United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT.
Bibb County School District (“BCSD”) has moved
for default judgment as to its claims against Defendants
Harold Knowles and Knowles & Randolph, P.A. (the
“Knowles Defendants”). Doc. 343. In response, the
Knowles Defendants have moved to set aside the Clerk's
entry of default, attaching to their motion a proposed answer
to BCSD's second amended complaint. Docs. 345; 345-1;
For the following reasons, BCSD's motion is
DENIED and the Knowles Defendants'
motion is GRANTED.
a complex civil matter that has been pending since December
2016. Stays have been entered because of parallel criminal
proceedings. The facts of this case are well laid out in the
Court's previous Order denying the Knowles
Defendants' motion to dismiss. Doc. 331. In a nutshell,
BCSD, in its 549-paragraph second amended complaint, alleges
that the Defendants engaged in multiple schemes to defraud
BCSD. See generally Doc. 162. Relevant for purposes
of ruling on the parties' motions, the Order denying the
motion to dismiss was entered on April 8, 2019 at 6:10 p.m.
Doc. 331. Pursuant to Federal Rule of Civil Procedure
12(a)(4), when a court denies a Rule 12(b)(6) motion,
“the responsive pleading must be served within 14 days
after notice of the court's action.” The Knowles
Defendants did not file their answer within fourteen days of
having notice of the Court's denial of their motion.
Consequently, BCSD filed an application with the Clerk for
entry of default against the Knowles Defendants, which the
Clerk granted on April 24, 2019. Docs. 340; 341. The
following day, the Knowles Defendants moved to set aside the
entry of default and attached a proposed answer. Docs. 345;
Knowles Defendants do not contest that they did not timely
file their answer. Instead, their counsel, rather, his legal
assistant, steps up to take the fall for the delay in filing.
See generally Doc. 345. According to defense
counsel, his legal assistant left work early on April 8, 2019
to be with her ill daughter who had recently been released
from the hospital. Id. at 3. Though she
“returned to the office fulltime on April 10, 2019,
” when the Knowles Defendants had 12 days to file their
answer, the legal assistant “got behind on calendaring
in this case, and others.” Id. at 4. In her
affidavit, the legal assistant states that between
April 10 and April 17, she drove her daughter to the
doctor's appointments for wound dressing. Doc. 353-5
¶ 11. She also states that on April 9 and 10, she worked
on producing discovery responses as well as prepared for the
April 10 status conference, which included producing
“over 4717 bate stamp documents.” Id.
¶ 13. In short, the Knowles Defendants did not timely
file their answer because their counsel's legal assistant
was preoccupied with other issues and failed to place the due
date on the “tickler system.” Id. ¶
12. The Knowles Defendants say this even though their brief
seems to establish that they would not have filed a timely
answer even had the legal assistant “calendared”
something. That is because their lawyer thought he had 30,
rather than 14, days to file the Knowles Defendants'
answer. Doc. 353 at 4.
party's request, and following the Clerk's entry of
default, the Court may enter a default judgment against a
defendant who has failed to plead or otherwise defend claims.
Fed.R.Civ.P. 55(a), 55(b)(2). Entry of default judgment is
committed to the discretion of the Court. Hamm v. Dekalb
Cty., 774 F.2d 1567, 1576 (11th Cir. 1985) (citations
omitted). “The [C]ourt may set aside an entry of
default for good cause, ” and the Court may also deny a
motion for default judgment and grant a request to file an
untimely answer for good cause. Fed.R.Civ.P. 55(c); see
Perez v. Wells Fargo, N.A., 774 F.3d 1329, 1338 (11th
Cir. 2014) (“Perez was entitled to have her motion to
file an out-of-time answer to the counterclaim considered
under our ‘good cause' standard applicable to
setting aside a default rather than under the ‘more
rigorous,' ‘excusable neglect'
standard.”) (citation omitted). The defaulting party
bears the burden of establishing good cause. African
Methodist Episcopal Church, Inc. v. Ward, 185 F.3d 1201,
1202 (11th Cir. 1999).
cause is a mutable standard, varying from situation to
situation, ” but factors for courts to consider include
the following: (1) whether the default was culpable or
willful; (2) whether setting the default aside would
prejudice the adversary; (3) whether the defaulting party
presents a meritorious defense; and (4) whether the
defaulting party acted promptly to correct the default.
Compania Interamericana Export-Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.
1996) (quotation marks and citations omitted). Courts should
not find that good cause exists if the defaulting party
“demonstrates an intentional or willful disregard of
the judicial proceedings.” Perez, 774 F.3d at
1337 n.7. In light of the Eleventh Circuit's
“strong policy of determining cases on their merits,
” however, default judgments “are generally
disfavored.” Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1244-45 (11th Cir. 2015) (quotation marks and
makes several arguments why the Knowles Defendants have
failed to establish good cause. First, it argues that the
Knowles Defendants' blaming their counsel's legal
assistant for their failure to timely file an answer is not a
plausible excuse because (1) there is nothing in the record
to suggest that the attorneys took action to ensure that the
answer was timely filed; and (2) the timeline of events shows
the legal assistant was working full time during 12 of the 14
days of the response period. Doc. 367 at 2-3. BCSD also
points out that defense counsel's admitted ignorance of
the Federal Rules of Civil Procedure-thinking he had 30 days
to file an answer instead of 14-is not a sufficient excuse to
set aside the default. Id. at 3 n.4. It is difficult
to find fault with these arguments. Certainly, defense
counsel cannot hide behind his legal assistant and skirt his
legal obligations to his client. His clients retained him to
be their counsel, not his legal assistant. Nor is it
acceptable that defense counsel lacks familiarity with the
rules governing practice in federal court, though, as
evidenced in the Court's previous orders (for example,
see Docs. 329 (defense counsel not knowing that a
counterclaim cannot relate back under Rule 15 to the date
BCSD filed its initial complaint); 336 (defense counsel not
moving for a protective order under Rule 26 regarding his
client's deposition notice)), reminding defense counsel
of his need to be familiar with federal procedure is an
exercise in futility.
the poor excuses provided by defense counsel, the Court finds
good cause under the “more forgiving Rule 55(c)
standard as opposed to the more exacting Rule 6(b)(1)(B)
standard” for “excusable
neglect.” Perez, 774 F.3d at 1339. It is
clear from the record that the Knowles Defendants'
failure to timely file their answer was not “willful or
contumacious.” Id.; Compania, 88 F.3d
at 951-52 (noting that a default is willful when the litigant
displays “either an intentional or reckless disregard
for the judicial proceedings” by failing to obey a
court order when “given ample opportunity to
comply”). The day after the Clerk entered default, the
Knowles Defendants moved to set aside that entry and attached
a proposed answer. That prompt action to cure the default
demonstrates that the delay was not willful. Compare
Annon Consulting, Inc. v. BioNitrogen Holdings Corp.,
650 Fed.Appx. 729, 732 (11th Cir. 2016) (noting that the
default was willful when defendant knew of “clerk's
initial entry of default and still failed to file a
responsive pleading”), with Auto Owners Ins. Co. v.
Sapp, 2017 WL 6210317, at *2 (M.D. Ga. Jan. 10, 2017)
(finding that the default was not willful when “both
parties acted promptly to cure”). Moreover, the record
shows that leading up to the deadline to file their answer,
the Knowles Defendants actively participated in discovery.
See Doc. 336 at 1 (ordering the Knowles Defendants
to provide complete responses to BCSD's written discovery
requests by April 15, 2019). The record also shows that only
the Knowles Defendants' counsel and his legal assistant
were responsible for the untimely filed response; there is no
evidence to suggest that the Knowles Defendants themselves
were responsible. See Perez, 774 F.3d at 1338
(considering whether the party or the party's attorney
was responsible for the failure to timely answer). Again, to
be clear, the Court is not condoning defense counsel's
lack of familiarity with federal rules or his attempt to use
his legal assistant as the scapegoat. But, applying the more
liberal Rule 55(c)'s standard, the Court rejects
BCSD's argument of no good cause based on the excuses
also contends that the Knowles Defendants have failed to
present a meritorious defense. Docs. 348 at 7; 367 at 4. To
show a meritorious defense, “a defendant need only show
a ‘hint of a suggestion.'” Buonocore v.
Credit One Bank, N.A., 2014 WL 6620623, at *2
(citing Moldwood Corp. v. Stutts, 410 F.2d 351, 352
(5th Cir. 1969)). A defaulting party's mere
“bald assertions” that it had a meritorious
defense is not sufficient. Sherrard v. Macy's Sys.
& Tech. Inc., 724 Fed.Appx. 736, 739 (11th Cir.
2018); see Wehrs v. Wells, 688 F.3d 886, 890-91 (7th
Cir. 2012) (noting that conclusory general denial or bare
legal conclusions fail to establish a meritorious defense for
the purpose of setting aside a default judgment); see
also Jenkens & Gilchrist v. Groia & Co., 542
F.3d 114, 120-22 (5th Cir. 2008) (noting that litigants must
present “specific facts that would constitute a
defense” to establish a meritorious defense for the
purpose of setting aside a default judgment).
the Knowles Defendants claim they “have meritorious
defenses as evidenced by the pleadings in support of its
motion to dismiss and the proposed answer filed with the
instant motion, ” many of the defenses they reference,
i.e., contractual defenses and issues of standing,
are either without merit or inapplicable to the case with
respect to the Knowles Defendants. Doc. 353 at 6. In
addition, other than their “bald assertions, ”
including their conclusory statement that they deny
“knowledge of the alleged conspiratorial conduct of
Cliff[a]rd Whitby and other defendants, ” the Knowles
Defendants provide no specifics for the Court to determine
whether they have any meritorious defense. See Id.
The Knowles Defendants also cite no authority on this factor.
Nevertheless, a meritorious defense is just one factor a
court may evaluate when determining whether good cause exists
to set aside the clerk's entry ...