United States District Court, S.D. Georgia, Waycross Division
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants Swords and Stewart's
Motions to Set Aside Default. (Docs. 62, 64.) Defendants
Swords and Stewart were each personally served by the United
States Marshals Service on December 13, 2016, and January 6,
2017, respectively. (Docs. 53, 54, 56.) By operation of law,
both Defendants Swords and Stewart have entered into default
for not timely answering or otherwise defending against
Plaintiff's Complaint. Plaintiff, however, has neither
moved for an entry of default nor responded to the present
Motions. In addition, the Clerk of Court has yet to enter
Defendants Swords and Stewart's respective defaults.
reasons set forth below, the Court GRANTS
Defendant Swords and Stewart's Motions to Set Aside
Default, (docs. 62, 64), and SETS ASIDE each
Defendant's default. Defendants Swords and Stewart may
proceed in defending against this action on the merits.
March 4, 2016, I conducted the requisite frivolity review of
Plaintiff's Complaint and ordered service to be effected
on Defendants Swords and Stewart, among others. (Docs. 11,
12.) On April 6, 2016, several Defendants timely returned
service waivers but not Defendants Swords and Stewart.
(See Docs. 18-24, 48, 49.) Thereafter, in light of
their failure to waive service, I ordered the United States
Marshals Service to personally serve Defendants Swords and
Stewart, among others, (doc. 53), and each of these
Defendants was, in fact, personally served, (docs. 54, 56;
see also doc. 62-2, p. 2; doc. 65-1, p. 2). After
being personally served, neither of these Defendants filed an
answer or otherwise defended against Plaintiff's cause of
Swords avers that, after being personally served, he
contacted Ware State Prison (“WSP”), his former
employer and where the alleged cause of action arose, about
this matter. (Doc. 62-2, p. 2.) He was told that an attorney
was representing certain current and former WSP employees in
this case but that he needed to complete some paperwork as to
his representation; Defendant Swords never completed this
paperwork. (Id. at pp. 2-3.) Defendant Swords
contends this was an “oversight” and not intended
to avoid service or cause delay. (Id.) Defendant
Swords further avers that he has not willfully ignored any
deadlines and that he has a meritorious defense to this
Stewart avers that, after being personally served, he did not
contact WSP or the Georgia Department of Corrections because
he was not aware that he needed to do so. (Doc. 65-1, p. 2.)
Defendant Stewart also never completed any paperwork as to
his representation in this matter due to an
“oversight” on his part, but he contends that he
has not intentionally avoided service or endeavored to delay
this case. (Id. at p. 3.) Defendant Stewart further
avers that he has not willfully ignored any deadlines and
that he has a meritorious defense to this action.
Defendants Swords and Stewart argue their default should be
set aside because it arose out of a misunderstanding of their
obligations in defending against this action. (Doc. 62-1, pp.
4-5; Doc. 65, pp. 4-5.) Furthermore, counsel for these
Defendants avers that “inadvertence and
oversight” by her caused them to enter into default
because she did not discern their being served, despite the
constructive notice imparted by the docket, until the
Court's March 20, 2018 Report and Recommendation which
highlighted this issue. (Id.) In addition to not
being willful or intentional, Defendants Swords and Stewart
contend their default should be set aside because any
prejudice to Plaintiff in doing so will only be minimal, as
there has been no answer filed or discovery yet conducted.
Standard for Setting Aside a Default
defendant who does not timely answer or otherwise defend
against a cause of action brought against him falls into
default. Fed. R. Civ P. 55(a); see also Fed.R.Civ.P.
12 (defendants have 21 days to answer or defend after being
personally served). Under Rule 55, “the court may set
aside an entry of default for good cause” prior to a
default judgment being entered.” Fed.R.Civ.P. 55(c);
see Jones v. Harrell, 858 F.2d 667, 669 (11th Cir.
1988) (explaining that Rule 55(c) applies when a judgment has
not been entered and provides the court discretion to set
aside a default, while the more stringent provisions of Rule
60(b) apply only when a judgment has been entered). While the
“good cause” standard varies depending on the
facts of a particular case, general guidelines are frequently
applied. Compania Interamericana Exp.-Imp., S.A. v.
Compania Dominicana, 88 F.3d 948, 951 (11th Cir. 1996)
determining whether there is “good cause” to set
a default aside, courts have considered: “(a) whether
the default was culpable or willful; (b) whether setting it
aside would prejudice the adversary; (c) whether the
defaulting party presents a meritorious defense; (d) whether
there was significant financial loss to the defaulting party;
and (e) whether the defaulting party acted promptly to
correct the default.” SEC v. Johnson, 436
Fed.Appx. 939, 945 (11th Cir. 2011) (per curiam) (citing
Compania, 88 F.3d at 951-52). Importantly, courts in
the Eleventh Circuit “view defaults with
disfavor” due to the “strong policy of
determining cases on their merits.” In re Worldwide
Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003)
(citations omitted). However, where “a party willfully
defaults by displaying either an intentional or reckless
disregard” for judicial proceedings, the court may
properly deny a motion to set aside the default.
Compania, 88 F.3d at 951-52 (citation omitted).
Defendant Swords' Motion to Set Aside Default (Doc.
case, Defendant Swords has established good cause to set
aside his default. The Court finds that Defendant Swords'
failure to answer or defend was neither culpable nor willful.
While Defendant Swords could have more diligently ensured his
representation in this matter, he has shown that he was no
longer an employee of WSP at the time of service and that he
contacted WSP officials about this matter, (doc. 62-2, pp.
2-3). Additionally, his counsel shoulders the blame for his
default, (doc. 62-1, p. 5 & n.4), and her slight error,
which she acted promptly to remedy, should not deprive
Defendant Swords of an opportunity to defend this case on the
merits. Fla. Physician's Ins. Co. v. Ehlers, 8
F.3d 780, 783 (11th Cir. 1993) (per curiam). Moreover,
Defendant Swords disputes the allegations made against him by
Plaintiff and indicates that he may have other meritorious