GORDON v. CLARKSON et al

Filing 38

ORDER granting 34 Motion to Set Aside Default Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 5/13/24 (sst)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TOVORIS GORDON,
Plaintiff,
v.
REGINALD CLARK, 1 et al.,
Defendants.

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Case No. 5:23-cv-00361-CAR-CHW
Proceedings Under 42 U.S.C. §1983
Before the U.S. Magistrate Judge

ORDER
Before the Court is Defendants Clark and Waller’s motion to set aside default that
occurred due to operation of law. (Doc. 34). In the Court’s screening order and
recommendation, Plaintiff Gordon’s claims against Defendants Clark, Thompson, and
Waller were allowed to move forward. 2 (Doc. 7). Requests for waiver of service were
issued for these Defendants at Baldwin State Prison (Docs. 7-9), but they were returned
unexecuted. (Docs. 17-19). The Clerk of Court reissued service paperwork for personal
service (Docs. 21-23), and Defendants were personally served by the U.S. Marshals
Service in late March 2024. (Docs. 29-31). Defendants failed to answer Plaintiff’s
complaint as required and are in default by operation of law, but a default has not been
entered upon the docket. Defendants Clark and Waller now seek to have the default set
aside. (Doc. 34).
The Clerk of Court is DIRECTED to correct two of the Defendants’ names on the docket. Unit Manager
Clarkson should be “Reginald Clark” and Lieutenant Weller should be “Sherri Waller,” as noted in their
attorney’s notice of appearance. (Doc. 33).
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The screening recommendation remains pending.
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In their motion, counsel for Defendants Clark and Waller explains that Defendants
Clark and Waller timely sought representation following service, but there was a delay in
the case being assigned within the Georgia Attorney General’s Office. (Doc. 34-1, p. 3).
There appears to have been no delay on the part of Defendants Clark and Waller in seeking
representation. (Id.)
Defaults are viewed with disfavor, and there is a “strong policy for determining
cases on their merits.” In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir.
2003). Rule 55(c)of the Federal Rules of Civil Procedure provides that the Court may set
aside any entry of default for “good cause,” which generally requires the consideration of
factors such as: “whether the default was culpable or willful, whether setting [the default]
aside would prejudice the adversary, and whether the defaulting party presents a
meritorious defense.” Compania Interamericana Export-Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951-52 (11th Cir. 1996).
There is no genuine suggestion on the present record of any culpable conduct by
Defendants Clark and Waller, they allege that they have grounds for a potentially
meritorious defense in this action, and there is no indication that Plaintiff will suffer from
prejudice by litigating the merits of his claims through the ordinary legal process.
Therefore, Defendants Clark and Waller’s motion to set aside default (Doc. 34) is
GRANTED. Defendant Waller is directed to file an answer within 21 days of the date of
this Order. Defendant Clark’s answer filed on May 10, 2024 (Doc. 36), is accepted.
Defense counsel notified the Court that he is working to determine the
representation of Defendant Troutman, who was also personally served but failed to
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answer. (Doc. 34-1, p. 3, n. 1). Based on defense counsel’s notice, the Court will refrain
from entering a default at this time. Defense counsel is DIRECTED to submit a status
report regarding his efforts to determine Defendant Troutman’s representation within 14
days of this Order.
SO ORDERED, this 13th day of May, 2024.
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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