt. Kihn's United States
Air Force superior officer accusing SSgt. Kihn of
inappropriate behavior with her granddaughter. Id.
¶ 2. Vavala's email also alleged Jessica Kihn faced
“5 contempt charges.” Id. SSgt. Kihn
avers the contents of Vavala's email were false.
email was circulated through SSgt. Kihn's military chain
of command, and the Air Force Office of Special
Investigations (Criminal) and Joint Base Andrews Family
Advocacy Center launched an investigation as a result. The
investigation delayed SSgt. Kihn's scheduled transfer.
Id. Although the investigation concluded SSgt. Kihn
committed no wrongdoing, Vavala's claims nonetheless did
damage. According to SSgt. Kihn, he has suffered personal
anguish, public humiliation, harm to character and
reputation, a loss of standing in the United States Air Force
and community, and diminished promotion opportunities which
have reduced his prospective earning capacity. Id.
¶¶ 23, 24, 29.
August 23, 2018, SSgt. Kihn brought this action against
Vavala for defamation and invasion of privacy-false light.
Id. ¶¶ 8, 9, 24, 29. A summons was issued
on August 27, 2018 (ECF No. 5), and Vavala was served
September 26, 2018. ECF No. 6. Vavala's response to SSgt.
Kihn's Complaint was due on October 17, 2018.
Id. After Vavala failed to respond timely,
Clerk of the Court entered default pursuant to Rule 55(a) of
the Federal Rules of Civil Procedure on February 7, 2019. ECF
No. 7. On March 6, 2019, Vavala moved to vacate the
Clerk's entry of default, attaching an Answer as an
exhibit to her motion. ECF Nos. 9, 9-2. SSgt. Kihn then moved
to strike Vavala's Answer on March 27, 2019. ECF No. 11.
Motion to Vacate Entry of Default
Standard of Review
may “set aside an entry of default for good
cause.” Fed.R.Civ.P. 55(c). The United States Court of
Appeals for the Fourth Circuit has announced a “strong
policy that cases be decided on their merits.”
United States v. Shaffer Equip. Co., 11 F.3d 450,
453 (4th Cir. 1993). Therefore, a motion to vacate default
must be “liberally construed in order to provide relief
from the onerous consequences of defaults and default
judgments.” Tolson v. Hodge, 411 F.2d 123, 130
(4th Cir. 1969). “Any doubts about whether relief
should be granted should be resolved in favor of setting
aside the default so that the case may be heard on the
merits.” Id. The moving party “should
proffer evidence that would permit a finding for the
defaulting party.” Russell v. Krowne, No. DKC
08-2468, 2013 WL 66620, at *2 (D. Md. Jan. 3, 2013).
determining whether to set aside an entry of default, the
Court considers if the movant has a meritorious defense,
acted with reasonable promptness, and bears personal
responsibility for the entry of default. See Payne ex
rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th
Cir. 2006). The Court also must consider if the delay of
proceedings caused any prejudice to the non-moving party, any
history of dilatory action, and the availability of lesser
sanctions short of default judgment. See id.;
see also Colleton Preparatory Acad., Inc. v. Hoover
Universal, Inc., 616 F.3d 413, 417 (4th Cir.
2010). With these factors in mind, the Court turns
to Vavala's motion.
Kihn does not allege Vavala had a history of dilatory action
or that this delay prejudiced him. Accordingly, the Court
focuses on whether Vavala has stated a meritorious defense
and her professed reasons for the delay. See
Russell, 2013 WL 66620, at *3 (stating that the party
not in default must offer specific ways it was harmed to
meritorious defense must be more than a conclusory statement
of fact and must “permit a finding for the defaulting
party.” See Russell, 2013 WL 66620, at *3;
see also Wainright's Vacations, LLC v. Pan Am.
Airways Corp., 130 F.Supp.2d 712, 718 (D. Md. 2001)
(“Although conclusive proof is not required, neither is
a ‘bare allegation of a meritorious defense'