Hesed-El v. Federal National Mortgage Association et al

Filing 81

ORDER granting 32 Motion to Set Aside Default; denying as moot 32 Motion to Dismiss; denying 24 Motion for Default Judgment; denying 29 Motion to Allow the Clerk to Enter Default Judgment against Courtney McCord; denying 45 Motion to S tay; denying 48 Motion for Hearing; denying 53 Motion to Withdraw; denying as moot 5 Motion for TRO; denying 61 Motion for Leave to File. The Court sets aside the default entered against Defendant. Signed by Chief Judge J. Randal Hall on 08/20/2018. (thb)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
*
*

BRO T. HESED-EL,

5
*

Plaintiff,

*

CV 117-146

5

V.

*

COURTNEY McCORD,

5
*

Defendant.

*
*

5
5

ORDER

Before the Court is Defendant Courtney McCord's ''Motion to

Set Aside Entry of Default, Response to Plaintiff's Motion for

Default Judgment and Motion to Dismiss" (doc. 32), Plaintiff's
"Motion for Leave to File 2nd Amended Complaint

(doc. 61), and

Plaintiff's "Motion to Withdraw" (doc. 53).

I. BACKGROUND

Plaintiff is a serial filer in this Court.

See Georgia v.

Hesed-El, CV 118-037, 2018 WL 1404893, *1, *2 (S.D. Ga. Mar. 28,
2018) (identifying eight cases filed by Plaintiff in the past

two years).
lawsuit

On November 2, 2017, Plaintiff initiated this

against

numerous

defendants

involving a Wells Fargo home mortgage.

alleging

wrongdoing

(Doc. 1.)

Plaintiff

later amended his complaint to dismiss all original defendants
and

substituted

current

defendants

in

that

action,

alleges committed various civil rights violations.
14.)

who

he

{Docs. 12,

Plaintiff served Defendants on January 26, 2018, and when

Defendant

McCord

failed

Plaintiff

requested

the

to

answer

Clerk

within

enter

the

twenty-one

default

against

days,

her

in

accordance with Federal Rule of Civil Procedure 55(a), which the

Clerk did on February 22, 2018.

(Doc. 23, at 2.)

23,

the

2018,

Plaintiff

requested

Clerk

to

On February

enter

default

judgment for $100,000 against Defendant McCord in accordance
with Federal Rule of Civil Procedure 55(b)(1).

3.)

(Doc. 24, at 2-

On February 26, 2018, Plaintiff dismissed Defendants Dustin

Burdick, Branden J. Glover, and Richard Roundtree, leaving only
Defendant McCord.

(Doc. 31.)

On March 1, 2018, Defendant McCord moved to set aside the

entry of default and dismiss Plaintiff's complaint.

(Doc. 32.)

On July 7, 2018, Plaintiff moved to file a second amended
complaint.

(Doc. 61.) The Court now considers these motions.

II. DISCUSSION

A. Motion to Withdraw

Plaintiff

requests

to

withdraw

his

motion

for

default

judgment (doc. 24), motion for mandatory judicial notice (doc.
48), and motion to stay state court proceedings (doc. 45).

Defendant McCord has no opposition to Plaintiff's motion.

62.)

(Doc.

Accordingly, the Court DENIES Plaintiff's above motions.

B. Motion to Set Aside Default

First, Defendant McCord asks this Court to set aside the

entry of default entered against her.
Procedure

55(c)

Federal Rule of Civil

provides that "[t]he court may set aside

entry of default for good cause."

an

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.
We recognize that good

cause is not susceptible to a precise formula, but some

general

guidelines

considered

are

whether the

commonly
default

applied.

Courts have

was culpable or

willful,

whether setting it aside would prejudice the adversary,
and whether the defaulting party presents a meritorious
defense.

We note, however, that these factors are not

talismanic, and that courts have examined other factors

including
whether

whether
there

the

was

public

interest

significant

was

financial

implicated,

loss

to

the

defaulting party, and whether the defaulting party acted
promptly to correct the default.
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. However, if
a party willfully defaults by displaying either an
intentional

or

reckless

disregard

for

the

judicial

proceedings, the court need make no other findings in
denying relief.

Compania Interamericana Export-Import v. Compania Dominicans De

Aviacion, 88
internal
''within

F.3d 948, 952 (11^^ Cir. 1996) (citations and

quotations
the

omitted).

discretion

of the

Setting
district

aside
court."

United States, 734 F.2d 735, 739 (11th Cir. 1984).

a

default

is

Robinson

v.

Defendant

McCord

argues

that

good

cause

exists

because

Plaintiff never properly served her as required by Federal Rule
of Civil Procedure 4.

(Doc. 32, at 2.)

Federal Rule of Civil

Procedure 4(c) provides that ''[a] summons must be served with a

copy of the complaint.

The plaintiff is responsible for having

the summons and complaint served within the time allowed by the
Rule 4(m) and must furnish the necessary copies to the person
who makes service."

Fed. R. Civ. P. 4(c)(1).

Defendant McCord

claims that Plaintiff never served her with "a summons issued by
the

Court

in

accordance

with

the

Federal

Rules

of

Civil

Procedure commanding [her] to take any action such [as] filing

an appearance with [sic] twenty one (21) days or any specified
time."

(Doc. 32, at 2.)

According to Defendant McCord, ^Mt]he

only document served upon [her] other than the amended complaint
was the form 'Notice of a Lawsuit' and 'Request to Waive Formal
Service.'"

(Id.)

forwarded

the

counsel.

(Id.)

Defendant

documents

to

McCord

her

also

asserts

supervisors

for

that

she

review

by

Defendant McCord supports her accusations with

a sworn affidavit.

(Doc. 33.)

The Court finds that Defendant McCord has established good

cause
McCord

to

set aside

has

the

established

entry of default.
excusable

neglect

First,

because

Defendant

there

is

a

chance she was not properly served^ and she immediately delivered
the documents to her supervisor for review.

Second, Defendant

acted promptly after notice of the entry of default.
setting aside default will not prejudice Plaintiff.
Defendant

has

a

potentially

meritorious

defense

Third,
Fourth,

because

the

claims made against Defendant in the first amended complaint do

not appear to make factual allegations that "raise a right to
relief above the speculative level" and "state a claim to relief

that is plausible on its face."
U.S. 544 at 570 (2007).

default

entered

against

Bell Atl. Corp. v. Twombly, 550

Thus, the Court now SETS ASIDE the

Defendant.

The

Court

also

DENIES

Plaintiff's motion to allow the Clerk to enter default judgment
(doc. 29).

C. Motion to Amend

Under Federal Rule of Civil Procedure 15^, "a party may
amend

its

pleading

only

with

the

consent or the court's leave.

leave when justice so requires."

opposing

party's

written

The court should freely give

Fed. R. Civ. P. 15(a)(2).

Defendant McCord objects to Plaintiff's motion on the grounds
that a second complaint would be futile.

The Court, however,

^ The Court declines to make a factual finding on this issue

because Plaintiff vigorously disputes this fact and includes an
affidavit of his process server in support of his position.
^ Plaintiff may not amend as of right under Rule 15 because this
is Plaintiff's second amended complaint and Plaintiff moved to amend
both more than 21 days after serving his first amended complaint and
after service of Defendant's motion to dismiss.

finds that Plaintiff's pro se status works in favor of granting

Plaintiff leave to amend his complaint.
GRANTS

Plaintiff's

amended

complaint

motion

as

the

and

Accordingly, the Court

accepts

operative

his

proposed

complaint

in

second

this

case.

Furthermore, the Court DENIES AS MOOT Plaintiff's motion for a
TRO (doc. 5) because it sought to enjoin individuals who are no

longer defendants to this action and concerns facts that are not
set forth in Plaintiff's second amended complaint.

III. CONCLUSION

The Court GRANTS

Defendant's motion to set aside default

(doc. 32) and Plaintiff's motion to amend his complaint (doc.
61).

Further, the Court DENIES Plaintiff's motion for default

judgment (doc. 24), motion to allow the Clerk to enter default
(doc. 29), motion for mandatory judicial notice (doc. 48), and
motion to stay state court proceedings (doc. 45).

The Court

also DENIES AS MOOT Plaintiff's motion for a TRO (doc. 5) and
Defendant McCord's motion to dismiss (doc. 32).

ORDER

ENTERED

at

Augusta,

Georgia,

this

day

August, 2018.

fUDGE

united/states DISTRICT 'COURT
^RN DISTRICT OF GEORGIA

of