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Court limits affirmative defenses in untimely answer

Where a company failed to respond to an amended complaint for more than five months, despite having notice of that filing and a court order requiring it to respond within 14 days, its untimely answer was allowed, but it was precluded from raising certain affirmative defenses and must pay the plaintiff’s fees incurred in moving for default judgment.


On Nov. 4, 2016, Herbert H. Mullinex Jr. and Patricia Mullinex filed their original complaint in Virginia state court, alleging a personal injury negligence claim based on asbestos exposure aboard Navy ships. On March 23, 2018, the action was removed to this court. Unfortunately, the late Mr. Mullinex died on Nov. 11, 2021. On Jan. 12, 2022, plaintiff filed a second amended complaint, substituting Mrs. Mullinex as executrix of Mr. Mullinex’s estate.

Then, on March 22, 2022, plaintiff sought leave to file a third amended complaint, seeking recovery for the wrongful death of Mr. Mullinex under general maritime law. On March 24, 2022, the court granted plaintiff leave to file the third amended complaint, and ordered defendant to file an answer within 14 days of the filing. That same day, plaintiff filed the third amended complaint, claiming that defendant failed to warn plaintiff about the asbestos risk associated with using their products.

Defendant failed to file an answer by the 14-day deadline, which expired on April 7, 2022. On Sept. 7, 2022, the clerk of the court entered default against defendant. On Sept. 15, 2022, defendant filed a motion for leave to file an answer to the third amended complaint and its opposition to plaintiff’s motion for default judgment.


The Fourth Circuit has indicated a strong preference that defaults be avoided, and claims and defenses be disposed of on their merits. The court liberally construes the “good cause” criteria, resolving all doubts in favor of setting aside the entry of default.

Here, several factors weigh in favor of setting aside the default entry. However defendant’s unwillingness to take personal responsibility for the default and failure to offer any explanation for the untimely answer to the third amended complaint do weigh strongly against defendant.

Defendant has zealously litigated all other aspects of this matter but did not bother to respond to the third amended complaint. Whether this was the result of carelessness or clear intent, a defendant cannot rely on the court’s leniency when in default because of his dilatory actions. Accordingly, the court finds it necessary to fashion a less onerous but effective sanction as a consequence of defendant’s missteps.

Accordingly, the court finds that good cause exists to justify setting aside the entry of default and the interests of justice will be best served by trial on the merits. The court will grant leave for defendant to file its proposed answer in a separate order but will sanction defendant for its failure to abide by the Federal Rules of Civil Procedure and follow the court’s order.

To the extent that defendant’s answer to the third amended complaint raises any affirmative defenses to the wrongful death claim, those defenses will be barred. In addition, the court will assess attorney’s fees against defendant and assign all costs and related expenses incident to filing plaintiff’s motion to defendant, including plaintiff’s motion for default judgment, reply and opposition to defendant’s motion for leave to file an answer to the third amended complaint.

Plaintiff’s motion for default judgment denied.

Mullinex v. John Crane Inc., Case No. 4:18-cv-33, Oct. 24, 2022. EDVA at Richmond (Hudson). VLW 022-3-481. 10 pp.

VLW 022-3-481