BURRELL v. TOPPERS INTERNATIONAL INC et al

Filing 47

ORDER denying 44 Motion for Reconsideration. Ordered by US DISTRICT JUDGE CLAY D LAND on 06/17/2016. (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,

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*

Defendants.

O R D E R
On April 12, 2016, the Court granted Defendants’ motion to
set aside default.

Order, Apr. 12, 2016, ECF No. 36.

The Court

granted the motion because no proper proof of service had been
made to the Court and it was thus unclear whether any of the
Defendants had been properly served.
“Defendants

promptly

sought

to

The Court also found that

respond

to

the

default

and

promptly sought to point out the deficiencies in Plaintiffs’
service

and

proofs

of

service”

and

that

“setting

aside

the

default would not result in unfair prejudice to Plaintiffs.”
Id. at 3.

For all of these reasons, the Court concluded that

good cause existed to set aside the default.
Plaintiffs filed a motion for reconsideration (ECF No. 44)
more than forty days later, well past the fourteen-day deadline

set by Local Rule 7.6.

In support of this motion, Plaintiffs

point to amended certificates of service, which they contend
show that two of the Defendants—Toppers International, Inc. and
Darnell Lewis Gardner—were properly served more than twenty-one
days before they filed their Answer and were thus in default.
The Court reiterates its earlier conclusion: even if Plaintiffs
had established that one or more of the Defendants was properly
served and was in default, the Court would have set aside the
default anyway because Defendants promptly sought to respond to
the default and because setting aside the default would not
result in unfair prejudice to Plaintiffs.

For these reasons,

Plaintiffs’ motion for reconsideration is denied.
Plaintiffs’ request for clarification on whether they must
serve Defendant Sandra Gardner is moot because she has waived
service.

IT IS SO ORDERED, this 17th day of June, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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