Thomas v. Derryberry et al
Filing
42
ORDER: Defendants Shane Derryberry, Josh Caldwell, and Jeff McDougal's Motion to Set Aside Default and Motion to Quash Service of Process (Doc. # 34 ) is GRANTED. The Clerk's Defaults against Derryberry, Caldwell, and McDougal (Doc. ## 31 - 33 ) are SET ASIDE. The returns of service purporting to prove service of process as to Derryberry, Caldwell, and McDougal (Doc. ## 23 - 25 ) are QUASHED. As the May 22, 2017, deadline for completing service of process has expired and service has not been completed as to Derryberry, Caldwell, and McDougal, Thomas is directed to show cause by June 16, 2017, why the action against Derryberry, Caldwell, and McDougal should not be dismissed pursuant to Rule 4(m). Failure to do so will result in dismissal of the action against Derryberry, Caldwell, and McDougal without further notice. Signed by Judge Virginia M. Hernandez Covington on 6/6/2017. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DERREL LEONARD THOMAS,
Plaintiff,
v.
Case No. 8:16-cv-3482-T-33AEP
SHANE DERRYBERRY, et al.,
Defendants.
/
ORDER
This matter comes before the Court upon consideration of
Defendants
Shane
Derryberry,
Josh
Caldwell,
and
Jeff
McDougal’s Motion to Set Aside Default and Motion to Quash
Service of Process (Doc. # 34), filed on May 23, 2017. Pro se
Plaintiff
Derrel
Leonard
Thomas
filed
a
document
titled
“Plaintiff Derrel Leonard Thomas, Pro-se, Objects to Set
Aside Default and to Quash Service of Process and Memorandum
of Law,” which the Court construes as Thomas’s response in
opposition, on June 1, 2017. (Doc. # 39). For the reasons
stated, the Court grants Derryberry, Caldwell, and McDougal’s
Motion.
Discussion
A.
Setting Aside Clerk’s Default
A district court can set aside a clerk’s default “for
good cause shown.” Fed. R. Civ. P. 55(c). “‘Good cause’ is a
mutable standard, varying from situation to situation. It is
also a liberal one – but not so elastic as to be devoid of
substance.” Compania Interamericana Export-Import, S.A. v.
Compania Dominicana de Aviacion, 88 F.3d 948, 951-52 (11th
Cir. 1996).
The Eleventh Circuit has noted that “defaults are seen
with disfavor because of the strong policy of determining
cases on their merits.” Fla. Physician’s Ins. Co. v. Ehlers,
8 F.3d 780, 783 (11th Cir. 1993). Moreover, “a technical error
or a slight mistake by a party’s attorney should not deprive
the party of an opportunity to present the merits of his
claim.” Id.
In determining whether to set aside a Clerk’s entry of
default, courts generally consider the following factors: (1)
whether the default is culpable or willful; (2) whether
setting aside the default would prejudice the adversary; and
(3)
whether
the
defaulting
party
presents
a
meritorious
defense. Compania Interamericana Export-Import, S.A., 88 F.3d
at 951. Additional factors include: (4) whether the public
interest is implicated; (5) whether the defaulting party will
experience significant financial loss; and (6) whether the
2
defaulting party acted promptly to correct the default. See
Global Aerospace, Inc. v. Platinum Jet Mgmt., LLC, No. 09cv-60756, 2010 WL 331905, at *4 (S.D. Fla. Jan. 28, 2010).
“Whatever factors are employed, the imperative is that they
be regarded simply as a means of identifying circumstances
which warrant the finding of ‘good cause’ to set aside a
default.” Id. (citation omitted).
The
Court
twice
before
explained
to
Thomas
the
requirements of Rule 4. (Doc. ## 13, 18). The latter of those
two orders, entered on May 9, 2017, set a deadline for
completing and proving service of process as May 22, 2017.
(Doc. # 18). On May 11, 2017, Thomas filed several documents
purporting to be returns of service. (Doc. ## 21-25). In
particular, Thomas filed documents attempting to show service
of process had been completed as to Derryberry, Caldwell, and
McDougal. (Doc. ## 23-25). Each document shows the Defendant
named therein was “served” on April 18, 2017, by Thomas’s
wife delivering a copy of the summons to a Virginia Wright,1
1
The hand writing on these returns of service (Doc. ## 2325) is hard to read. The last name of the woman identified in
the returns of service could either be Wright or Wight. But,
the difference is inconsequential because, whatever her last
name, the person served was not Derryberry, Caldwell, or
McDougal.
3
who is identified as a city clerk. (Doc. ## 23-25).
With service purportedly effected on April 18, 2017,
Derryberry’s, Caldwell’s, and McDougal’s responses to the
Amended Complaint were due by May 9, 2017. Fed. R. Civ. P.
12(a). When no responses were filed by Derryberry, Caldwell,
and McDougal and Thomas had not applied for entry of Clerk’s
Default, the Court entered an order to show cause why the
action against Derryberry, Caldwell, and McDougal should not
be dismissed for failure to prosecute. (Doc. # 28). After the
Court entered its show cause order on May 22, 2017, the
Clerk’s Office docketed a mailed-in application for entry of
Clerk’s Default against Derryberry, Caldwell, and McDougal,
which had been received on May 19, 2017. (Doc. # 29). The
Clerk
entered
default
against
Derryberry,
Caldwell,
and
McDougal on May 22, 2017. (Doc. ## 31-33).
The very next day, on May 23, 2017, Derryberry, Caldwell,
and McDougal moved to set aside the Clerk’s Defaults. (Doc.
#
34).
In
their
Motion,
defense
counsel
states
he
“communicated with Captain Richard Hankins of the CITY OF
BROOKSVILLE Police Department and confirmed that none of the
individual
officers
McDougal,]
had
[,
been
i.e.,
served
4
Derryberry,
with
Caldwell,
Plaintiff’s
and
Amended
Complaint.” (Id. at ¶ 3). Defense counsel also states he “was
out of the office” and thus was “not made aware of the May
11, 2017 filing of the alleged summonses.” (Id. at ¶ 9).
Furthermore, defense counsel indicates he was in the process
of preparing motions to quash service when he learned of the
entry of Clerk’s Default against Derryberry, Caldwell, and
McDougal. (Id. at ¶ 15).
Rather than challenging the sufficiency of Defendants’
showing of good cause, Thomas argues Derryberry, Caldwell,
and McDougal waived the ability to challenge service of
process. (Doc. # 40). Thomas’s argument as to waiver does not
persuade the Court. While a party does waive the defense of
insufficient service of process if that party fails to raise
the defense in a Rule 12 motion or in a responsive pleading,
Fed. R. Civ. P. 12(h)(1), that Rule does not apply here. To
be sure, the very first filing submitted by Derryberry,
Caldwell, and McDougal in this case was their pending Motion
to set aside, which also challenges the sufficiency of service
of process.
As explained more fully below, service of process was
not
properly
completed
as
to
Derryberry,
Caldwell,
and
McDougal. In addition, the record demonstrates Derryberry,
5
Caldwell, and McDougal promptly acted through counsel when
they learned of the Clerk’s Defaults; indeed, not even a full
day passed before they sought to set aside the Defaults.
Having considered the previously mentioned six factors, the
Court
determines
setting
aside
the
Clerk’s
Defaults
is
proper. As such, the Clerk’s Defaults against Derryberry
(Doc. # 31), Caldwell (Doc. # 32), and McDougal (Doc. # 33)
are set aside.
B.
Quashing Service of Process
On April 18, 2017, Thomas’s wife delivered the summonses
for Derryberry, Caldwell, and McDougal to a person identified
as Virginia Wright, a city clerk. (Doc. ## 23-25). Derryberry,
Caldwell, and McDougal now seek an order from this Court
quashing service, that is, an order declaring service has not
been properly accomplished.
Rule 4 prescribes that “[a] summons must be served with
a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). Anyone who
is at least eighteen years old and a nonparty may serve the
“summons and complaint.” Fed. R. Civ. P. 4(c)(2). When serving
an individual within a judicial district of the United States,
as is the case here, Rule 4 provides for two primary methods
of serving: (1) following the law of the state where the
6
district court is located, Fed. R. Civ. P. 4(e)(1), or (2) by
one of three means expressly listed, Fed. R. Civ. P. 4(e)(2).
As to the applicable state law under Rule 4(e)(1),
Florida law applies because this Court sits in Tampa, Florida.
Section 48.031, Fla. Stat., prescribes the manner by which
service must be made. Section 48.031 states that service of
process is
made by delivering a copy of it to the person to be
served with a copy of the complaint, petition, or
other initial pleading or paper or by leaving the
copies at his or her usual place of abode with any
person residing therein who is 15 years of age or
older and informing the person of their contents.
Fla. Stat. § 48.031(1)(a). For its part, Rule 4(e)(2) allows
service to be accomplished by “delivering a copy of the
summons and of the complaint to the individual personally,”
“leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion
who resides there,” or by “delivering a copy of each to an
agent authorized by appointment or by law to receive service
of process.” Fed. R. Civ. P. 4(e)(2)(A)-(C).
In this case, the record shows service was not properly
accomplished. To begin, the returns of service filed by Thomas
evince that someone other than Derryberry, Caldwell, and
7
McDougal was given the summonses. (Doc. ## 23-25). Thus, there
was not personal service. In addition, each return of service
shows the location of service as Brooksville’s City Hall.
(Doc. ## 23-25). Therefore, service was not made by leaving
a
copy
of
the
summons
and
operative
complaint
at
the
Defendants’ respective usual places of abode. And there is no
indication
in
the
record
that
this
Virginia
Wright
was
authorized by Derryberry, Caldwell, and McDougal to act as
their agent and accept service of process on their behalves.
The Court also notes the deadline for effecting service
of process—May 22, 2017—has passed and Thomas failed to
properly serve Derryberry, Caldwell, and McDougal even though
the Court explained the requirements imposed by Rule 4 and
sua sponte granted Thomas an extension of time to complete
service of process. In fact, Thomas had a total of 150 days
to complete service of process. As the May 22, 2017, deadline
for completing service of process has expired and service has
not been completed as to Derryberry, Caldwell, and McDougal,
Thomas is directed to show cause by June 16, 2017, why the
action against Derryberry, Caldwell, and McDougal should not
be dismissed pursuant to Rule 4(m). Failure to do so will
result
in
dismissal
of
the
8
action
against
Derryberry,
Caldwell, and McDougal without further notice.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants Shane Derryberry, Josh Caldwell, and Jeff
McDougal’s Motion to Set Aside Default and Motion to
Quash Service of Process (Doc. # 34) is GRANTED.
(2)
The Clerk’s Defaults against Derryberry, Caldwell, and
McDougal (Doc. ## 31-33) are SET ASIDE.
(3)
The returns of service purporting to prove service of
process as to Derryberry, Caldwell, and McDougal (Doc.
## 23-25) are QUASHED.
(4)
As the May 22, 2017, deadline for completing service of
process has expired and service has not been completed
as to Derryberry, Caldwell, and McDougal, Thomas is
directed to show cause by June 16, 2017, why the action
against Derryberry, Caldwell, and McDougal should not be
dismissed pursuant to Rule 4(m). Failure to do so will
result in dismissal of the action against Derryberry,
Caldwell, and McDougal without further notice.
9
DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of June, 2017.
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