In re: Kevin Maslak, No. 958-12-09 Rdcv (Cohen, J., June 4, 2010)

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                                                STATE OF VERMONT
                                                 RUTLAND COUNTY

                                                                    )
              IN RE: KEVIN MASLAK                                   )           Rutland Superior Court
                                                                    )           Docket No. 958-12-09 Rdcv
                                                                    )
                                                                    )
                                                                    )


DECISION ON PETITIONER’S MOTION FOR DEFAULT JUDGMENT, FILED
  MARCH 4, 2010, and MOTION FOR JUDGMENT ON THE PLEADINGS,
                        FILED MAY 11, 2010

           This is a petition for post-conviction relief by Kevin Maslak. In May 2009, Mr.

Maslak pleaded guilty to two counts of driving under the influence, three counts of

violating conditions of release, and one count of driving with a suspended license. He is

currently serving a sentence of 3 to 10 years.

           Mr. Maslak now seeks default judgment against the State of Vermont for failing

to timely answer his petition. Mr. Maslak is represented by Stephanie B. Foley, Esq. The

State of Vermont is represented by Deputy State’s Attorney Peter R. Neary.

                                                     BACKGROUND

           Kevin Maslak filed his petition for post-conviction relief on December 18, 2009.

In his petition, he argues that (1) the district court, in accepting his guilty pleas, failed to

ensure they were voluntary, (2) the district court imposed an illegal sentence based upon

charges that were pending, and (3) he received ineffective assistance of counsel.

           In February 2010, the Court issued an entry order requiring the State to file an

answer by March 1. The State failed to abide by this deadline. On March 4, Mr. Maslak

filed a motion for default judgment. The State filed its answer on March 26.
        On May 11, Mr. Maslak filed a supplemental motion for default judgment and a

motion for judgment on the pleadings. With this combined motion, Mr. Maslak included

evidence in the form of district court transcripts and the plea agreements. The State

responded by opposing both the motion for default judgment and the motion for

judgment on the pleadings.

                                        DISCUSSION

        Under V.R.C.P. 55(e), “[n]o judgment by default shall be entered against the State

of Vermont . . . unless the claimant establishes a claim or right to relief by evidence

satisfactory to the court.” The Vermont Supreme Court has yet to address Rule 55(e). The

Court has held, however, that “the rules relating to default judgments should be liberally

construed in favor of defendants, and of the desirability of resolving litigation on the

merits, to the end that fairness and justice are served.” Dougherty v. Surgen, 147 Vt. 365,

366 (1986) (quoting Desjarlais v. Gilman, 143 Vt. 154, 158-59 (1983)). Thus, “[a]

default may not be entered unless it appears that a defendant has failed to plead or

otherwise defend.” Dougherty, 147 Vt. at 366-67.

        Furthermore, V.R.C.P. 55(e) is substantially similar to F.R.C.P. 55(d). “Because

our rule is identical to the federal rule, we look to the Federal cases interpreting the

Federal Rules as an authoritative source for the interpretation of our rule.” Rule v. Tobin,

168 Vt. 166, 169 (1998) (citing Reporter's Notes to V.R.C.P. 1). While default judgments

against the federal government are not precluded under the rule, as a practical matter,

when the government’s default is due to a failure to plead or otherwise defend, a court

typically will either refuse to enter a default or, if a default is entered, it will be set aside.

10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2702. This view




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comports with the “desirability of resolving litigation on the merits, to the end that

fairness and justice are served.” Dougherty, 147 Vt. at 366.

       Here, the State has filed an answer, albeit three weeks later than the court-

imposed deadline. It has also filed an opposition to the motion for default judgment and

the motion for judgment on the pleadings. Thus, the State has not “failed to plead or

otherwise defend.” Id. at 366-67. It seeks to be an active participant in the case and

represent the people of Vermont.

       “Fairness and justice” will not be served by entering default judgment against the

State. This would preclude the people of Vermont from participating in these proceedings

because of the filing delay by the State’s Attorney’s office. Notwithstanding this ruling,

the State’s Attorney’s excuses of heavy case load and unfamiliarity with civil practice are

unpersuasive. The State will be expected to strictly comply with all future deadlines and

orders regarding this case. Mr. Maslak should not be made to wait, nor should the people

of Vermont be put at a disadvantage because of the State’s Attorney’s inexcusable delay.

       Finally, the Court turns to the motion for judgment on the pleadings. “For the

purposes of the motion all well pleaded factual allegations in the nonmovant's pleadings

and all reasonable inferences that can be drawn therefrom are assumed to be true and all

contravening assertions in the movant's pleadings are taken to be false.” Thayer v. Herdt,

155 Vt. 448, 456 (1990). Thus, taking as true as well pleaded facts and inferences from

the State’s answer, the Court does not find that judgment on the pleadings in appropriate.

       Here, the files and records of the case show that Mr. Maslak is possibly entitled to

relief. In accordance with 13 V.S.A. § 7133, a hearing will be set to determine the issues

and make findings of fact and conclusions of law.




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                                ORDER

(1) Petitioner Kevin Maslak’s Motion for Default Judgment, filed March 4, 2010,
    is DENIED.

(2) Petitioner Kevin Maslak’s Motion for Judgment on the Pleadings, filed May
    11, 2010, is DENIED

(3) A hearing will be set to determine the issues and make findings of fact and
    conclusions of law.


Dated at Rutland, Vermont this _____ day of ________________, 2010.


                                             ____________________
                                             Hon. William Cohen
                                             Superior Court Judge




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