United States District Court, D. Utah
LONNIE J. WASHBURN, Plaintiff,
WRAG PROPERTIES, INC., Defendant.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION TO DISMISS AND PLAINTIFF'S REQUEST FOR ENTRY OF
Stewart, United States District Judge.
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.
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.” The RLPHRA provides a private right of
action for treble damages for violation of the Act's
disclosure requirements. Plaintiff alleges that Defendant
violated the disclosure requirements and seeks treble damages
totaling $223, 440.
served Defendant on February 25, 2019, making March 18, 2019,
the deadline for filing a responsive pleading. 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.
REQUEST FOR ENTRY OF DEFAULT
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.
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. 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.” “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.'”
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.
MOTION TO DISMISS
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. Plaintiffs must provide “enough
facts to state a claim to relief that is plausible on its
face, ” which requires “more than an
accusation.” “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
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.” As the Court in Iqbal
[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 ...