BUONOCORE v. CREDIT ONE BANK NA
Filing
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ORDER granting 5 Motion to Set Aside Default. The Clerk of Court is directed to VACATE the entry of default [Docket entry September 3, 2014] and to REOPEN the action against the Defendant. Defendant has seven (7) days from the date of this Order to file an Answer to Plaintiffs Complaint. Ordered by U.S. District Judge C ASHLEY ROYAL on 11/21/14 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
EVOL BUONOCORE,
:
:
Plaintiff,
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v.
:
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CREDIT ONE BANK, N.A.,
:
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Defendant.
:
___________________________________ :
No. 3:14‐CV‐067 (CAR)
ORDER ON DEFENDANT’S MOTION TO SET ASIDE ENTRY OF DEFAULT
Before the Court is Defendant Credit One Bank’s Motion to Set Aside Entry of
Default [Doc. 5]. On August 29, 2014, Plaintiff moved for the Clerk to enter default as to
Defendant, and on September 3, 2014, they did so. Defendant now files this instant
Motion requesting that the Court set aside the Entry of Default. For the following
reasons, the Court GRANTS Defendant’s Motion [Doc. 5].
BACKGROUND
Plaintiff filed her Complaint on July 17, 2014, claiming that Defendant violated
the Telephone Consumer Protection Act (“TCPA”)1 by using an automatic dialing
system to repeatedly call her about an alleged auto loan debt that she owed Defendant.
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47 U.S.C. § 227 et seq.
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The Complaint was served on July 22, 2014, and Defendant’s answer was due on
August 12, 2014.
The parties spoke on August 7, 2014 regarding Plaintiff’s claims. At that time,
Defendant told Plaintiff that it did not service auto loans, and Plaintiff’s counsel sent a
confirmation email to Defendant that Plaintiff would file an amended complaint
removing the auto‐loan‐related language. Defendant believed that it did not need to
file an answer to the Complaint because an amended complaint was forthcoming.
Plaintiff never filed an amended complaint.
On August 18, 2014, Defendant inquired why Plaintiff had not filed an amended
complaint. At that time, despite the fact that Defendant’s answer was already overdue,
Plaintiff’s counsel gave Defendant two weeks in which to submit a settlement offer.
Defendant emailed a settlement offer to Plaintiff, and Plaintiff did not respond to
Defendant’s offer. Instead, Plaintiff motioned the Court to enter default for Defendant’s
failure to timely file an answer. Default was entered.2
Defendant discovered that default had been entered when its counsel checked the electronic
docket. After discovering the entry of default, Defendant asked Plaintiff to set aside the default.
When Plaintiff refused, Defendant submitted the present Motion to the Court.
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DISCUSSION
I.
Legal Standard
Generally, a party must serve an answer within twenty‐one (21) days of being
served with the summons and complaint.3 Under Federal Rule of Civil Procedure 55(a),
when a defendant has failed to plead or otherwise defend an action, the clerk shall enter
a default judgment against the defendant. Once default is entered, however, it can be
set aside upon a showing of good cause.4 The good cause standard used in setting aside
an entry of default is less rigorous than the excusable neglect standard used in setting
aside a default judgment.5 A court has discretion in deciding whether to set aside an
entry of default.6
The Eleventh Circuit has recognized that good cause is not susceptible to a
precise formula, although some general guidelines are commonly applied.7 “Courts
have considered whether the default was culpable or willful, whether setting it aside
would prejudice the adversary, and whether the defaulting party presents a meritorious
FED. R. CIV. P. 12(a)(1)(A)(i).
FED. R. CIV. P. 55(c).
5 Equal Emp’t Opportunity Commʹn v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524,528 (11th Cir.
1990).
6 Robinson v. United States, 734 F.2d 735, 739 (11th Cir. 1984).
7 Compania Interamericana Exp.‐Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d, 948, (11th
Cir. 1996) (finding the good cause standard from Rule 55(c) is not rigidly defined and varies
from situation to situation); see also Heaton v. Bonacker & Leigh, 173 F.R.D. 533, 535 (M.D. Ala.
1997).
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defense.”8 Moreover, in the Eleventh Circuit, judgments by default are viewed with
disfavor.9 As such, courts are instructed to consider a default judgment as “a drastic
remedy which should be used only in extreme situations,”10 and encouraged to “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.”11
Analysis
II.
After reviewing the parties’ briefs, the Court finds that Defendant establishes
good cause to set aside the entry of default. The purpose of the entry of default is to
give notice to a party that unless they engage in the litigation process, they could lose
their right to do so. It is not meant, however, as a tactical device to be used to avoid
litigation of a claim on the merits. Here, it is clear that the parties had open lines of
communication and were engaged in active negotiations.
Defendant failed to timely file its answer based on Plaintiff’s representations
that she would file an amended complaint. Plaintiff does not dispute that her counsel
said she would file an amended complaint. Indeed, based on Defendant’s
representations that it would submit a settlement offer, Plaintiff confirms that she
“granted” an extension after Defendant’s deadline to answer had expired. Defendant
Id.
In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003).
10 Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316–17 (11th Cir. 2002) (quotation
omitted).
11 Id. at 1317 (11th Cir. 2002).
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made an offer to Plaintiff, but she found the settlement offer “insulting” and responded
by filing a Motion for Default with this Court.12 Although it seems the parties believed
such communication between each other was sufficient and that there was no need to
file a motion with this Court—they were mistaken.13
The Court notes that parties cannot grant extensions to each other without
motioning the Court.14 However, a good faith procedural error is not considered
willful. 15 Therefore, Defendant’s misguided reliance on communications with Plaintiff
cannot serve as a reason for default where there is evidence that the failure was based
on a miscommunication between parties that are both active in the litigation process.
Moreover, not only Defendant, but both parties, demonstrated a misunderstanding of
procedure; however, neither party has demonstrated a willful evasion of the Rules.
Furthermore, a defendant need only show a “hint of a suggestion” to meet the
requisite standard of a meritorious defense.16 In the instant action, Defendant has
proffered a meritorious defense,17 and Plaintiff has failed to show that she would be
Pl. Response to Motion, Doc 6. at. 2.
Under Local Rule 6.1, parties may stipulate to an extension of the pleading deadlines if the
stipulation is written and filed with the court.
14 FED. R. CIV. P. 6(b)(1); see also id.
15 See, e.g., In re Johnson, 90‐11663, 1991 WL 11002465 (Bankr. S. D. Ga. Nov. 11, 1991) (finding
good cause where counsel for defendant was under an erroneous impression as to when the
response time began to run).
16 Moldwood Corp. v. Stutts, 410 F.2d 351 (5th Cir. 1969). The Eleventh Circuit has adopted as
binding precedent all decisions issued by the former Fifth Circuit prior to October 1, 1981. See
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
17 Domineck v. One Stop Auto Shop, Inc., 1:12‐CV‐3673‐TWT, 2014 WL 4660790, at *3 (N.D. Ga.
Sept. 17, 2014).
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prejudiced outside of the need to litigate her case. Because of the preference to decide
cases on their merits, the requirement to litigate is not sufficient prejudice to deny the
setting aside of an entry of default.18
CONCLUSION
For the foregoing reasons, the Court finds that Defendant has shown good cause
to set aside the entry of default. Accordingly, Defendant’s Motion to Set Aside Entry of
Default [Doc. 5] is GRANTED. The Clerk of Court is directed to VACATE the entry of
default [Docket entry September 3, 2014] and to REOPEN the action against the
Defendant. Defendant has seven (7) days from the date of this Order to file an Answer
to Plaintiff’s Complaint.
SO ORDERED, this 21st day of November, 2014.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
JRF/ssh
See Washington v. Rogers, CV406‐111, 2007 WL 1732575, at *2 (S.D. Ga. June 14, 2007)
(“Prejudice is not shown by the simple delay that will inherently attend in resolving a case from
the setting aside of a judgment.”).
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