United States District Court, M.D. Georgia, Macon Division
U.S.C. § 1983
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
pending before the Court are Plaintiff's motions for
entry of default (ECF Nos. 32, 33, 52), motions for default
judgment (ECF Nos. 35, 44), and motions to amend (ECF Nos.
58, 59). Also pending are Defendants' motion to set aside
the default against Defendants Stephens and Sanford (ECF No.
53) and motion for an extension of time to file an answer
(ECF No. 54). For the reasons explained below,
Plaintiff's motions for default and motions to amend are
granted. His motions for default judgment are denied.
Defendants' motions to set aside the default and for an
extension of time are granted.
filed this action on August 15, 2016, asserting claims
against multiple parties. See generally Compl., ECF
No. 1. After a preliminary review, service was ordered
against Defendants on October 19, 2016. Order, ECF No. 14.
The United States Marshals Service issued a Process Receipt
and Return on October 20 which was mailed to Defendants on
October 24, 2016. (ECF Nos. 16-20.) All Defendants failed to
waive service in accordance with Federal Rules of Civil
Procedure Rule 4(d). Consequently, the Marshals Service
issued a Summons and Process Receipt and Return for personal
service on December 21, 2016. (ECF No. 24.) Defendants
Sanford and Stephens were personally served on January 6,
2017 and January, 27, 2017, respectively. (ECF Nos. 29, 31.)
Defendants Sanford and Stephens failed to timely answer or
otherwise respond to Plaintiff's complaint. The clerk
thus entered default against Defendants Sanford and Stephens
on March 14, 2017. Plaintiff moved for default judgment
against Defendants Sanford and Stephens on March 23, 2017
(ECF No. 44).
January 6, 2017, a United States Marshal served Defendants
Williams, Jones, and Burney by serving Defendant Sanford,
Chief of Security. (ECF Nos. 27, 28, 30) Service on
Defendants Williams, Jones, and Burney was not proper
personal service in accordance with Federal Rules of Civil
Procedure Rule 4(e). The United States Marshals Service was
thus directed to personally serve Defendants Williams, Jones,
and Burney in accordance with Federal Rules of Civil
Procedure Rule 4(e)(2)(A). Order 2, Mar. 14, 2017, ECF No.
39. Defendants Williams and Burney were personally served on
March 29, 2017 (ECF Nos. 45, 47). Defendant Jones was
personally served on March 30, 2017 (ECF No. 46). Defendants
Williams, Burney, and Jones failed to timely answer or
otherwise respond to Plaintiff's complaint. Plaintiff
consequently moved for an entry of default on April 25, 2017
(ECF No. 52).
9, 2017, Defendants moved to set aside the entry of default
against them. (ECF No. 53.) Defendants then filed a motion
for extension of time to file their answer on May 16, 2017.
(ECF No. 54.) Attached thereto is Defendants' proposed
answer. (ECF No. 54-2.) Plaintiff has not responded to the
request to set aside the entry of default, but has moved to
amend his complaint (ECF Nos. 58, 59).
Motion to set aside entry of default
move to set aside the entry of default against them (ECF No.
53).Default has not been entered against
Defendants Williams, Burney, and Jones. Plaintiff properly
moved for default against them after the time for filing a
responsive pleading elapsed. Consequently, Plaintiff's
motions for default (ECF Nos. 32, 33, 52) as to Defendants
Williams, Burney, and Jones are granted. Default having been
entered against all Defendants, the Court now considers
whether that default should be set aside.
of the Federal Rules of Civil Procedure provides that a clerk
“must enter [a] party's default” when that
party “failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” Rule 55(c)
allows the court to “set aside an entry of default for
good cause[.]” Fed.R.Civ.P. 55(c). “‘Good
cause' is a mutable standard, varying from situation to
situation. It is also a liberal one-but not so elastic as to
be devoid of substance.” Compania Interamericana
Export-Import, S.A. v. Compania Dominicana de Aviacion,
88 F.3d 948, 951 (11th Cir. 1996). “In determining what
constitutes ‘good cause, ' courts have considered,
but are not limited to, factors such as whether the default
was willful, whether the defaulting party would have a
meritorious defense, and whether setting aside the default
would result in prejudice to the non-defaulting party.”
Annon Consulting, Inc. v. BioNitrogen HoldingsCorp.,
650 F. App'x 729, 732 (11th Cir. 2016). However,
“these factors are not ‘talismanic, ' and 
courts have examined other factors including whether the
public interest was implicated, whether there was significant
financial loss to the defaulting party, and whether the
defaulting party acted promptly to correct the
default.” Compania Interamericana, 88 F.3d at
951. “Whatever factors are employed, the imperative is
that they be regarded simply as a means of identifying
circumstances which warrant the finding of ‘good
cause' to set aside a default.” Id.
submitted declarations in support of their motion to set
aside the default showing that, after being properly served,
they each contacted a supervisor and were told that the
Complaint and accompanying documents would be forwarded to
the Georgia Department of Correction's (GDOC) legal
department. Sanford Decl. ¶ 3, ECF No. 53-2; Stephens
Decl. ¶ 3, ECF No. 53-3; Jones Decl. ¶¶ 4-7,
ECF No. 53-4; Burney Decl. ¶ 3, ECF No. 53-5;
Williams Decl. ¶ 3, ECF No. 53-6. Each defendant further
believed that he or she would be contacted if he or she
needed to take further action. Sanford Decl. ¶ 3;
Stephens Decl. ¶ 3; Jones Decl. ¶¶ 4-7; Burney
Decl. ¶ 3; Williams Decl. ¶ 3. Defendants did not
then hear from the Attorney General's Office until the
evening of May 3, 2017, when they learned that the filing
deadlines had passed. Sanford Decl. ¶ 4; Stephens Decl.
¶ 4; Jones Decl. ¶ 8; Burney Decl. ¶ 4;
Williams Decl. ¶ 4. Counsel represents that they did not
become aware of the case until May 3, 2017. Br. in Supp. of
Defs.' Mot. to Set Aside 3, ECF No. 53-1.
clear from the record in this case that Defendants did not
willingly default. To the contrary, Defendants and their
counsel agree that the failure to timely respond is due to
either an administrative error or a miscommunication on the
part of counsel's office. Br. in Supp. of Defs.' Mot.
to Set Aside 8; Sanford Decl. ¶ 4; Stephens Decl. ¶
4; Jones Decl. ¶ 8; Burney Decl. ¶ 4; Williams
Decl. ¶ 4. Defendants also assert that they have
meritorious defenses to Plaintiff's claims and that
setting aside the default will not prejudice Plaintiff.
Court agrees and finds that good cause exists to set aside
the default as to each Defendant. Plaintiffs motions for
default judgment (ECF Nos. 35, 44) are accordingly denied.
Defendants' motion for an extension of time to file an
answer (ECF No. 54) is granted and the clerk is ...