United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Dooly State Prison in Unadilla, Georgia,
commenced the above-captioned case pursuant to 42 U.S.C.
§ 1983 regarding events allegedly occurring at Johnson
State Prison (“JSP”) in Wrightsville, Georgia.
Before the Court are Defendants Pullins, Hurst, and
Smith's motions to set aside default, (doc. nos. 28, 32),
and Plaintiff's motion for default judgment, (doc. no.
29). For the reasons set forth below, the Court
REPORTS and RECOMMENDS
Defendants' motions be GRANTED,
Plaintiff's motion and requests for sanctions be
DENIED, and the CLERK be
DIRECTED to enter default against Defendant
16, 2018, the Court directed the United States Marshals to
effect service of process on Defendants. (Doc. no. 11.) In
accordance with the Court's Order directing service, the
Marshals mailed a copy of the amended complaint and the July
16th Order by certified mail to Defendants Pullins, Hurst,
and Smith on August 17, 2018, and to Defendant Timmons on
August 22, 2018, requesting Defendants waive formal service
of summons. (Doc. nos. 11-6, 11-7.)
September 5, 2018, Defendant Hurst waived formal service of
summons and was required to answer or otherwise respond to
Plaintiff's amended complaint by October 16, 2018. (Doc.
no. 17.) The remaining Defendants failed to waive service.
Thus, the Court directed the Marshals to personally serve
Defendants Smith, Pullins, and Timmons. (Doc. no. 18.) On
October 24, 2018, the Marshals executed personal service on
Defendants Smith, Pullins, and Timmons. (Doc. no. 25.) Their
deadline to respond to Plaintiff's amended complaint was
November 14, 2018. To date, no Defendant has answered or
otherwise responded to Plaintiff's amended complaint.
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
moves for the Court to enter default judgment against
Defendants Hurst and Pullins only, arguing (1) all answers in
the case were due by November 14, 2018; and (2) default was
entered against Defendants by the Clerk of Court. (Doc. no.
29.) Plaintiff simultaneously filed a Declaration for Entry
of Default with motion for default judgment. (Doc. no. 30.)
Federal Rule of Civil Procedure 55 contemplates two steps to
obtaining judgment by default. First, the party seeking
default must have the Clerk enter default by submitting an
“affidavit or otherwise” showing the defaulting
party “has failed to plead or otherwise defend.”
Fed.R.Civ.P. 55(a). Thereafter, the moving party may seek
entry of default judgment under Rule 55(b). Under Rule
55(b)(1), the Clerk is directed to enter default judgment
upon request when: (1) the claim is for a sum certain, or for
a sum that can by computation be made certain, which is
supported with an affidavit showing the amount due; (2) the
default is for want of appearance; and (3) the defendant is
neither an infant nor an incompetent person.
Plaintiff's argument to the contrary, there was no prior
entry of default by the Clerk before Plaintiff filed his
motion for default judgment or Declaration for Entry of
Default. Even now, the Clerk has not entered a default
against any Defendant. Because Defendants have not filed a
response within the timeline established by Rule
12(a)(1)(A)(i), Defendants are in default pursuant to Rule
55(a). (See also doc. no. 30.) However, as explained
in § III., infra, the Court sets aside default
for Defendants Hurst, Pullins, and Smith and
DIRECTS the CLERK to enter
default only against Defendant Timmons.
MOTION TO SET ASIDE DEFAULT
April 23, 2019, Defendants Hurst and Pullins filed a motion
to set aside default, including a declaration from both
Defendants explaining why they did not timely answer. (Doc.
no. 28.) On May 9, 2019, Defendant Smith filed his motion to
set aside default. (Doc. no. 32.) 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.
Hurst provided a declaration stating the following pertinent
facts. (Hurst Decl., Doc. no. 28-2.) Defendant Hurst was
employed by JSP during the events alleged in the complaint
until November 2017 and is currently working in McIntyre,
Georgia. (Id. ¶ 2.) He did not receive the
wavier of service mailed by the Marshals Service because he
was not employed at JSP at the time of mailing. (Id.
¶ 3.) JSP personnel then returned the waiver of service
form, prompting the Marshals Service to mail the waiver to
Defendant Hurst's address in August 2018. (Id.
¶ 4.) Upon receiving the waiver at his home address,
Defendant Hurst declared he did not understand the waiver of
service document sent to him, but he signed and returned the
forms by September 2018 anyway. (Id. ¶ 5.)
Defendant Hurst believed he was returning the proper
documents to confirm representation by the State of Georgia,
which, as he believed, would result in a defense attorney
being assigned to him. (Id.) He now understands he
should have filed an answer by October 16, 2018, but he
declares he did not intentionally miss or ignore any
deadlines or attempt to avoid service. (Id.)
Hurst further declares he now understands the process for
notifying the Georgia Department of Corrections
(“GDC”) to have an attorney appointed.
(Id. ¶ 6.) He spoke with his attorney from the
Attorney General's Office for the first time shortly
before making his declaration on April 18, 2019.
(Id. ¶ 7.) It was not until then did he learn
his case was in default for failing to respond to
Plaintiff's complaint. (Id.) In support of his
motion to set aside default, Defendant Hurst declares he has
a meritorious defense and denies Plaintiff's allegations.
(Id. ¶ 9.)
argues Defendant Hurst is not entitled to have default set
aside because he willfully ignored the deadlines and has not
shown good cause to set aside default. (Doc. no. 31.)
Plaintiff supports his arguments by stating Defendant Hurst
was sued in a previous lawsuit filed by Plaintiff, is a
correctional officer familiar with GDC policies and steps to
obtain counsel, and had over half a year to respond to
Plaintiff's complaint. (Id.) Plaintiff also asks
the Court to impose sanctions against Defendant Hurst for bad
faith in failing to respond and declaring he did not know how
to proceed upon receiving the wavier of service.
(Id.) Plaintiff even asks for Defendant Hurst to be
prosecuted for perjury. (Doc. no. 33.) Plaintiff states he
has been prejudiced by the delay because documents in his
possession were lost during a shakedown on ...