                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 ANTHONY WOODS,

                        Plaintiff,

                        v.                            Case No. 1:17-cv-01338 (TNM)

 RONALD FLOWERS,

                        Defendant.


                                     MEMORANDUM OPINION

       Defendant Ronald Flowers has filed a Motion to Set Aside Default Judgment and a

Motion for Reconsideration of Default Judgment (collectively, the “Motions”). Plaintiff

Anthony Woods, Trustee of the Woods-Flowers Living Trust (the “Trust”), opposes the Motions.

Opp’n. to Mot. to Set Aside Default J. Upon consideration of the Motions, the pleadings,

relevant law, and the entire record herein, I find that the circumstances do not warrant vacating

the judgment. Accordingly, Defendant’s Motions will be DENIED.


I.     Background

       Plaintiff Anthony Woods, as Trustee, filed an action on July 6, 2017 for ejectment,

possession of property, and monetary damages against Defendant Ronald Flowers, his half-

brother. Compl. ¶¶ 3-4, 15-27. The property at issue is a parcel of land and house on the same

in the District of Columbia, at which Mr. Flowers and Vivian Woods-Flowers, the parties’

mother, lived prior to her death in December 2015. Id. at ¶¶ 4-5, 8. Prior to her death,

Ms. Woods-Flowers established the Trust and transferred the real property, which she held in fee
simple absolute, to the Trust. Id. at ¶ 6; see also id. at Ex. 2. Upon her death, Mr. Woods

became Trustee pursuant to the terms of the Trust. Id. at ¶ 5; see also id. at Ex. 1 ¶ 6.1.

       The complaint alleges that Mr. Flowers continues to live at the property, and unlawfully

refuses to vacate the premises and pay rent for use of the property. Id. at ¶¶ 8, 10. He is also

allegedly causing damage to the property by failing to undertake any repairs or maintenance, and

refusing to clean the property or pay for any expenses associated with the property, including

property taxes, which are overdue. Id. at ¶¶ 12-14. Mr. Woods claims that the property needs to

be sold in order to pay the property taxes. Opp’n. to Mot. to Set Aside Default J. ¶ 4.

       After seven attempts to serve Mr. Flowers by process server, this Court granted a month’s

additional time to effect service. See Pl.’s Response to Rule 4(m) Order ¶ 3; Minute Order, Oct.

10, 2017. Service was effectuated on October 23, 2017, and Mr. Flowers failed to respond to the

complaint by the required date. Mot. for J. by Default ¶¶ 1-2. On December 4, 2017, on request

by Mr. Woods and pursuant to Federal Rules of Civil Procedure 55(a), the Clerk of Court entered

a default against Mr. Flowers. Clerk’s Entry of Default, Dec. 4, 2017, ECF No. 10. On

December 27, 2017, I granted Mr. Woods’ motion for default judgment and ordered that

possession of the property at issue be awarded to the Trustee of the Woods-Flowers Living Trust,

that Mr. Flowers be ejected from the property and vacate the property within 30 days of the

order, and that judgment be entered in favor of Mr. Woods in the amount of $35,000 and post-

judgment interest to be awarded at the legal rate. Order Granting Pl.’s Mot. for Default J., Dec.

27, 2017, ECF No. 12. Mr. Flowers’ Motions seek to vacate the default and default judgment.


II.    Legal Standard

       Federal Rule of Civil Procedure 60(b) permits the Court to relieve a party from a final

judgment based on “(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other


                                                  2
reason that justifies relief.” The motion must be made within a “reasonable” time, and for

motions based on Rule 60(b)(1), “no more than a year after the entry of the judgment”. Fed. R.

Civ. P. 60(b)-(c). Relief for excusable neglect is “rare” and relief pursuant to Rule 60(b)(6) is

“even more rare, being available only in ‘extraordinary circumstances’”. Owens v. Republic of

Sudan, 864 F.3d 751, 818 (D.C. Cir. 2017). The party seeking relief has the burden of showing

that he is entitled to relief. Id. at 819. Although this district “supports a liberal application of

Rule 60(b)(1) to default judgments,” the Court reviews the motion based upon “the danger of

prejudice to the [non-moving party], the length of the delay and its potential impact on judicial

proceedings, the reason for the delay, including whether it was within the reasonable control of

the movant, and whether the movant acted in good faith.” Id. at 819-20. In addition, the movant

must “assert a potentially meritorious defense.” Id. at 819.


III.    Analysis

        The circumstances of this case, as analyzed through the aforementioned factors, do not

support vacatur. Further, Mr. Flowers has not asserted a potentially meritorious defense.

        With respect to the factors, Mr. Woods argues that vacatur is prejudicial because

Mr. Flowers has unlawfully frustrated Mr. Woods from exercising his authority, as Trustee, to

sell the property since September 2016, including changing the locks to the property and failing

to perform necessary maintenance on the property. Opp’n. to Mot. to Set Aside Default J. ¶ 4.

In addition, Mr. Woods contends that Mr. Flowers’ failure to maintain the property has

negatively impacted the value of the property and will cause a delay in its sale. Id.; Compl. ¶ 12-

13. I find that vacating the final judgment in this case risks prejudicing Mr. Woods as the

property taxes have not been paid, and further delay in the sale of the property increases the

chance of a tax sale. See Opp’n. to Mot. to Set Aside Default J. ¶ 4. As for the other criteria to


                                                   3
consider, the length of the delay was fewer than two months. See Return of Service/Affidavit of

Summons, Oct. 26, 2017, ECF No. 8 (requiring answer by November 13, 2017); Answer to

Compl., ECF No. 13 (filed January 2, 2018). Mr. Flowers explains that the delay was due to his

unemployment and financial inability to retain counsel. Mot. to Set Aside Default J. ¶ 1. While

this amount of time may not weigh against him in other contexts, here, there are indications that

Mr. Flowers did not act in good faith in this proceeding. He did not answer any of seven

attempts for service over a nearly month-long period, resulting in Mr. Woods needing to incur

additional costs to have a process server wait outside of the property to effectuate service. See

Affidavit of Non-Service, Sept. 29, 2017, ECF No. 6-1; Opp’n. to Mot. to Set Aside Default J.

¶ 4. Further, although the complaint was served on October 23, 2017, Mr. Flowers did not retain

counsel until more than two months later, which is more than one month after a response to the

complaint was due and several weeks after the Clerk of Court entered a default against him. See

Mot. for J. by Default ¶ 1; Mot. for Reconsideration of Default J. ¶ 2.1 Given the risk of
                                                                        0F




prejudice to Mr. Woods and the indicia of bad faith on the part of Mr. Flowers, I find that the

circumstances do not warrant vacating the final judgment.

       Even if circumstances did indicate that vacatur is appropriate, Mr. Flowers has not shown

a potentially meritorious defense. Mr. Flowers answers that the terms of the Trust do not permit

Mr. Woods, as Trustee, to sell the property but rather requires him to “distribute” the property.

Answer to Compl. ¶ 3; Mot. for Reconsideration of Default J. ¶ 4a. He also responds that he has

a one-half beneficial interest in the property and therefore has the right to occupy it without a




1
  The Motion for Reconsideration of Default Judgment appears to have a typo in the date stated
for retention of legal counsel. The date stated is January 28, 2017; however, I infer that the
proper date should instead have been December 28, 2017.

                                                  4
rental agreement or payment of rent. Id. at ¶ 4b-d; Answer to Compl. ¶ 5. Neither of these

defenses are potentially meritorious.

       Mr. Woods is the duly appointed Trustee. See Compl. Ex 1 ¶ 6.1. As Trustee,

Mr. Woods is authorized to pay for, inter alia, “legally enforceable claims against the Grantor

[Ms. Woods-Flowers] or the Grantor’s estate; [] expenses with regard to the administration of the

Grantor’s estate; [and/or] federal estate tax, applicable state inheritance or estate taxes” out of the

Trust Estate, which includes the property at question. See Compl. Ex. 1 ¶¶ 1.3, 5.1(C); id. at Ex.

2. In addition, the Trustee is permitted “[t]o sell any property, for cash or on credit, at public or

private sale”. Id. at Ex. 1 at ¶ 6.8(B). Based on these unambiguous provisions, the Trustee is

authorized to sell the property in order to pay for, among other things, the overdue property

taxes. Furthermore, while Mr. Flowers may have resided at the property since childhood, Mot.

for Reconsideration of Default J. ¶ 4a, he did not jointly own the property with his mother, who

was the sole owner of the property in fee simple absolute, and who transferred the property and

its improvements to the Trust prior to her death. See Compl. ¶ 6; see also id. at Ex. 2. As such,

the Trust owns the property and its improvements in its entirety. Mr. Flowers is not a co-owner

of the property, nor does he have a beneficial interest in the property. 2 Neither of these
                                                                         1F




arguments provides a potentially meritorious defense.




2
  As a beneficiary of the Trust, however, Mr. Flowers is entitled to one-half of the remainder of
the Trust after the Trustee executes his administrative duties. See Compl. Ex. 1 Art. Five.

                                                   5
IV.    Conclusion


       For the foregoing reasons, the Defendants’ Motions will be denied and the previously-

entered judgment will stand. A separate order will issue.



                                                                          2018.01.17 18:15:30
                                                                          -05'00'
Dated: January 17, 2018                             TREVOR N. MCFADDEN
                                                    United States District Judge




                                                6
