MCCLURE v. JONES et al
ORDER granting 32 Motion for Entry of Default; granting 33 Amended Motion; denying 35 Motion for Default Judgment; denying 44 Motion for Default Judgment; granting 52 Motion for Entry of Default; granting 53 Motion to Set Aside Default; granting 54 Motion for Extension of Time to Answer; granting 58 Motion to Amend/Correct; granting 59 Motion to Amend/Correct. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 8/9/17. (AGH)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WILLIAM JEFFREY MCCLURE,
TIMOTHY JONES, et al.,
CASE NO. 5:16-CV-366-MTT-MSH
42 U.S.C. § 1983
Presently pending before the Court are Plaintiff’s motions for entry of default
(ECF Nos. 32, 33, 52), motions for default judgment (ECF Nos. 35, 44), and motions to
amend (ECF Nos. 58, 59). Also pending are Defendants’ motion to set aside the default
against Defendants Stephens and Sanford (ECF No. 53) and motion for an extension of
time to file an answer (ECF No. 54). For the reasons explained below, Plaintiff’s
motions for default and motions to amend are granted. His motions for default judgment
are denied. Defendants’ motions to set aside the default and for an extension of time are
Plaintiff filed this action on August 15, 2016, asserting claims against multiple
parties. See generally Compl., ECF No. 1. After a preliminary review, service was
ordered against Defendants on October 19, 2016.
Order, ECF No. 14.
States Marshals Service issued a Process Receipt and Return on October 20 which was
mailed to Defendants on October 24, 2016.
(ECF Nos. 16-20.) All Defendants
failed to waive service in accordance with Federal Rules of Civil Procedure Rule 4(d).
Consequently, the Marshals Service issued a Summons and Process Receipt and Return
for personal service on December 21, 2016. (ECF No. 24.)
Defendants Sanford and
Stephens were personally served on January 6, 2017 and January, 27, 2017, respectively.
(ECF Nos. 29, 31.)
Defendants Sanford and Stephens failed to timely answer or
otherwise respond to Plaintiff’s complaint.
The clerk thus entered default against
Defendants Sanford and Stephens on March 14, 2017.
Plaintiff moved for default
judgment against Defendants Sanford and Stephens on March 23, 2017 (ECF No. 44).
On January 6, 2017, a United States Marshal served Defendants Williams, Jones,
and Burney by serving Defendant Sanford, Chief of Security. (ECF Nos. 27, 28, 30)
Service on Defendants Williams, Jones, and Burney was not proper personal service in
accordance with Federal Rules of Civil Procedure Rule 4(e).
The United States
Marshals Service was thus directed to personally serve Defendants Williams, Jones,
and Burney in accordance with Federal Rules of Civil Procedure Rule 4(e)(2)(A). Order
2, Mar. 14, 2017, ECF No. 39. Defendants Williams and Burney were personally served
on March 29, 2017 (ECF Nos. 45, 47). Defendant Jones was personally served on March
30, 2017 (ECF No. 46). Defendants Williams, Burney, and Jones failed to timely answer
or otherwise respond to Plaintiff’s complaint. Plaintiff consequently moved for an entry
of default on April 25, 2017 (ECF No. 52).
On May 9, 2017, Defendants moved to set aside the entry of default against them.
(ECF No. 53.) Defendants then filed a motion for extension of time to file their answer
on May 16, 2017. (ECF No. 54.) Attached thereto is Defendants’ proposed answer.
(ECF No. 54-2.) Plaintiff has not responded to the request to set aside the entry of
default, but has moved to amend his complaint (ECF Nos. 58, 59).
Motion to set aside entry of default
Defendants move to set aside the entry of default against them (ECF No. 53).1
Default has not been entered against Defendants Williams, Burney, and Jones. Plaintiff
properly moved for default against them after the time for filing a responsive pleading
elapsed. Consequently, Plaintiff’s motions for default (ECF Nos. 32, 33, 52) as to
Defendants Williams, Burney, and Jones are granted.
Default having been entered
against all Defendants, the Court now considers whether that default should be set aside.
Rule 55 of the Federal Rules of Civil Procedure provides that a clerk “must enter
[a] party’s default” when that party “failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise.” Rule 55(c) allows the court to “set aside an entry of
default for good cause[.]” 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 (11th Cir. 1996). “In determining what
constitutes ‘good cause,’ courts have considered, but are not limited to, factors such as
whether the default was willful, whether the defaulting party would have a meritorious
Defendants also filed a motion for an extension of time to file their answer and an attached
proposed answer. (ECF Nos. 54, 54-2.)
defense, and whether setting aside the default would result in prejudice to the nondefaulting party.” Annon Consulting, Inc. v. BioNitrogen HoldingsCorp., 650 F. App’x
729, 732 (11th Cir. 2016). However, “these factors are not ‘talismanic,’ and  courts
have examined other factors including whether the public interest was implicated,
whether there was significant financial loss to the defaulting party, and whether the
defaulting party acted promptly to correct the default.” Compania Interamericana, 88
F.3d at 951. “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.
Defendants submitted declarations in support of their motion to set aside the
default showing that, after being properly served, they each contacted a supervisor and
were told that the Complaint and accompanying documents would be forwarded to the
Georgia Department of Correction’s (GDOC) legal department. Sanford Decl. ¶ 3, ECF
No. 53-2; Stephens Decl. ¶ 3, ECF No. 53-3; Jones Decl. ¶¶ 4-7, ECF No. 53-42; Burney
Decl. ¶ 3, ECF No. 53-5; Williams Decl. ¶ 3, ECF No. 53-6. Each defendant further
believed that he or she would be contacted if he or she needed to take further action.
Sanford Decl. ¶ 3; Stephens Decl. ¶ 3; Jones Decl. ¶¶ 4-7; Burney Decl. ¶ 3; Williams
Decl. ¶ 3. Defendants did not then hear from the Attorney General’s Office until the
Defendant Jones is the superintendent of Macon Transitional Center. When he received the
complaint packet in the mail, he asked his administrative assistant to contact the GDOC legal
department. Jones Decl. ¶ 4. His assistant initially forwarded the Complaint and waivers of
service to the Attorney General’s Office in October 2016. Id. When he was personally served
he again had his assistant forward the documents for himself and Defendants Burney and
Williams to the Attorney General’s Office. Id. ¶¶ 5-6. He then signed request for representation
forms which were received on April 7, 2017. Jones Decl. ¶ 7.
evening of May 3, 2017, when they learned that the filing deadlines had passed. Sanford
Decl. ¶ 4; Stephens Decl. ¶ 4; Jones Decl. ¶ 8; Burney Decl. ¶ 4; Williams Decl. ¶ 4.
Counsel represents that they did not become aware of the case until May 3, 2017. Br. in
Supp. of Defs.’ Mot. to Set Aside 3, ECF No. 53-1.
It is clear from the record in this case that Defendants did not willingly default.
To the contrary, Defendants and their counsel agree that the failure to timely respond is
due to either an administrative error or a miscommunication on the part of counsel’s
office. Br. in Supp. of Defs.’ Mot. to Set Aside 8; Sanford Decl. ¶ 4; Stephens Decl. ¶ 4;
Jones Decl. ¶ 8; Burney Decl. ¶ 4; Williams Decl. ¶ 4. Defendants also assert that they
have meritorious defenses to Plaintiff’s claims and that setting aside the default will not
The Court agrees and finds that good cause exists to set aside the default as to each
Defendant. Plaintiff’s motions for default judgment (ECF Nos. 35, 44) are accordingly
denied. Defendants’ motion for an extension of time to file an answer (ECF No. 54) is
granted and the clerk is directed to docket the proposed answer at ECF No. 54-2 as the
Answer in this case.
Plaintiff’s motions to amend
Plaintiff files two motions to amend (ECF Nos. 58-59) which clarify that Plaintiff
(1) sues each defendant in his or her individual capacity, and (2) demands a jury trial.
Second Mot. to Am. 1, ECF No. 59. Plaintiff also seeks to correct his complaint to
reflect that Defendant Burney’s first name is spelled “Tamika” and that Defendant
Stephens’ first name is Calvin. Mot. to Am. 1-3, ECF No. 58. Plaintiff’s motions to
amend are granted. Defendants may file an amended answer within fourteen (14) days.
Discovery shall commence either from the filing of an amended answer or when the
fourteen days within which to file the amended answer expires.
For the reasons explained above, Plaintiff’s motions for default (ECF Nos. 32, 33,
52) and motions to amend (ECF Nos. 58-59) are granted. His motions for default
judgment (ECF Nos. 35, 44) are denied. Defendants’ motions to set aside the default
(ECF No. 53) and for an extension of time (ECF No. 54) are granted. The clerk is
directed to file Defendants’ proposed answer. Defendants shall have fourteen (14) days
within which to file an amended answer in response to Plaintiff’s amended complaint.
SO ORDERED, this 9th day of August, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?