Hinton, Jr. v. Pike County et al

Filing 29

ORDER denying Plaintiff's 27 Motion for Default Judgment. Signed by District Judge Keith Starrett on August 4, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY HINTON, JR.
V.

PLAINTIFF
CIVIL ACTION NO. 5:16-CV-14-KS-MTP

PIKE COUNTY, et al.

DEFENDANTS
ORDER

For the reasons provided below, the Court denies Plaintiff’s Motion for Default
Judgment [27].
A.

Background
This is a civil rights case filed by a prisoner with in forma pauperis status. On

April 12, 2016, the Court directed [11] the Clerk to issues a notice of lawsuit and
request for waiver of service to the Defendants. Defendants did not execute the waiver,
and the Court later entered an order [20] directing the Clerk to issue summons and
ordering the Marshals to serve Defendants. The Clerk issued summons on the same
day [21].
On July 6, 2016, the Marshals filed a return of summons executed as to Pike
County, Mississippi. According to the return [22], Pike County was served on June 21,
2016. The Marshals also filed a return of summons unexecuted [23] as to the individual
Defendants Harold, Sheppard, Adams, and Irby. On July 13, 2016, Defendants Pike
County, Sheppard, Adam, and Harold filed a waiver [26] of service of summons and an
Answer [25] to Plaintiff’s Complaint.
On July 29, 2016, Plaintiff filed a Motion for Default Judgment [27], which the

Court now considers.
B.

Discussion
Plaintiff’s motion is somewhat inscrutable, but he apparently offers two

arguments. First, he argues that Defendants’ counsel intended to file the waiver of
service in May but forgot to do so. In support of this argument, he notes that the
certificate of service attached to Defendants’ Answer [25] is dated May 19, 2016.
A request for waiver of service is merely what it purports to be – a request.
Defendants are not required to waive service, and this Court can not order them to do
so. See, e.g. FED. R. CIV. P. 4(d). Even if Defendants’ counsel forgot to respond to the
request for waiver, that would not constitute a default.
Next, Plaintiff argues that Defendants’ counsel perpetrated a fraud on the Court
by inserting the date of June 30, 2016, as the date on which the request for waiver of
service [26] was sent, rather than April 12, 2016, the date on which the Clerk actually
sent the request [12].
The Court thoroughly examined the docket and cannot determine why the
waiver of service form [26] filed by Defendants provides June 30, 2016, as the date on
which the request was sent. However, Plaintiff provided no evidence that Defendants’
counsel perpetrated a fraud on the Court. Moreover, neither Defendants nor their
counsel had any incentive to intentionally misrepresent the date on which the request
for waiver was sent, insofar as they were not obligated to waive service. Even if
Defendants’ counsel had intentionally misrepresented the date on which the request
for waiver was sent, it would not merit an entry of default against the Defendants.

C.

Conclusion
“Default judgments are a drastic remedy, not favored by the Federal Rules and

resorted to by courts only in extreme situations.” Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989). Accordingly, “federal courts
should not be agnostic with respect to entry of default judgments . . . .” Lacy v. Sitel
Corp., 227 F.3d 290, 292 (5th Cir. 2000). “Where there are no intervening equities any
doubt should, as a general proposition, be resolved in favor of . . . securing a trial upon
the merits.” Id. For all these reasons, the Court denies Plaintiff’s Motion for Default
Judgment [27].
SO ORDERED AND ADJUDGED, on this, the 4th day of August, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE