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IN THE COURT OF COMMON PLEAS
THIRTEENTH JUDICIAL CIRCUIT
C.A. NO. 2020-CP-23-
PLAINTIFFS' MEMORANDUM IN
SET ASIDE DEFAULT JUDGMENTOPPOSITION TO THE MOTION TO
STATE OF SOUTH CAROLINA
COUNTS OF GREENVILLE Cheryl Hairgrove and Jerry Hairgrove,
Plaintiffs,
vs.
N' Shake, and Steak N Shake, Inc., d/b/aShake, Steakers N' Shakers, LLC d/b/a Steak Steakers & Shakers III, LLC d/b/a Steak N'
Steak N' Shake,
Defendants.
The Plaintiffs, Cheryl Hairgrove and Jerry Hairgrove, by and through their
undersigned Counsel of Record respectfully submit this Memorandum in Opposition to
LLC d/b/a Steak N' Shake, (hereafter, "Defendants") Motion to Set Aside DefaultDefendants' Steakers & Shakers III, LLC, d/b/a/ Steak N' Shake, and Steakers N' Shakers,
Judgment pursuant to Rule 55 of the South Carolina Rules of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed their lawsuit alleging premises liability arising out of a fall that
served in accordance with the South Carolina Rules of Civil Procedure. Process was servedComplaint alleging several causes of action was filed on September i, 2020 and duly occurred on December 29, 2019 at the Defendants' property. The Summons and
2020. (See Affidavit of Service of Process Attached as Exhibit A). Process was served on on the Defendant Steakers &. Shakers III, LLC, d/b/a/ Steak N' Shake on September 3,
Defendant Steakers N' Shakers, LLC d/b/a Steak N' Shake on September 3, 2020. (See
Affidavit of Service of Process Attached as Exhibit B). The Defendants failed to file
Answers to Plaintiffs' Complaint despite proper service of process upon them. Plaintiffs
for Default Judgment was entered by the Court on October 27, 2020.filed their Motion and Affidavit for Default Judgment on October 26, 2020. The Order
II. LAW/ANALYSIS
A. RULE 7(b)(l)
South Carolina Rule of Civil Procedure 7(b)(i) requires that motions "shall state
S.C.R.C.P. 7Cb)(i). By requiring notice to the court and the opposing party of the basis for with particularity the grounds therefor, and shall set forth the relief or order sought."
assuring that 'the court can comprehend the basis of the motion and deal with it fairly. the motion, the Rule advances the policies of reducing prejudice to either party and
See Camp v. Camp, 386 S.C. 571, 575, 689 S.E.2d 634, 636 (2010). Therefore, when a
motion is challenged for a lack of particularity, the court should determine whether a
party is prejudiced by a lack of particularity or whether the court can comprehend the
basis for the motion and deal with it fairly. See id.
In this case, the Defendants filed a Motion to Set Aside the Entry of Default on or
about November 17, 2020. In the motion that was filed with the Court, the entirety of the
Defendants' Motion is as follows:
[Defendants move the court] for an Order setting aside the default of
Defendants for failing to answer, move, or otherwise plead in response to
to Rule 55, SCRCP as good cause exists.the Complaint. Defendants move to set aside the entry of default pursuant
This Motion shall be based on the South Carolina Rules of Civil Procedure, memoranda, and any additional South Carolina law and argument as shall
be appropriate.
explanation for the default, the trial court must also consider the following factors: (i) the431 S.C. 454, 848 S.E.2d 788 (Ct. App. 2020). Once a party has put forth a satisfactoryof the default entry would serve the interests of justice. See Campbell v. City of N. Chas.,
timing of the defendant's motion for relief, (2) whether the defendant has a meritorious
v. Shearson Lehman Bros., 298 S.C. 462,465, 381 S.E.2d 499, 502 (Ct. App. 1989).defense, and (3) the degree of prejudice to the plaintiff if relief is granted. See Id; Wham
The Defendants have failed to offer an explanation for the default in this case and
case. Moreover, Defendants have failed to establish that their motion is timely and havetherefore, have failed to establish that good cause exists to set aside the default in this
from default is granted. Defendants have failed to even argue otherwise.failed to offer any meritorious defense. Plaintiff will suffer substantial prejudice if relief
l. FAILURE TO PROVIDE AN EXPLANATION FOR ENTRY OF DEFAULT
Defendants have offered no explanation for the entry of default. As set forth above,
Defendants have failed to articulate any reasons for the entry of default, it is impossiblethe Rules require Defendants to provide the bases for their Motion in writing. Because
for Plaintiffs to respond.
The first task of a litigant who seeks for his default to be set aside is to provide a
sufficient explanation for why he did not timely plead and must also provide reasons why
Plaintiffs and to the Court. Assuming arguendo that the Court allows such arguments toassert that Defendants have waived these arguments by failing to timely provide them to 1 To the extent that Defendants do attempt to offer an explanation or bases. Plaintiffs letting him out of default would serve the interests of justice. See Sundown Operating Co.
be made, the Plaintiffs seek leave of this Court to file a supplemental pleading with the Court and respond to any such specific argument.
v. Intedge Indus., 383 S.C. 601, 681 S.E.2d 885 (2009). Only if the litigant satisfies the
first prong does the court then move to the second prong of the analysis. See id at 607-
o8. The second prong of the analysis is a consideration of the Wham. factors. If the
defendant does not offer a satisfactory explanation for the entry of default, the court need
not consider the second prong of the analysis. See Sundown, supra.
Defendants have, as of the date of the filing of this Memorandum, offer no
meritorious defense whatsoever for their failure to Answer within the time prescribed by
and complaint served ... Even if we were to assume that Petitioner showed good cause as(2009). "Petitioner has put forth no explanation with regard to the fate of the summons the Rules.2 See Sundown Operating Co. v. Intedge Indus., 383 S.C. 601, 681 S.E.2d 885
Beach went unanswered." Id at 609-10.failed to show good cause as to why the summons and complaint that arrived in Myrtletimely manner, we must nevertheless affirm the entry of default because Petitioner has to why the summons and complaint that arrived in Rocky M:ount was not answered in a
Plaintiffs respectfully assert that this Court is required to deny the Defendants
Motion.
- DEFENDANT'S MOTION FOR RELIEF IS NOT TIMELY
Assuming arguendo that the Court determines that an examination of the Wham.
2 Counsel for the Defendants did reach out by telephone on November 9, 2020 to indicate
excusable neglect sufficient to put aside a default judgment. See Roche v. Young Bros. offorward a summons and complaint after receiving it does not constitute inadvertence orVanvolkenburg, 312 S.C. 373, 375, 440 S.E.2d 408, 409 (Ct. App. 1994). A failure toclear that an insurance company's misconduct is imputable to the client. See Williams v.that they were unaware of the lawsuit due to their insurance carrier. However, the law is
no such argument has been advanced by the Defendants before the Court.Florence, 318 SC 207,210-12, 456 SE2d. 897, 899-901 (1995). It is important to note that
satisfied any of the Wham Factors. The Wham factors do not weigh in favor of lifting the
aside two months after the entry of default, and appellants failed to assert a meritorious denied a motion to set aside an entry of default when appellants filed the motion to setentry of default. In the case of Richardson v. P.V., Inc., the South Carolina Supreme Court
defense and failed to argue that plaintiff would not be prejudiced if the entry of default
The Defendants' Motion must be denied. failed to even argue that the Plaintiffs' will not be prejudiced by setting aside the default. was lifted. 383 S.C. 610, 619, 682 S.E.sd 263, 267 (2009). In this case. Defendants have
CONCLUSION
The Defendants have failed to comply with the South Carolina Rules of Civil
Procedure in providing the bases for their Motion. The Defendants have failed to provide
a satisfactory reason for the default entered against them. The Defendants have failed to provide the court with an evidentiary bases applied to the Wham factors. For all of the
Defendants Motion and proceed to a hearing for damages in the above captioned matter.reasons set forth above, the Plaintiffs respectfully request that this Court deny the
January 21, 2021 Anderson, South Carolina
s/Mary Cathenne^Harbin_
Mary Catherine Harbin, SC Bar#l04i46 Jennifer Spragins Burnett, SC Bar #
HARBIN & BURNETT, LLP 2124 North Highway 81 (29621)
(864) 964-0333 Anderson, SC 29622 P 0 Box 35 (864) 964-0930 (fax)
Attorneys for the Plaintiffs
