      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


KUSHAL KALPAN SHAH, a.k.a.                   )
GERRON LINDSAY,                              )
                                             )
            Plaintiff ,                      )
       v.                                    )
                                             )    C.A. No. N13M-10-022 MMJ
ROBERT COUPE, Commissioner of                )
Delaware Department of Corrections           )
                                             )
              Defendant.

                             Submitted: August 29, 2014
                             Decided: November 3, 2014

                     Upon Plaintiff’s Motion for Default Judgment
                                       DENIED


                                      ORDER

Kushal K. Shah, Petitioner, Pro Se.

Kenisha Ringgold, Esquire, Department of Justice, Attorney for Defendant.




JOHNSTON, J.
      1. On June 27, 2002, Plaintiff Kushal K. Shah (“Shah”) pled guilty, but

mentally ill to First Degree Murder. Shah was sentenced to the custody of the

Delaware Department of Corrections (“DOC”) or the Delaware Psychiatric Center

(“DPC”) for the remainder of his natural life. Since the time of sentencing, Shah

has remained at the James T. Vaughn Correctional Center.

      2.   On October 9, 2013, Shah filed a Petition for Writ of Mandamus

(“Petition”) in this Court. Shah’s Petition asks the Court to compel DOC to

transfer Shah to DPC. Shah asserts that 11 Del. C. § 408(b) entitled Shah to be

confined initially at DPC following his sentencing.

      3. On January 3, 2014, Shah filed a letter asking the Court to grant default

judgment against Defendant Commissioner Robert Coupe (“Commissioner

Coupe”). Shah asserted that the State was served with the Petition on November

12, 2013, and failed to file an answer within the 20-day time period.

      4.   On May 22, 2014, the State entered an appearance on behalf of

Commissioner Coupe. On June 16, 2014, the State filed a Motion to Dismiss

Plaintiff’s Petition for Writ of Mandamus and Opposition to Plaintiff’s Motion for

Default Judgment (“Opposition to Default Judgment”).          In the Opposition to

Default Judgment, the State asserted: “Due to an oversight the undersigned’s entry

of appearance of [sic] was not filed with the Court.”




                                         2
          5. On August 4, 2014, the Court sent a letter to the State requiring an

explanation or reason for the oversight. On August 29, 2014, the State sent a letter

explaining the reason for the oversight. The State declared that the supporting

documents of Shah’s Superior Court case were mistakenly filed with a pending

District Court lawsuit also filed by Shah. The State represented to the Court that

once the mistake was noticed, an entry of appearance was filed, followed

subsequently by the Motion to Dismiss.

          6.   Superior Court Rule 55(b)(1) provides: “When the plaintiff's claim

against a defendant is for a sum certain or for a sum which can by computation be

made certain, the Prothonotary upon written direction of the plaintiff and upon

affidavit of the amount due shall enter judgment for that amount and costs against

the defendant, if the defendant has failed to appear in accordance with these Rules

unless the defendant is an infant or incompetent person.”1

          7. In contrast, Superior Court Rule 55(b)(2) states: “In all other cases, the

party entitled to a judgment by default shall apply to the Court therefor; but no

judgment by default shall be entered against an infant or incompetent person unless

represented in the action by a guardian, trustee or other representative. If the party

against whom judgment by default is sought has appeared in the action, the party

(or, if appearing by representative, the party's representative) shall be served with


1
    Super. Ct. Civ. R. 55(b)(1).
                                            3
written notice of the application for judgment at least 3 days prior to the hearing on

such application.” 2

       8. In analyzing Rule 55(b), this Court has held that “[t]here is no hard and

fast rule that the filing of an entry of appearance or an untimely answer renders

default judgment unavailable.”3 After an entry of appearance or an untimely

answer is filed, a motion for default judgment still may be granted in the Court’s

discretion. 4 However, the preference of Delaware courts is to decide cases on their

merits.5 Therefore, public policy requires that any reasonable doubt be resolved in

favor of the party opposing the default judgment. 6

       9. In this case, Shah correctly filed the motion for default judgment with the

Court under Rule 55(b)(2) because Shah’s claim against the State is not for a sum

certain. Rather, Shah seeks to compel DOC to transfer Shah to DPC, an action that

is not quantifiable. Also, Shah was not obligated to give the State notice of the

application for default judgment because as of January 3, 2014, the State had

neither entered an appearance nor filed an answer to Shah’s petition. Therefore,

Shah’s motion for default judgment falls into the “[i]n all other cases” language of

Rule 55(b)(2).


2
  Super. Ct. Civ. R. 55(b)(2).
3
  Pinkett ex rel. Britt v. Nationwide Mut. Ins. Co., 832 A.2d 747, 750 (Del. Super. 2003).
4
  Id.
5
  Marvel v. Prison Industries, 2006 WL 2242750, at *1 (Del. Super.).
6
  Id.; see also Old Guard Ins. Co. v. Jimmy’s Grille, Inc., 2004 WL 2154286, at *3 (Del.)
(TABLE).
                                                4
      10. However, as a matter of public policy, the Court will decide Shah’s case

on its merits. Although the State failed to enter an appearance until five months

after Shah’s motion, the Court finds that the State’s proffered explanation

constitutes excusable neglect. The Court exercises its discretion against entering a

default judgment against the State.


      THEREFORE, Plaintiff’s Motion for Default Judgment is hereby

DENIED.


      IT IS SO ORDERED.



                                               /s/__Mary M. Johnston___________
                                                  The Honorable Mary M. Johnston




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