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Ludy v. Constance Pullins

United States District Court, S.D. Georgia, Dublin Division

July 23, 2019

MITCHELL LUDY, Plaintiff,
v.
CONSTANCE PULLINS, Nurse; CERT SGT. HURST; CERT OFC. SMITH; and CERT OFC. TIMMONS, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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 Timmons.

         I. BACKGROUND

         On July 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.)

         On 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.

         II. PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

         Plaintiff 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.

         Despite 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.

         III. MOTION TO SET ASIDE DEFAULT

         On 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. Id.

         A. Defendant Hurst

         Defendant 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.)

         Defendant 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.)

         Plaintiff 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 ...


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