Washburn v. WRAG Properties, 2:19-cv-00076

Plaintiff (Washburn) sued Wrag Properties under the Residential Lead-Based Paint Hazard Reduction Act (RLPHRA), alleging failure to disclose known lead-based paint and seeking treble damages (~$223,440).
Complaint filed Feb 6, 2019; defendant was served Feb 25, 2019, making March 18 the responsive-pleading deadline.
Defendant filed a Motion to Dismiss on March 19, one day late; plaintiff filed a Request for Entry of Default the same day.
The clerk never entered default; plaintiff’s request for default remained unacted and opposed by defendant’s late filing.
The court declined to enter default (and stated it would set aside default if entered) because the delay was not willful, plaintiff would not be prejudiced, and defendant presented a potentially meritorious defense.
On the Rule 12(b)(6) motion, the court denied dismissal: it must accept well-pleaded factual allegations (including plaintiff’s allegation that lead paint existed) and cannot consider defendant’s extrinsic affidavits/invoices that contradict the complaint at the pleading stage.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether clerk should enter default for defendant’s one-day-late response	Entry of default appropriate because no timely responsive pleading was filed	A one-day late responsive filing was submitted; default should not be entered or should be set aside	Denied entry of default; even if entered, the court would set it aside (delay not willful, no prejudice, meritorious defense)
Whether complaint fails to state a claim under Rule 12(b)(6) for failure to allege presence of lead paint	Complaint sufficiently alleges failure to disclose lead paint (pleaded facts accepted as true)	Dismiss because plaintiff provided no exhibit/allegation proving presence of lead paint; submits affidavits/invoice to refute allegation	Denied dismissal; court must accept plaintiff’s well-pleaded allegations and cannot resolve factual disputes using defendant’s outside evidence at pleading stage

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
Ashcroft v. Iqbal, 556 U.S. 662 (assessment of plausibility and court’s role on Rule 12(b)(6))
Gomes v. Williams, 420 F.3d 1364 (10th Cir. 2005) (default-disfavoring policy; decisions set aside defaults)
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381 (10th Cir. 1997) (accept well-pleaded factual allegations on motion to dismiss)
Pinson v. Equifax Credit Information Servs., Inc., [citation="316 F. App'x 744"] (10th Cir. 2009) (factors for setting aside default)