BURRELL v. TOPPERS INTERNATIONAL INC et al
Filing
36
ORDER granting 28 Motion to Set Aside Default. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/12/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CHRISTIE BURRELL, on behalf of
herself and those similarly
situated,
*
*
*
Plaintiff,
*
vs.
CASE NO. 3:15-cv-125(CDL)
*
TOPPERS INTERNATIONAL, INC.,
DARNELL LEWIS GARDNER, and
SANDRA GARDNER,
*
*
Defendants.
O R D E R
Plaintiff Christie Burrell filed this putative collective
action
under
the
29 U.S.C. § 201,
et
Fair
seq.
Labor
Standards
Several
additional
consented to join the action.
applied
for
a
Clerk’s
Act
(“FLSA”),
Plaintiffs
have
On February 8, 2016, Plaintiffs
entry
of
default,
asserting
that
Defendants had been properly served with a copy of the summons
and
complaint
on
January
11,
2016
but
had
otherwise responded within twenty-one days.
default
as
to
all
three
Defendants
on
not
answered
or
The Clerk entered
February
9,
2016.
Defendants filed an answer on March 7, 2016 and also filed a
Motion to Set Aside the Default.
As discussed in more detail
below, the Motion to Set Aside the Default (ECF No. 28) is
granted.
BACKGROUND
In
seeking
the
entry
of
default,
Plaintiffs’
counsel
asserted that Defendants Toppers International, Inc., Darnell
Lewis Gardner, and Sandra Gardner were each served with a copy
of the summons and complaint on January 11, 2016.
3, ECF No. 18-1.
Frisch Aff. ¶
In support of this assertion, Plaintiffs’
counsel pointed to the affidavits of service he had previously
filed.
But none of the affidavits of service were signed by the
process server.
See
Affs. of Service, ECF Nos. 6, 7 & 9.
Therefore, no proper proof of service has been made to the Court
as
required
by
Federal
Rule
of
Civil
Procedure
4(l)(1).
Moreover, although one of the unsigned affidavits states that
Sandra
Gardner
was
served
with
a
copy
of
the
summons
and
complaint by leaving the documents with Darnell Lewis Gardner at
1072
Mill
Pointe
in
Watkinsville
Georgia,
Defendants
contend
that Sandra Gardner does not reside at that address and that any
attempted service on her through another person at that address
is invalid.
DISCUSSION
Under Federal Rule of Civil Procedure 55(c), the Court “may
set aside an entry of default for good cause.”
In determining
whether good cause exists to set aside an entry of default,
“courts have considered, but are not limited to, factors such as
the willfulness of the default, whether setting it aside would
2
prejudice
the
adversary,
. . .
whether
the
defaulting
party
would have a meritorious defense [and] whether the defaulting
party promptly corrected the default.”
Parker v. U.S. Bank Nat.
Ass’n, 580 F. App’x 776, 777 (11th Cir. 2014) (per curiam).
The
Eleventh Circuit has “a strong preference for deciding cases on
the
merits—not
based
on
a
single
missed
deadline—whenever
reasonably possible.” Perez v. Wells Fargo N.A., 774 F.3d 1329,
1332 (11th Cir. 2014).
Here, it is not clear from the present record that any of
the Defendants were properly served because no valid proofs of
service have been filed.
Defendants Toppers International, Inc.
and Darnell Lewis Gardner do not acknowledge that they have been
properly served, and Defendant Sandra Gardner asserts that she
has not been properly served.
all
three
Defendants
are
Therefore, it is not clear that
actually
in
default.
Even
if
Plaintiffs had established that one or more of the Defendants
was
properly
Defendants
served
promptly
and
sought
is
in
to
default,
respond
to
it
the
appears
default
that
and
promptly sought to point out the deficiencies in Plaintiffs’
service and proofs of service.
Moreover, setting aside the
default would not result in unfair prejudice to Plaintiffs.
For
all of these reasons, the Court concludes that good cause exists
to set aside the default.
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CONCLUSION
For the reasons set forth above, Defendants’ Motion to Set
Aside
the
Default
(ECF
No.
Answer is considered timely.
have
effected
service
proofs of service.
on
28)
is
granted,
and
Defendants’
If Plaintiffs contend that they
Defendants,
they
may
file
amended
Plaintiffs are on notice of Defendants’
position that Sandra Gardner does not reside at 1072 Mill Pointe
in Watkinsville, Georgia and that any attempted service on her
through
another
person
at
that
address
was
invalid.
If
Plaintiffs wish to have additional time to perfect service on
Sandra Gardner or seek a waiver of service from her, Plaintiffs
shall file a motion seeking such relief.
IT IS SO ORDERED, this 12th day of April, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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