Farr v. GSV Care Medical Clinic, LLC et al
ORDER denying 21 Motion to Set Aside Default Judgment without prejudice. Signed by District Judge Sharion Aycock on 7/7/2017. (dbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.1:16-CV-42-SA-DAS
GSV CARE MEDICAL CLINIC, LLC, and
MANDA S. GRIFFIN
In March of 2016, Deanna Farr filed this action to recover overtime wages and other
damages from her former employer under the Fair Labor Standards Act. The Defendants were
served with a summons and complaint on March 21, 2016. The Defendants never filed an answer
or made an appearance in the case. After the Clerk of Court issued three Notices of Past Due
Answer [7, 8, 9], the Plaintiff filed a Motion for Entry of Default . The Clerk entered a
default against the Defendants on July 19, 2016, more than four months after the Defendants
were served with the Complaint. The Plaintiff subsequently requested a default judgment for sum
certain, $3,589.39 plus interest, which the Clerk entered on July 29, 2016. See [14, 16]. Shortly
after the entry of the Default Judgment, the Plaintiff’s attorney withdrew leaving the Plaintiff pro
se. Nearly three months after the Default Judgment, the Defendants filed the pending Motion to
Set Aside the Default  and entered an appearance. The record reflects that the Motion to Set
Aside was served on the pro se Plaintiff by mail, however she did not respond.
In support of their motion, the Defendants argue that the attorney they engaged to defend
this suit assured them that he was defending the matter and negotiating on their behalf to resolve
the issues. The Defendants further argue that despite his assurances to the contrary their counsel
was not permitted to practice law in this Court, never filed any responsive pleadings, and
misrepresented facts to them regarding settlement negotiations. In support of their motion, the
Defendants submitted email correspondence between their attorney and the Plaintiff’s attorney.
This correspondence reflects numerous attempts by Plaintiff’s counsel to apprise the Defendants
of the posture and progression of the case and to resolve the Parties’ dispute.
The Defendants argue that they were misled by their previous counsel which constitutes
good cause for setting aside the default. The Defendants also argue that the Fair Labor Standards
Act does not apply to them, which if proven, would likely be dispositive to the Plaintiff’s claims.
Now represented by new counsel, the Defendants request that the Court set aside the default
judgment under Federal Rule of Civil Procedure 60(b).
Rule 60(b) states in relevant part: “On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; [. . .] (6) any other reason that
justifies relief.” FED. R. CIV. P. 60(b)(6).
The Fifth Circuit has explained that there is “a policy in favor of resolving cases on their
merits and against the use of default judgments.” In re Chinese Manufactured Drywall Prod.
Liab. Litig., 742 F.3d 576, 594 (5th Cir. 2014) (citing Rogers v. Hartford Life & Accident Ins.
Co.,167 F.3d 933, 936 (5th Cir. 1999). “This policy, however, is counterbalanced by
considerations of social goals, justice, and expediency, a weighing process [that] lies largely
within the domain of the trial judge’s discretion.” Id. (internal quotation marks and citations
omitted). “In determining whether good cause exists to set aside a default judgment under Rule
60(b)(1) we examine the following factors: ‘whether the default was willful, whether setting it
aside would prejudice the adversary, and whether a meritorious defense is presented.’” Wooten v.
McDonald Transit Assocs., Inc., 788 F.3d 490, 500 (5th Cir. 2015) (citing Jenkens & Gilchrist v.
Groia & Co., 542 F.3d 114, 119 (5th Cir. 2008) (quoting Matter of Dierschke, 975 F.2d 181, 183
(5th Cir. 1992); accord In re Chinese–Manufactured Drywall Prods., 742 F.3d at 594). When, as
in this case, the Defendants’ neglect is at least a partial cause of their failure to respond, “the
defendant has the burden of showing by a preponderance of the evidence that its neglect was
excusable, rather than willful.” Id.
The Defendants’ argument to overturn the default judgment in this case fails on a simple
lack of evidence. Although the Defendants argue that they were misled by their previous counsel,
they have not presented any evidence, by way of affidavit or otherwise. The same lack of
evidence plagues the Defendants’ argument that the FLSA does not apply to them. The only
evidence submitted by Defendants is the emails between Plaintiff and Defense counsel. Although
these emails do not conflict with the Defendants arguments, they do not support them factually
either. These emails merely show that the Plaintiff’s counsel corresponded with the Defendant’s
counsel and made repeated attempts to inform the Defendants of the progression of the case and
to resolve the issues. The emails have no information about the Defendants’ communications
with their counsel, or the applicability of the FLSA. In short, the Defendants have not brought
forth any evidence that their neglect was excusable or that any defense they may have is
meritorious. In addition, the Court notes that now that the Plaintiff is proceeding pro se, it is
likely that setting aside the default judgment will prejudice her ability to prosecute her case.
Because the Defendants failed to carry their burden of establishing both that their neglect
was excusable, and that they have a meritorious defense to the Plaintiff’s claims, their Motion to
Set Aside  the Default Judgment is DENIED without prejudice to refiling of the same.
SO ORDERED on this the 7th day of July, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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