ONE SOUTH BANK v. TITSHAW et al
ORDER DENYING without prejudice 28 Motion for Default Judgment as to Herman Curt Titshaw. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 2/18/2021. (kat)
Case 5:20-cv-00379-MTT Document 32 Filed 02/18/21 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
HERMAN CURT TITSHAW, et al.,
CIVIL ACTION NO. 5:20-CV-379 (MTT)
Plaintiff OneSouth Bank renews its motion for default judgment against
Defendant Herman Curt Titshaw. Doc. 28. For the reasons discussed below, that
motion (Doc. 28) is DENIED.
I. PROCEDURAL HISTORY
OneSouth brought three claims in its original complaint. Doc. 5. OneSouth sued
Global Produce Sales, Inc., Summer Time Melons, LLC, Crisp Melons, Inc., Stephen
Ross Nichols, Lee Allen Wroten, III, and Mark A. Elliott for conversion/misappropriation
of collateral and proceeds and attorney’s fees. Id. ¶¶ 60-71. OneSouth also sued
Titshaw for breach of contract. Id. ¶¶ 51-59. Titshaw was served with the original
complaint on October 27, 2020 but did not respond. Docs. 12; 28 at 1. The remaining
defendants collectively moved to dismiss the original complaint for failure to state a
claim and lack of personal jurisdiction. Doc. 16. OneSouth then applied to the Clerk of
Court for an entry of default against Titshaw, and the Clerk entered default. Docs. 19;
20. OneSouth then moved for default judgment against Titshaw. Doc. 21. But before
Case 5:20-cv-00379-MTT Document 32 Filed 02/18/21 Page 2 of 4
obtaining a ruling on that motion, OneSouth filed a consent motion to file an amended
complaint. Doc. 22. That motion was granted, and the amended complaint was filed on
January 7, 2021. Docs. 24; 25. Although Titshaw had not, and still has not, entered an
appearance, OneSouth served the amended complaint on Titshaw by mail at his last
known address on January 8, 2021. Docs. 26; 28 at 2. Titshaw did not answer or file a
responsive pleading, so OneSouth renewed its motion for default judgment. Doc. 28.
In its motion, OneSouth acknowledged that its amended complaint “mooted” Titshaw’s
default as to the initial complaint, but it claims Titshaw is in default as to the amended
Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court must enter
a party’s default if that party’s failure to plead or otherwise defend an action against it “is
shown by affidavit or otherwise.” After default has been entered, the Clerk may enter a
default judgment on the plaintiff’s request if the claim “is for a sum certain or a sum that
can be made certain by computation,” as long as the party is not a minor or incompetent
and has not made an appearance. Fed. R. Civ. P. 55(b)(1). In all other cases, the
plaintiff must apply to the Court for a default judgment. Fed. R. Civ. P. 55(b)(2).
At a party’s request, and following the Clerk’s entry of default, the Court may
enter a default judgment against a defendant who has failed to plead or otherwise
defend. See Fed. R. Civ. P. 55; Solaroll Shade and Shutter Corp., Inc. v. Bio-Energy
Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986). Entry of default judgment is committed
to the discretion of the Court. Hamm v. Dekalb County, 774 F.2d 1567, 1576 (11th Cir.
1985). However, default judgment does not follow automatically from an entry of
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default. The Court additionally “must ensure that the well-pleaded allegations in the
complaint, which are taken as true due to the default, actually state a substantive cause
of action and that there is a substantive, sufficient basis in the pleadings for the
particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 Fed. App’x 860, 863
(11th Cir. 2007). See also Nishimatsu Constr. Co. Ltd. v. Houston Nat’l Bank, 515 F.2d
1200, 1206 (5th Cir. 1975). 1 As to requests for damages, the Court may conduct
evidentiary hearings, although “no such hearing is required where all essential evidence
is already of record.” S.E.C. v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005).
III. DEFAULT JUDGMENT
OneSouth argues that it renewed its motion for default judgment against Titshaw
because the amended complaint mooted its pending motion for default judgment. Doc.
28 at 2 (citing Montgomery Bank, N.A. v. Alico Rd. Bus. Park, LP, 2014 WL 757994, at
*2 (M.D. Fla. Feb. 26, 2014)). OneSouth also argues that Rule 5(a)(2) permits service
of the amended complaint upon Titshaw by mail because the amended complaint
alleges no new claims or facts against Titshaw. Doc. 28 at 2.
On January 29, 2021, the Court expressed its skepticism as to whether Titshaw
is in default regarding the amended complaint. 2 Doc. 29. In response, OneSouth
argues that Rule 5, not Rule 4, governs service of the amended complaint on Titshaw
because no new claims were raised against him. Doc. 30 at 1-4. OneSouth cites for
support district court cases that applied the Eleventh Circuit’s ruling in Vax-D Med.
1 The Eleventh Circuit has adopted as binding all decisions of the former Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).
The Court also expressed concern about OneSouth’s daily interest calculation against Titshaw. Doc.
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Technologies, LLC v. Texas Spine Med. Ctr., 485 F.3d 593 (11th Cir. 2007), allowing
service of subsequent pleadings by mail because no new or additional claims were
brought against a defendant. Doc. 30 at 2. But the pro se defendant in Vax-D
answered an amended complaint that had been personally served on him and
participated in discovery, including appearing at a deposition. Vax-D, 485 F.3d at 595.
He then failed to answer a second amended complaint that had been served by mail.
Id. Clearly, service on that defendant pursuant to Rule 5 was appropriate. Moreover,
the issue in Vax-D was whether the district court had personal jurisdiction over the
defendant, not whether a defendant who has not appeared can be found in default
when he fails to answer a pleading served by mail.
In short, Titshaw has not entered an appearance and OneSouth cites no
authority, and the Court knows of none, holding that a party who has not entered an
appearance can be served under Rule 5, much less held in default for failing to respond
to a pleading served by mail. Thus, because OneSouth has not personally served the
amended complaint on Titshaw pursuant to Rule 4, Titshaw is not yet in default.
Finally, OneSouth has not requested the Clerk to enter default as to the
Accordingly, OneSouth’s renewed motion for default judgment (Doc. 28) is
DENIED without prejudice.
SO ORDERED, this 18th day of February, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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