United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Christopher L. Ray United States Magistrate Judge.
pro se and in forma pauperis, plaintiff
Mason Burbank's 42 U.S.C. § 1983 complaint against
Officer Rhett Lermy was approved for service (docs. 9 &
11) and a waiver of service was returned executed by Officer
Lermy on March 8, 2019 (doc. 12 at 2). Lermy, however, failed
to timely answer the Complaint, so a Clerk's entry of
default was docketed. Doc. 15 (clerk's entry of default
against Officer Lermy filed April 10, 2019). More time
passed, and plaintiff timely sought entry of default
judgment. Doc. 17 (signature-filed April 15, 2019). Lermy has
answered, albeit out of time, arguing that default should be
set aside because his failure to respond was neither willful
nor culpable and he has acted promptly to cure the default,
he has a meritorious defense, and setting aside the default
would not prejudice the plaintiff. Doc. 18 at 2 (explaining
that Lermy had initially been - incorrectly - advised that
Liberty County would represent him and that the delay was due
to this erroneous advice by a Liberty County jail
administrator). Plaintiff, of course, opposes and moves for
default judgment. Docs. 17 & 19.
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.
executed the waiver of service believing the County would
represent him and, when he learned that he was both
unrepresented and in default, promptly moved to remedy both
deficiencies. Thus, Lermy's failure to timely respond was
not caused by willfulness, dilatory motive, or bad faith. Nor
will plaintiff suffer any prejudice or financial loss as a
result of Lermy's late filing. Furthermore, there is a
strong policy of determining cases on their merits and a
corresponding disfavor of defaults. Perez v. Wells Fargo
N.A., 774 F.3d 1329, 1332 (11th Cir. 2014); In re
Worldwide Web Systems, Inc., 328 F.3d 1291, 1295 (11th
Cir. 2003); see Wahl v. McIver, 773 F.2d 1169, 1174
(11th Cir. 1985) (“[W]e 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.”); Ritts v. Dealers Alliance Credit
Corp., 989 F.Supp. 1475, 1480 (N.D.Ga. 1997)
(“defaults are not favored in federal court and trials
on the merits are the preferred method for resolving
disputes.”). Plaintiff, despite his consternation at
this “intolerable” result, doc. 19 at 2, has not
pointed to any fact that overwhelms the preference for
resolution on the merits.
Lermy's motion to set aside entry of default (doc. 18)
should be GRANTED and Burbank's motion
for default judgment (doc. 17) should be
DENIED. Further, a stay of the deadline for
Lermy to respond to plaintiff's complaint, until the
District Judge takes final action on the R&R, is
appropriate. Defendant is thus ORDERED to
file his response to the Complaint within seven days of entry
of the District Judge's written Order.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).