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Kihn v. Vavala

United States District Court, D. Maryland

June 14, 2019

AARON M. KIHN, Plaintiff,



         Pending 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.

         I. Background

         For 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. Id.

         While 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.

         The 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.

         On 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, [1] the 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.

         II. Motion to Vacate Entry of Default

         A. Standard of Review

         A court 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).

         In 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.

         B. Discussion

         SSgt. 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 allege prejudice).

         A 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' ...

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