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Washburn v. Wrag Properties, Inc.

United States District Court, D. Utah

April 18, 2019



          Ted Stewart, United States District Judge.

         This matter is before the Court on Defendant's Motion to Dismiss and Plaintiff's Request for Entry of Default. For the reasons discussed below, the Court will deny Defendant's Motion and Plaintiff's Request.

         I. BACKGROUND

         Plaintiff received permission to proceed in forma pauperis on February 6, 2019, and his Complaint was filed the same day. Plaintiff asserts a single cause of action under the Residential Lead-Based Paint Hazard Reduction Act (“RLPHRA”). Relevant here, the RLPHRA requires that a seller or lessor “disclose to the purchaser or lessee the presence of any known lead-based paint, or any known lead-based paint hazards, in such housing and provide to the purchaser or lessee any lead hazard evaluation report available to the seller or lessor.”[1] The RLPHRA provides a private right of action for treble damages for violation of the Act's disclosure requirements.[2] Plaintiff alleges that Defendant violated the disclosure requirements and seeks treble damages totaling $223, 440.

         Plaintiff served Defendant on February 25, 2019, making March 18, 2019, the deadline for filing a responsive pleading.[3] Defendant did not file a responsive pleading by that date. Rather, the following day, March 19, 2019, Defendant filed a Motion to Dismiss and Plaintiff filed his Request for Entry of Default. Defendant has failed to respond to Plaintiff's Request and the time for doing so has expired. Plaintiff opposes Defendant's Motion to Dismiss, arguing that default should be entered.



         Federal Rule of Civil Procedure 55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” As discussed above, Defendant failed to timely plead or otherwise defend. However, the Clerk has not entered default.

         The Court declines to enter default and even if default had been entered, it would be set aside. The Court may set aside a default for good cause.[4] The good cause standard is a liberal one because “[t]he preferred disposition of any case is upon the merits and not by default judgment.”[5] “In deciding whether to set aside an entry of default, courts may consider, among other things, ‘whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented.'”[6]

         Here, there is no evidence that Defendant's failure to timely respond was willful, nor is there evidence that allowing this case to proceed on the merits would prejudice Plaintiff. This is especially true given that Defendant filed a responsive pleading just one day late. Finally, Defendant's Motion to Dismiss reflects that there may be a meritorious defense to be presented. Therefore, the Court will not enter default at this time.


         In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiffs as the nonmoving party.[7] Plaintiffs must provide “enough facts to state a claim to relief that is plausible on its face, ”[8] which requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”[9] “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[10]

         “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.”[11] As the Court in Iqbal stated,

[o]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of ...

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