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)

Download PDF
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 oneā€”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

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?