BURRELL v. TOPPERS INTERNATIONAL INC et al
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
CHRISTIE BURRELL, on behalf of
herself and those similarly
CASE NO. 3:15-cv-125(CDL)
TOPPERS INTERNATIONAL, INC.,
DARNELL LEWIS GARDNER, and
O R D E R
Plaintiff Christie Burrell filed this putative collective
29 U.S.C. § 201,
consented to join the action.
On February 8, 2016, Plaintiffs
Defendants had been properly served with a copy of the summons
otherwise responded within twenty-one days.
The Clerk entered
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
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
But none of the affidavits of service were signed by the
Affs. of Service, ECF Nos. 6, 7 & 9.
Therefore, no proper proof of service has been made to the Court
Moreover, although one of the unsigned affidavits states that
complaint by leaving the documents with Darnell Lewis Gardner at
that Sandra Gardner does not reside at that address and that any
attempted service on her through another person at that address
Under Federal Rule of Civil Procedure 55(c), the Court “may
set aside an entry of default for good cause.”
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
. . .
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).
Eleventh Circuit has “a strong preference for deciding cases on
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.
Therefore, it is not clear that
Plaintiffs had established that one or more of the Defendants
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.
all of these reasons, the Court concludes that good cause exists
to set aside the default.
For the reasons set forth above, Defendants’ Motion to Set
Answer is considered timely.
proofs of service.
If Plaintiffs contend that they
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
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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