Opinion
Civil Action No. 08L-05-191 WCC.
Submitted: January 19, 2011.
Decided: April 29, 2011.
On Plaintiffs' Motion for Default Judgment — DENIED
David Boswell, Esquire, Schmittinger Rodriguez, P.A., Rehoboth Beach, DE.
Blake W. Carey, Esquire, Tunnell Raysor, P.A., Georgetown, DE.
Michael R. Smith, Esquire, Griffin Hackett, P.A., Georgetown, DE.
Dear Counsel:
The Court has before it a Motion for Default Judgment regarding Defendants Mark Fuller and Andrew Cannon, Sr. The Motion initially included the corporation Atlantic Framing, LLC, but finding no objection to the entry of default as to the corporation, an Order granting that Motion was issued on November 30, 2010. This is the Court's decision relating to the remaining Defendants.
This is a mechanics lien action in which it is alleged the Plaintiffs did not receive payment for construction work performed on a building in the Villas of Twin Lakes located near the intersection of Elkton Road and McIntyre Road in New Castle, Delaware. Generally it is asserted that Atlantic Framing, through its agents Mr. Fuller and Mr. Cannon, received funds from Schell Brothers LLC for work performed by the Plaintiffs for which they did not receive compensation. The litigation is obviously a frustrating exercise as it appears Atlantic Framing is now a defunct company and the funds from Schell Brothers have been expended. In addition, because of the amount of the claims, extensive litigation would be unproductive as the litigation costs would exceed the amount of the claims. In this environment, Plaintiffs' counsel has made persistent efforts to obtain reasonable compensation to which it appears his clients are entitled, and his actions are clearly commendable. Unfortunately, this alone does not allow the litigation to be fast tracked or exempted from the normal practices of this Court.
Since the filing of the Motion, both Mr. Fuller and Mr. Cannon have retained counsel and have filed an answer to the Complaint. While Plaintiffs' counsel argues the position taken by the Defendants is insufficient to overcome the default motion, the Court disagrees. While it is unfortunate an answer was not filed timely in the litigation, it appears that attempts were being made to resolve the litigation and pleadings were not filed simply to avoid potential unnecessary expense because of the small amount of the claims. While this is understandable conduct by counsel, it is not condoned by the Court. Frankly, an answer should have been filed within the time frame established by the rules and then a reasonable request could have been made to stay the litigation while settlement negotiations were occurring. While this would have been the more appropriate practice, it is not fatal to the Defendants' position. It has been the long-standing practice of the Court to prefer that litigation be decided on the merits and not on legal technicalities. Since it appears the basis of the Motion was that the Defendants failed to file an answer and that situation has now been rectified, the Motion for Default will not be granted.
There is also a request by Plaintiffs' counsel to require that the Defendants pay all of counsel fees and costs expended to date in this litigation and to require that a security bond of $50,000.00 be posted. However, without more information, this is simply not a reasonable request. There is a significant question as to financial status of the parties in light of the downturn in the economy, particularly in the construction industry. While the Court will not require the Defendants to pay costs at this time or post a security bond, it will require that all outstanding discovery requests that have been filed to date should be appropriately responded to and filed by May 13, 2011. If the Defendants object to any of the discovery that has been requested, the appropriate action to resolve the matter is to file a motion with the Court so the dispute can be resolved.
Since Defendant Cannon had not filed an answer, this request was only directed toward Defendant Fuller. The Court assumes that now that Defendant Cannon has filed an answer, the Plaintiffs' application would apply to both Defendants.
IT IS SO ORDERED.