United States District Court, S.D. Georgia, Dublin Division
FREDERICK D. GREEN, Plaintiff,
JAMES BLAIR and JAMAL FOREMAN, Lieutenant, Defendants.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Rogers State Prison in Reidsville, Georgia,
commenced the above-captioned case pursuant to 42 U.S.C.
§ 1983. Before the Court are Defendants' motions to
set aside default, (doc. nos. 31, 41), and Plaintiff's
motion to dismiss Defendant Foreman's declaration and
answer, (doc. no. 38.) For the reasons set forth below, the
Court REPORTS and
RECOMMENDS Defendants' motions be
GRANTED, (doc. nos. 31, 41), and
Plaintiff's motion be DENIED, (doc. no.
MOTIONS TO SET ASIDE DEFAULT
United States Marshals Service served Defendant Blair on
October 1, 2018, (doc. no. 20), and Defendant Foreman on
October 22, 2018, (doc. no. 22). On December 20, 2018, the
Clerk of Court entered default against Defendants for failing
to timely respond to Plaintiff's complaint. (Doc. nos.
26, 27.) On January 3, 2019, Defendant Foreman filed the
present motion to set aside default. (Doc. nos. 30, 31.) In
response, Plaintiff filed an objection to Defendant
Foreman's motion, a motion to dismiss the declaration and
answer as untimely, and a declaration in support of his
motion. (Doc. nos. 37, 38, 39.) On February 12, 2019,
Defendant Blair filed his motion to set aside default, to
which Plaintiff responded on March 4, 2019. (Doc. nos. 41,
Fed.R.Civ.P. 55(a), a party is entitled to entry of default
when it has shown an adverse party has failed to plead or
otherwise defend against a complaint through affidavit or
otherwise. However, the Court may set aside an entry of
default for good cause under Fed.R.Civ.P. 55(c). Murphy
v. Farmer, 176 F.Supp.3d 1325, 1340 (N.D.Ga. 2016). This
standard considers whether the default was “culpable or
willful, whether setting it aside would prejudice the
adversary, and whether the defaulting party presents a
meritorious defense.” Compania Interamericana
Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88
F.3d 948, 951 (11th Cir. 1996). Other factors include the
public interest, significance of financial loss to the
defaulting party, and whether the defaulting party acted
promptly to correct the default. Id.
Foreman states he was terminated by the Georgia Department of
Corrections (“GDC”) prior to being personally
served on October 23, 2018. (Doc. no. 31-1, pp. 2-3.)
Defendant Foreman met the process servicer at a gas station
in order for service to be affected. (Id. at 3.)
Afterward, Defendant Foreman called Johnson State Prison
(“JSP”), and an employee told him they could not
help him because of his termination. (Id.) Defendant
Foreman then contacted private counsel, who represents him in
a related employment action, and informed him about the
lawsuit. Defendant Foreman did not understand private counsel
did not represent him for purposes of this suit.
(Id.) Defendant Foreman did not receive any other
filings related to the case. (Id.) GDC hired Ms.
McGovern as outside conflict counsel on December 27, 2018,
and, on December 28, 2018, Defendant Foreman contacted Ms.
McGovern immediately upon receipt of her communication to
him. (Id. at 2, 4.) On January 3, 2019, Defendant
Foreman filed his motion to set aside default with an
attached proposed answer. (Doc. no. 31, 31-2.)
argues Defendant Foreman is not entitled to have default set
aside because he should have known to retain counsel but
chose not to do so, despite being personally served with the
complaint. (Doc. no. 37-2, pp. 1-2.) Plaintiff contends he
will be greatly prejudiced by setting aside default, citing
“the psychological and monetary cost of litigating for
an indigent prisoner.” (Id. at 2-3.) Plaintiff
also states the Attorney General's Office was aware of
the status of this case because he served that office with
his previous filings. (Id. at 3.) Plaintiff asks the
Court to enter default judgment for $37, 500 in punitive
damages against Defendant Foreman, $62, 500 in punitive
damages against Defendant Blair, and an injunction
prohibiting Defendants from beating other inmates in the
future. (Id.) Finally, in his motion to dismiss
Defendant Foreman's declaration and answer attached to
his motion to set aside default, Plaintiff argues Defendant
Foreman's response is “untimely, procedurally
defaulted, and should be dismissed.” (Doc. no. 38-2, p.
Foreman's motion to set aside default should be granted
for the following reasons. First, there is no indication
Defendant Foreman's failure to timely answer was willful.
After voluntarily meeting the process server to allow
personal service to be effected, Defendant Foreman contacted
JSP after being served to attempt to obtain counsel. (Doc.
no. 31-1, pp. 2-3.) Once JSP effectively denied the
representation request, he consulted his private counsel
about the matter. (Id. at 3.) However, Defendant
Foreman misunderstood private counsel's representation of
him did not extend to this case, and he believed he had done
all he needed to do. (Id. doc. nos. 31-2, p. 2.)
Defendant Foreman immediately reached out to Ms. McGovern
after receiving her mail and assisted her in responding to
Plaintiff's complaint. (Doc. no. 31-1, pp. 4.) Thus,
Defendant Foreman's failure to respond was not caused by
willfulness, dilatory motive, or bad faith.
Plaintiff has not been prejudiced by Defendant Mosley's
late filing and will not suffer financial loss as a result.
While Plaintiff argues he has suffered psychological and
monetary costs due to the default, there is no evidence
Plaintiff or his case has been prejudiced by the few months
of delay. While Plaintiff contends he served some of his
filings on the Attorney General's Office, Defendant
Foreman was not made aware of these filings. Furthermore,
there is a strong policy of determining cases on their merits
and a corresponding disfavor of defaults. In re Worldwide
Web Systems, Inc., 328 F.3d 1291, 1295 (11th Cir. 2003).
Because good cause exists for setting aside any default,
Defendant Foreman's motion should be
GRANTED and default be set aside, (doc. no.
31), and Plaintiff's motion to dismiss and request for
default judgment be DENIED, (doc. no. 38).
Blair states he was terminated by GDC prior to being served
on October 1, 2018, and did not understand the need to
request counsel from GDC to defend the lawsuit. (Doc. no.
41-1, pp. 2.) Defendant Blair mistakenly believed he did not
need to respond in this case because he is also being
criminally prosecuted in relation to Plaintiff's
allegations in the complaint. (Id.) On December 20,
2018, after learning of the default entry against Defendant
Blair, the Attorney General's Office appointed Matthew R.
LaVallee to represent him on December 27, 2018. (Id.
at 3.) Initial attempts to locate Defendant Blair were
unsuccessful until, on February 5, 2019, an investigator was
able to contact him. (Id. at 3.) Since then,
Defendant Blair has actively assisted Mr. LaVallee in filing
the motion to set aside default. (Id.)
Blair's motion should be granted for reasons similar to
those given for Defendant Foreman above. First, there is no
indication Defendant Blair's failure was caused by
willfulness, dilatory motive, or bad faith. While Defendant
Blair should have obtained clarification about his need to
obtain representation and respond to Plaintiff's
complaint, the failure appears to have been caused by a
genuine misunderstanding based on the ongoing criminal
proceedings and was not a bad faith attempt to avoid engaging
in this litigation. Furthermore, Plaintiff has not been able
to show he was prejudiced by the delay.
argues in response Defendant Blair's motion is an
untimely objection to the Court's December 20, 2018
Report and Recommendation recommending denial of
Plaintiff's motion for an injunctive order and Defendant
can only challenge the ruling before the Eleventh Circuit.
(Doc. no. 42.) Plaintiff's response is meritless.
Accordingly, because of the strong policy in favor of
deciding cases on the merits, and because good ...