Ishman v. Mason et al

Filing 48

ORDER denying 42 Motion to Set Aside Default. Signed by District Judge Carlton W. Reeves on 07/19/2023. (RY)

Case 3:20-cv-00442-CWR-LGI Document 48 Filed 07/19/23 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
LAMARCUS T. ISHMAN,
Plaintiff,
CAUSE NO. 3:20-CV-442-CWR-LGI

v.
SHERIFF VICTOR MASON, et al.,
Defendants.

ORDER
Before the Court is the Defendants’ Motion to Set Aside Entry of Default. Docket No.
42. The matter is fully briefed and ready for adjudication. Upon review, the Motion will
be denied.
I.

Facts and Procedural History
On July 6, 2020, Plaintiff LaMarcus T. Ishman, a pretrial detainee held in Hinds

County’s Raymond Detention Center, filed a Complaint against Defendants Hinds
County Sheriff Victor Mason and Major Rushain 1 for injuries he sustained during his
detention. Docket No 1. On September 9, 2020, Magistrate Judge Linda R. Anderson
directed the Clerk of Court for the Southern District of Mississippi to issue a Notice of
Lawsuit and Request to Waive Service of a Summons to each Defendant. Docket No. 10. The
Clerk sent a waiver to each Defendant that same afternoon. Docket Nos. 11 and 12. The

Defendants acknowledge that Mary Rushing (not “Rushain”) is the former warden of the
Raymond Detention Center. Docket No. 42 at 1 n.1.
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document clarified that failure to timely sign the waiver would result in service of the
Complaint and summons by the United States Marshal. Docket No. 10. Neither
Defendant responded to the waiver.
Noting the non-response, on October 20, 2020, Judge Anderson directed the U.S.
Marshal’s Office to serve the defendants. Docket No. 14. In accordance with the waiver’s
foreshadowing, a Deputy Marshal served the Defendants on November 5, 2020. The
Returns state that service was made upon counsel for the Hinds County Sheriff’s
Department, Claire Barker. Docket Nos. 17 and 18. Receipt of service was filed on
November 13, 2020. Id.
On April 15, 2021, the Clerk of Court entered default against the Defendants “for
their failure to answer, plead, or otherwise defend against” Ishman’s Complaint. Docket
No. 20.
After more than a year, the Defendants’ silence broke on September 20, 2022, when
attorney John C. Hall, II entered his appearance on their behalf. Three months later, the
Defendants filed the present Motion to Set Aside Entry of Default. Docket No. 42.
II.

Legal Standard
Rule 55 of the Federal Rules of Civil Procedure governs the entry of default and

default judgment. It provides that a court “may set aside an entry of default for good
cause, and it may set aside a final default judgment under Rule 60(b).” Fed. R. Civ. P.
55(c). Rule 60(b), in turn, provides that “[o]n 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:”
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(1)
(2)
(3)
(4)
(5)
(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
any other reason that justifies relief.

Fed. R. Civ. P. 60(b).
To set aside entry of default, the central question is whether the movant has shown
“good cause.” Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000). That question hinges on
“equitable principles.” Id. In this Circuit, courts must consider the following factors: “(1)
whether the default was willful; (2) whether setting aside the default judgment would
prejudice Plaintiff[]; and (3) whether [the defendant] presented a meritorious defense.”
In re Chinese Manufactured Drywall Prods. Liabl. Litig., 742 F.3d 576, 594 (5th Cir. 2014)
(citation omitted).
These factors are not exhaustive, however, as courts may also consider whether
“(1) the public interest was implicated, (2) there was a significant financial loss to the
defendant, and (3) the defendant acted expeditiously to correct the default.” Matter of
Dierschke, 975 F.2d 181, 184 (5th Cir. 1992) (citations omitted). “A finding of willful default
ends the inquiry, for ‘when the court finds an intentional failure of responsive pleadings
there need be no other finding.’” Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490,
500 (5th Cir. 2015) (citation omitted).

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III.

Discussion
The Fifth Circuit defines willfulness as an “intentional failure to respond to

litigation.” In re OCA, Inc., 551 F.3d 359, 374 n.32 (5th Cir. 2008). “When . . . a defendant’s
neglect causes its failure to respond, the defendant has the burden to convince the court
that its neglect was excusable, rather than willful, by a preponderance of the evidence.”
Vaughn v. Nebraska Furniture Mart, LLC, No. 20-10775, 2021 WL 3775313, at *2 (5th Cir.
Aug. 25, 2021) (citation omitted).
The Defendants assert that Ishman never effectuated proper service on either
Defendant. Ishman’s failure, they argue, placed “no responsibility [on the Defendants] to
avail themselves in this litigation.” Docket No. 42 at 4. By contrasting their failure to
respond with other cases where parties intentionally lied under oath or actively
contributed to protracted litigation, the Defendants aver that the facts of this case do not
rise to the level of willfulness. Id.
The Fifth Circuit’s decision in Wooten is instructive. In that case, the district court
held that the defendant company willfully defaulted. Wooten, 788 F.3d at 501. The Fifth
Circuit agreed. Merely reasserting that service was not properly executed, absent any
explanation “for what happened between its presumed receipt and process and the date
on which it retained counsel,” did not amount to a mistake or inadvertence. Id. Such
behavior, the Fifth Circuit continued, “encroached on the sort of behavior we have
decried as ‘play[ing] games’ with the court.” Id. (citation omitted).
Under this standard, the Defendants’ actions (or lack thereof) constitute
willfulness.
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Substantial evidence exists to suggest that the Defendants’ failure to respond was
purposeful. The Fifth Circuit has “affirmed a lower court’s finding of willfulness where
the lower court determined that the defendant simply ‘chose to play games with the
court’ and ‘chose to make a decision that he hadn’t been served when, in fact, he had.’”
Jenkens & Gilchrist v. Groia & Co., 542 F.3d 114, 123 (5th Cir. 2008) (citation omitted). There,
the appellate court instructed us that “perfection of service is not determinative—the
defendant’s knowledge of the perfected service, and the defendant’s actions post-service
also play a role in measuring the willfulness of a defendant’s default.” Id.
The Court recounts that Ishman filed his Complaint on July 6, 2020, and Judge
Anderson directed the Clerk of Court to issue a notice of lawsuit and request waiver of
service two months later. Docket Nos. 1, 11, and 12. Those requests were ignored. Next,
the United States Marshal’s Office proceeded to serve the Defendants through counsel.
Docket Nos. 16 and 17. That service was made on November 5, 2020. Id. Yet now, the
Defendants contend that Barker “was not authorized to accept service for either
Defendant.” Docket No. 42 at 2.
This contention is puzzling. A review of this Court’s docket illustrates that Barker
has previously accepted service on behalf of the Sheriff in his official capacity. See United
States of America v. Hinds County et al., No. 3:16-CV-489, Docket No. 7 (S.D. Miss. July 6,
2016) (entry noting signed waiver of service). Presumably, Barker knew she was being
served with this lawsuit and she accepted service. Nonetheless, the Defendants
seemingly ask this Court to surmise, without any corroborating evidence from Ms.
Barker, that she was incapable of accepting service upon the Sheriff in this particular
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matter. The Court respectfully declines. The Defendants have failed to demonstrate that
Barker lacked the authority to accept service. The Deputy Marshal’s Returns of Service
alone are sufficient evidence for this Court to conclude that service was made.
To the extent Ms. Barker was unclear whether the Sheriff was sued in his official
or individual capacity, she was free to reach out to Mr. Ishman or file a motion for a more
definite statement. See Wooten, 788 F.3d at 500 (“Moreover, if McDonald Transit believed
that Wooten’s allegations were inadequate to support the requested relief or even to
enable an intelligent response, it simply could have moved for a more definite statement
or to dismiss the case for failure to state a claim.”). Yet she did not. Neither Barker nor
the Defendants have proffered any explanation for their silence in between their receipt
of process and the date Hall joined us. Instead, they repeat the same insufficient service
of process argument. That is not enough.
For these reasons, the Defendants have failed to demonstrate “good cause”
excusing their default. 2
IV.

Conclusion
The Defendants’ Motion to Set Aside Entry of Default is DENIED.
What remains before the Court is Ishman’s Motion for Default Judgment. Docket No.

34. The Court will take that up in due course. 3 No matter how that Motion is adjudicated,

2 Having found willfulness, the Court declines to consider factors two through six in its analysis.
On an initial review, however, those factors present a mixed bag: some favor a finding of “good cause,”
while others counsel against it.
3 As this Court does in each of its cases, it encourages the parties to evaluate their positions based
on any rulings this Court issues. This is an appropriate time to remind these parties that they should
attempt to resolve this dispute. If they desire to do so, they should contact the Magistrate Judge’s Chambers
within 14 days for a settlement conference.

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however, further litigation appears necessary. If the Complaint is well-pleaded, then a
Default Judgment will issue and the Defendants will presumably appeal. If, however, the
Complaint is not well-pleaded, then under the applicable Fifth Circuit standard, Mr.
Ishman is entitled to amend once to set forth his best case. Whether either course of action
is in the parties’ mutual best interests is unclear.
SO ORDERED, this the 19th day of July, 2023.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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