State of Maine v. Evans

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SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-06-22 STATE OF MAINE KENNEBEC, ss. STATE OF MAINE, Plaintiff v. DECISION ON MOTION JAMES EVANS, JR., Defendant T h s matter comes before the court on the motion of defendant James Evans to set aside a default on his part. Mr. Evans presently lives in the Jacksonville, Florida area and, at his request, a hearing was conducted by telephone. After considering the pleadings and the argument presented during the hearing, the motion will be denied. Facts This matter arises from a Certificate of State Tax dated January 27, 2006, which certifies that Mr. Evans owes the State a total of $14,450.66 plus interest accruing monthly, for tax years 1990, 1991, 1992 and 1993. Based on that certificate, the State brought a complaint for collection of the unpaid Maine income tax, which was filed with the court on February 1, 2006. The State initially had some difficulty in serving defendant Evans with the complaint and summons, but in-hand service was finally accomplished in Florida on May 3, 2006. Served along with the complaint was the summons which included the following information, "If you wish to oppose tlus lawsuit, you or your attorney MUST PREPARE AND SERVE A WRITTEN ANSWER to the attached complaint WITHIN 20 DAYS from the date this Summons was served on you." (emphasis in the original) The summons also contains the following: IMPORTANT WARNING IF YOU FAIL TO SERVE AND ANSWER WITHIN THE TIME STATED ABOVE . . . A JUDGMENT BY DEFAULT MAY BE ENTERED AGAINST YOU IN YOUR ABSENCE FOR THE MONEY DAMAGES OR OTHER RELIEF DEMANDED IN THE COMPLAINT. According to the Rules of Civil Procedure and the warnings in the summons quoted above, Mr. Evans's answer was due on May 23, 2006. However, no timely answer having been filed, the plaintiff filed an "Affidavit and Request for Default and Default Judgment" on June 1, 2006. The default was entered on June 5, 2006, and the default judgment in the amount of $14,450.66 was entered on June 9, 2006. Finally on June 12, 2006, Mr. Evans filed h s answer. On July 3,2006, Mr. Evans filed his motion to set aside the default, whch is presently at issue. The motion to set aside the default contains no explanation as to why the answer was filed almost three weeks late. During the oral presentation, Evans did cite a change of residence, personal difficulties and a lack of money to h r e an attorney as general reasons why it has been difficult for him to concentrate on the State's claim. However, none of these factors constitute "good cause" which is the standard for granting the relief that is sought under M.R. Civ. P. 55(c). In conclusion, for the reasons stated above, the entry will be: Motion DENIED. Dated: September @ ,2006 S. Kirk Studstrup Justice, Superior Court STATE OF MAINE - PLAINTIFF SUPERIOR COURT KENNEBEC, ss . Docket No AUGSC-CV-2006-00022 Attorney for: STATE OF MAINE SCOTT W BOAK - RETAINED 02/06/2006 ATTORNEY GENERAL OFFICE OF AG 111 SEWALL STREET 6 STATE HOUSE STATION AUGUSTA ME 04333-0006 DOCKET RECORD vs JAMES EVANS JR - DEFENDANT 6934 RICHARDSON ROAD, JACKSONVILLE FL 322091316 Filing Document: COMPLAINT Filing Date: 02/01/2006 Minor Case Type: OTHER CIVIL Docket Events: 02/06/2006 FILING DOCUMENT - COMPLAINT FILED ON 02/01/2006 Plaintiff's Attorney: SCOTT W BOAK WITH ATTACHED CERTIFICATE OF STATE TAX ASSESSOR 02/06/2006 Party (6): STATE OF MAINE ATTORNEY - RETAINED ENTERED ON 02/06/2006 Plaintiff's Attorney: SCOTT W BOAK 04/05/2006 Party(s): STATE OF MAINE MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 04/05/2006 Plaintiff's Attorney: SCOTT W BOAK STATE OF MAINE'S MOTION FOR ENLARGMENT OF TIME TO FILE RETURN OF SERVICE WITH INCORPORATED MEMORANDUM OF LAW, AFFIDAVIT OF SCOTT W. BOAK AND PROPOSED ORDER ON STATE OF MAINE'S MOTION FOR ENLARGEMENT OF TIME TO FILE RETURN OF SERVICE. 04/10/2006 Party(s) : STATE OF MAINE MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 04/06/2006 DONALD H MARDEN , JUSTICE COPIES TO PARTIES/COUNSEL RETURNS OF SERVICE EXTENDED TO 6/30/06. TIME TO FILE 05/17/2006 Party(6): STATE OF MAINE SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 05/17/2006 Plaintiff's Attorney: SCOTT W BOAK 05/17/2006 Party(s) : STATE OF MAINE SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 04/13/2006 SERVICE OF JAMES EVANS JR 06/01/2006 Party(s): STATE OF MAINE SUMMONS/SERVICE - PROOF OF SERVICE FILED ON 06/01/2006 Plaintiff's Attorney: SCOTT W BOAK OUT OF STATE RETURN OF SERVICE AMENDED AFFIDAVIT JAMES EVANS JR 06/01/2006 Party(s): STATE OF MAINE SUMMONS/SERVICE - PROOF OF SERVICE SERVED ON 05/03/2006 Page 1 of 3 SERVICE OF Printed on: 09/11/2006 AUGSC-CV-2006-00022 DOCKET RECORD 06/01/2006 Party (s): STATE OF MAINE MOTION - AFFID & REQUEST DEFAULT/JUDG FILED ON 06/01/2006 Plaintiff's Attorney: SCOTT W BOAK 06/05/2006 Party (s): JAMES EVANS JR ORDER - DEFAULT ENTERED ON 06/05/2006 NANCY DESJARDIN , CLERK I1 DEFAULT ENTERED AGAINST JAMES EVANS JR. PARTIES/COUNSEL COPIES TO 06/13/2006 Party(s): JAMES EVANS JR RESPONSIVE PLEADING - ANSWER FILED ON 06/12/2006 06/13/2006 FINDING - JUDGMENT DETERMINATION ENTERED ON 06/09/2006 NANCY DESJARDIN , CLERK I1 ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL ORDER - DEFAULT JUDGMENT ENTERED ON 06/09/2006 NANCY DESJARDIN , CLERK I1 ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL Judgment entered for STATE OF MAINE and against JAMES EVANS JR in the amount of $14450.66. 06/13/2006 FINDING - FINAL JUDGMENT CASE CLOSED ON 06/13/2006 07/03/2006 Party (s): JAMES EVANS JR MOTION - MOTION SET ASIDE DEFAULT JUDG FILED ON 07/03/2006 AND ACCEPT ANSWER AND AFFIRMATIVE DEFENDSES. S/EVANS, PRO SE SERVICE. CERTIFICATE OF 07/11/2006 Party (s): STATE OF MAINE OTHER FILING - OPPOSING MEMORANDUM FILED ON 07/11/2006 Plaintiff's Attorney: SCOTT W BOAK STATE OF MAINE'S OPPOSITION TO DEFENDANT'S MOTION TO SET ASIDE DEFAULT AND ACCEPT ANSWER AND AFFIRMATIVE DEFENSES. 08/29/2006 Party(s): JAMES EVANS JR MOTION - OTHER MOTION FILED ON 08/29/2006 MOTION TO APPEAR BY TELEPHONE. 09/11/2006 Party(s): JAMES EVANS JR MOTION - MOTION SET ASIDE DEFAULT JUDG DENIED ON 09/08/2006 S KIRK STUDSTRUP , JUSTICE COPIES TO PARTIES/COUNSEL 09/11/2006 ORDER - COURT ORDER ENTERED ON 09/08/2006 S KIRK STUDSTRUP , JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL COPIES MAILED TO GARBRECHT LAW LIBRARY, DONALD GOSS AND DEBORAH FIRESTONE Page 2 of 3 Printed on: 09/11/2006 AUGSC-CV-2006-00022 DOCKET RECORD A TRUE COPY ATTEST : Clerk Page 3 of 3 P r i n t e d on: 09/11/2006

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