Hesed-El v. Federal National Mortgage Association et al
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
BRO T. HESED-EL,
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).
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
On November 2, 2017, Plaintiff initiated this
involving a Wells Fargo home mortgage.
later amended his complaint to dismiss all original defendants
alleges committed various civil rights violations.
Plaintiff served Defendants on January 26, 2018, and when
accordance with Federal Rule of Civil Procedure 55(a), which the
Clerk did on February 22, 2018.
(Doc. 23, at 2.)
judgment for $100,000 against Defendant McCord in accordance
with Federal Rule of Civil Procedure 55(b)(1).
(Doc. 24, at 2-
On February 26, 2018, Plaintiff dismissed Defendants Dustin
Burdick, Branden J. Glover, and Richard Roundtree, leaving only
On March 1, 2018, Defendant McCord moved to set aside the
entry of default and dismiss Plaintiff's complaint.
On July 7, 2018, Plaintiff moved to file a second amended
(Doc. 61.) The Court now considers these motions.
A. Motion to Withdraw
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.
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.
Federal Rule of Civil
provides that "[t]he court may set aside
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.
We recognize that good
cause is not susceptible to a precise formula, but some
was culpable or
whether setting it aside would prejudice the adversary,
and whether the defaulting party presents a meritorious
We note, however, that these factors are not
talismanic, and that courts have examined other factors
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
proceedings, the court need make no other findings in
Compania Interamericana Export-Import v. Compania Dominicans De
F.3d 948, 952 (11^^ Cir. 1996) (citations and
United States, 734 F.2d 735, 739 (11th Cir. 1984).
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).
claims that Plaintiff never served her with "a summons issued by
Procedure commanding [her] to take any action such [as] filing
an appearance with [sic] twenty one (21) days or any specified
(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
Defendant McCord supports her accusations with
a sworn affidavit.
The Court finds that Defendant McCord has established good
entry of default.
chance she was not properly served^ and she immediately delivered
the documents to her supervisor for review.
acted promptly after notice of the entry of default.
setting aside default will not prejudice Plaintiff.
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).
Bell Atl. Corp. v. Twombly, 550
Thus, the Court now SETS ASIDE the
Plaintiff's motion to allow the Clerk to enter default judgment
C. Motion to Amend
Under Federal Rule of Civil Procedure 15^, "a party may
consent or the court's leave.
leave when justice so requires."
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.
Accordingly, the Court
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.
The Court GRANTS
Defendant's motion to set aside default
(doc. 32) and Plaintiff's motion to amend his complaint (doc.
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).
also DENIES AS MOOT Plaintiff's motion for a TRO (doc. 5) and
Defendant McCord's motion to dismiss (doc. 32).
united/states DISTRICT 'COURT
^RN DISTRICT OF GEORGIA
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