United States District Court, N.D. Georgia, Atlanta Division
REPORT AND RECOMMENDATION ON A MOTION FOR DEFAULT
S. ANAND UNITED STATES MAGISTRATE JUDGE
above-captioned action is before the Court on Plaintiff's
Motion for Default Judgment  and Defendant's Motion
for a New Trial . For the following reasons, the
undersigned RECOMMENDS that the Motion for a
New Trial  be construed as a motion to set aside default
under Rule 55(c), that it be GRANTED, and
that the Clerk's August 7, 2017 entry of default be
VACATED. The undersigned FURTHER
RECOMMENDS that Plaintiff's Motion for Default
Judgment  be DENIED as moot.
initiated this action on May 2, 2017 by filing a Complaint
 that named Kenneth Jackson, Kathy Woodruff, and
Collection Receivable Inc. (“CRI”) as Defendants.
See Compl. at 1. Plaintiff sought to recover damages
under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692, et
seq., and the Georgia Fair Business Practices Act
(“GFBPA”), O.C.G.A. § 10-1-390, et seq.
See Compl. ¶ 2. Plaintiff filed a Notice of
Settlement  on September 18, 2017 indicating that he had
settled with Woodruff and CRI, so Kenneth Jackson
(hereinafter, “Defendant”) is the only remaining
Defendant in this case.
to settling with CRI, on August 6, 2017, Plaintiff filed a
Motion for Default Judgment  against CRI and Defendant.
The Clerk entered a default against CRI and Defendant on
August 7, 2017. On September 20, 2017, the Court held a
hearing on Plaintiff's Motion for Default Judgment in
which it took the Motion under advisement and ordered the
Plaintiff to show cause why the facts alleged in the
Complaint were legally sufficient to establish
Defendant's personal liability. See Order .
The Court ordered Plaintiff to submit a brief by October 4,
2017, and set the deadline for Defendant's Response as
October 18, 2017, and the deadline for Plaintiff's Reply
as October 25, 2017. Id. Plaintiff timely filed a
“Brief Showing Cause”  (“Pl.
Br.”) on October 4, 2017. Defendant did not file a
responsive brief. On October 26, 2017, Defendant filed a
Motion for Extension of Time to Engage Another Attorney 
requesting an extension until November 1, 2017 to obtain
counsel on the grounds that he had engaged an attorney who,
at the last minute, told Defendant that he was unable to
respond to the motion. That same day, on October 26, 2017,
Defendant also filed a Motion for a New Trial  stating
that Defendant had engaged a lawyer and the lawyer failed to
indicated no opposition to the Motion for Extension .
See Notice . The Court therefore granted the
Motion for Extension  as unopposed on October 27, 2017.
See Order . Plaintiff did, however, file a
Response Opposing Defendant's Motion for New Trial 
(“Pl. Resp.”) on October 27, 2017.
today's date, the time for Defendant to obtain new
counsel and file a brief pursuant to the Order  has
passed, and no attorney has entered an appearance on
Defendant's behalf. The Court must therefore address the
pending motions without the aid of any counsel for Defendant,
and must treat the Defendant as a party who is still acting
document filed pro se is to be “liberally
construed.” Erikson v. Pardus, 551 U.S. 89, 94
(2007). In this case, although Defendant has requested a
“new trial” in his Motion , the Court finds
that based on the substance of Defendant's statements,
and the procedural posture of the case, Defendant's
motion should be construed as a motion to set aside default
under Rule 55(c) of the Federal Rules of Civil Procedure.
Cf. Prudential Ins. Co. of Am. v. Crouch, No.
CV-109-148, 2010 WL 5071392 at *2 n.5 (S.D. Ga. Dec. 7, 2010)
(“Given the substance of [Defendant's] filing and
her pro se status, the Court shall construe
[Defendant's] response as a motion to set aside
Rule 55(c), the Court may set aside a default for “good
cause.” “Good cause” is a “mutable
standard” that varies from situation to situation and
“is not susceptible to a precise formula.”
Compania Interamericana Export-Import, N.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.
1996). In determining whether “good cause”
exists, courts have considered factors including whether the
default was culpable or willful, whether setting aside the
default would cause undue prejudice to the opposing party,
and whether the defaulting party has presented a meritorious
defense. See Compania, 88 F.3d at 951; see also
Robinson v. Tomy Group Atlanta LLC, No.
1:14-cv-1467-LMM, 2015 WL 12860552 at *1 (N.D.Ga. Mar. 11,
2015) (May, J.). These factors are not “talismanic,
” however, and courts have examined a number of other
factors, including the public interest, whether there was
significant financial loss to the defaulting party, and
whether the defaulting party acted promptly to correct the
default after it was entered in the record.
Compania, 88 F.3d at 951; see also Dierschke v.
O'Cheskey, 975 F.2d 181, 184 (5th Cir. 1992).
consideration of the appropriateness of setting aside a
default is the fact that defaults are not favored in federal
court and trials on the merits are the preferred method for
resolving disputes.” Ritts v. Dealers Alliance
Credit Corp., 989 F.Supp. 1475, 1480 (N.D.Ga. 1997)
(citing Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.
1981). The Eleventh Circuit has instructed that
“[e]ntry of judgment by default is a drastic remedy
which should be used only in extreme situations” and
that courts “must respect the usual preference that
cases be heard on the merits rather than resorting to
sanctions that deprive a litigant of his day in court.”
Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1309, 1316-17 (11th Cir. 2002) (quoting Wahl v.
Mclver, 773 F.2d 1169, 1174 (11th Cir. 1985)); see
also Varnes v. Glass Bottle Blowers Assoc., 674 F.2d
1365, 1369 (11th Cir. 1982) (default judgments are
disfavored, and courts prefer adjudication on the merits).
“[A]lthough a district court may enter default judgment
against a defendant who has failed to respond to a complaint
against him, default judgments should only be entered if
exceptional circumstances exist that prejudice the
plaintiff.” Fry v. Hillsborough Cnty. Sch.
Bd., 190 F. App'x 810, 817 (11th Cir. 2006).
case, Defendant has submitted exhibits to his Motion
appearing to show communications with an attorney about this
dispute. See Def. Mot.  at 2-5. The exhibits
depict screenshots of a text-message conversation dated May
24, 2017 between Defendant and Wascar Aracena, an individual
whom Defendant asserts is a lawyer based in Duluth, Georgia.
See Def. Mot. Defendant apparently texted Aracena an
image of the summons he received in this case. Def. Mot. at
2. Aracena sent back messages that included the statements
“I'm here brother” and “I got u.”
Id. Thus, in his Motion, Defendant states, “I
did in fact speak with and retain a lawyer and he failed to
respond per our May 24th 2017 agreement.” Id.
at 1. In other words, interpreted liberally, Defendant argues
that good cause exists to set aside the default in this case
because after receiving the summons, Defendant believed he
had “retained” Aracena as an attorney and
believed that Aracena was handling the lawsuit, so the blame
for Defendant's lack of response to the Complaint lies
with Aracena and not with Defendant.
Defendant indicated at the oral argument hearing on September
20, 2017 that he believes Plaintiff wrongly named his company
as a defendant in this lawsuit due to confusing the company
with another company by a similar name. Defendant's text
conversation with Aracena on May 24, 2017, contains a similar
assertion: Defendant texted Aracena, “They actually
suing my collection agency but there is another company with
same name that is the actual company they want.” Def.
Mot. at 2.
Court finds, based on an examination of the principal factors
under Compania, that Defendant has carried his
burden under Rule 55(c) to establish good cause to set aside
the default. As to the first factor, the culpableness or
wilfulness of the default, Defendant has shown that, while he
did receive the summons and was aware of the need to respond,
he believed he had an attorney who would respond to
Plaintiff's Complaint, and therefore did not
intentionally fail to respond to the suit. Defendant ...