Pinkston v. Mississippi Department of Corrections et al
ORDER denying 36 Motion for Default Judgment; granting 81 Motion to Set Aside Default. Signed by District Judge Debra M. Brown on 3/5/18. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
MISSISSIPPI DEPARTMENT OF
CORRECTIONS, et al.
This prisoner civil rights action is before the Court on Chaz Pinkston’s motion for default
judgment, Doc. #36; and Keba Taylor’s motion to set aside default, Doc. #81.
On or about March 24, 2017, Chaz Pinkston, acting pro se, filed a complaint in this Court,
naming as defendants the Mississippi Department of Corrections and various individuals,
including Keba Taylor. Doc. #1.
On August 14, 2017, following a Spears hearing, United States Magistrate Judge David A.
Sanders issued an order stating, in relevant part:
Counsel for the Mississippi Department of Corrections (“MDOC”) has agreed to
accept service of process on behalf of Defendants. A responsive pleading is due on
behalf of the defendants by September 5, 2017. Should counsel accepting service
demonstrate that he cannot represent the defendant, he must notify the court
immediately of the defendant’s last known address so the court may effect process
upon that defendant under 28 U.S.C. § 1915(d).
Doc. #16 at 1 (emphases omitted).
Taylor did not file an answer by September 5, 2017. On or about September 6, 2017,
Pinkston filed against Taylor a motion seeking entry of default and a motion for default judgment.
Doc. #35; Doc. #36. On September 13, 2017, Taylor, without seeking leave of the Court, filed an
untimely answer. Doc. #37. The same day, Judge Sanders issued an order denying Pinkston’s
motion for entry of default on the ground that this Court likely would not grant a default judgment
because Taylor filed an answer and because the Prison Litigation Reform Act does not allow for
entry of a default judgment. Doc. #38.
On January 3, 2018, this Court vacated Judge Sanders’ order and directed the Clerk of the
Court to enter default against Taylor. Doc. #79. The Clerk entered default the same day. Doc.
#80. Six days later, Taylor filed a motion to set aside default. Doc. #81. Pinkston responded in
opposition to the motion. Doc. #89. Taylor did not reply.
Taylor argues that the default should be set aside because, contrary to Judge Sanders’
earlier order, his counsel “never agreed to accept service of process on behalf of the Defendants in
this action.” Doc. #82 at 1. Taylor further argues that “even if counsel had agreed to accept service
of process, … no process has been issued to be accepted.” Id. Finally, Taylor contends that the
default should be set aside because the failure to answer was not willful. Id. at 5.
Pursuant to Federal Rule of Civil Procedure 55(c), “[t]he court may set aside an entry of
default for good cause.” Insufficient service of process constitutes good cause to set aside an entry
of default. See, e.g., Saucier v. United States, No. 1:13-cv-82, 2014 WL 1783070, at * 3–4 (S.D.
Miss. May 5, 2014) (setting aside default for insufficient service of process); Francois v. Parish,
No. 14-338, 2014 WL 4954643, at *2 (E.D. La. Oct. 2, 2014) (same). Pinkston, in his response to
Taylor’s motion, does not dispute that service of process was never issued or served but argues
that Taylor “admit[ted]” to the default by arguing that the failure to answer was not willful. Doc.
#90 at 1–2.
Upon consideration, the Court concludes that Taylor was not properly served with process
and that, therefore, the entry of default should be set aside. In reaching this conclusion, the Court
rejects Pinkston’s unsupported argument that Taylor’s argument regarding willfulness abrogated
the service requirement. Accordingly, Taylor’s motion to set aside default  is GRANTED.
Having concluded that the default should be set aside, Pinkston’s motion for default judgment 
premised on Taylor’s alleged default is DENIED.
SO ORDERED, this 5th day of March, 2018.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
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