SANTIAGO v. SOUTHERN HEALTH PARTNERS et al

Filing 28

MEMORANDUM OPINION AND ORDER signed by MAGISTRATE JUDGE L. PATRICK AULD on 02/09/2016. IT IS ORDERED that the Motion to Set Aside Default 18 is GRANTED IN PART in that the Entry of Default 12 against Defendant Jessica and Defendant Maldonado is SET ASIDE, but the Motion to Set Aside Default is otherwise DEEMED MOOT. FURTHER that Defendant Maldonado shall have through and including March 1, 2016, to answer or otherwise respond to Plaintiff's Complaint. FURT HER that on or before March 1. 2016, SHP shall file under seal, its last known address for Defendant Jessica. FURTHER that the Clerk shall prepare a summons with Defendant Jessica's last known address as provided by SHP and that the United States Marshals Service shall serve that summons and Complaint on Defendant Jessica. The Clerk shall publicly docket only a redacted version of the Summons and/or Affidavit of Service as to Defendant Jessica. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

OSEAS SANTIAGO, JR.,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SOUTHERN HEALTH PARTNERS,
et al.,
Defendants.

1:15CV589

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on “Defendant Southern
Health

Partners

on

Behalf

of

Defendant

‘Nurse

Jessica’

and

Defendant PA Maldonado’s Motion to Set Aside Entry of Default and
to Quash Service of Defendant ‘Nurse Jessica’” (Docket Entry 18)
(the “Motion to Set Aside Default”).

For the reasons that follow,

the Court will set aside the Entry of Default (Docket Entry 12).1
I. BACKGROUND
Plaintiff’s Complaint asserts a cause of action under 42
U.S.C. § 1983 against Defendant Southern Health Partners (“SHP”),

1

The Entry of Default (and thus the decision to set aside or
to leave in effect such an entry) constitutes a pretrial matter
that does not dispose of any claim or defense; as a result, courts
treat motions of this sort as subject to disposition by a
magistrate judge under 28 U.S.C. § 636(b)(1)(A). See, e.g., Bailey
v. United Airlines, 279 F.3d 194, 204 (3d Cir. 2002); L & M Cos.,
Inc. v. Biggers III Produce, Inc., No. 3:08CV309–RJC–DCK, 2010 WL
1439411, at *8 & n.3 (W.D.N.C. Apr. 9, 2010) (unpublished). Under
these circumstances, the undersigned United States Magistrate Judge
will enter an order rather than a recommendation on Defendants’
request to set aside the Entry of Default.

Defendant

Jessica

Patterson,

Defendant

Manuel Maldonado,

RN

PA-C

(“Defendant
(“Defendant

Jessica”),

and

Maldonado”),

for

allegedly violating his federal constitutional rights by acts
and/or

omissions

amounting

to

deliberate

indifference

to

his

serious medical needs during his confinement at the Hoke County
Detention Center.

(Docket Entry 2.)2

monetary damages and injunctive relief.

The Complaint requests
(Id. at 3-4.)

The record reflects that Plaintiff addressed one “Summons in
a Civil Action” to “Nurse Jessica” and another Summons to “PA
Maldonado.”

(Docket Entry 6 at 3, 5; see also Docket Entry 10 at

2; Docket Entry 10-2 at 2.)

According to affidavits from the

United States Marshals Service, these Summonses and copies of
Plaintiff’s Complaint were sent by certified mail to “2030 Hamilton
Place Blvd, Suite 146 Chattanooga, TN 37421,” where an “unknown”
person signed for them.

(Docket Entries 10, 10-2.)

Neither Defendant Jessica nor Defendant Maldonado responded to
Plaintiff’s Complaint. (See Docket Entries dated Jul. 20, 2015, to
present.) Accordingly, Plaintiff filed a “Declaration for Entry of
Default” (Docket Entry 11), and the Clerk of Court entered default
against Defendant Jessica and Defendant Maldonado (Docket Entry

2

The Complaint identifies Defendant Jessica and Defendant
Maldonado as respectively, “Nurse Jessica” and “PA Maldonado.”
(See Docket Entry 2 at 3.)
2

12).3

Thereafter, Defendant Maldonado and SHP (on behalf of

Defendant

Jessica)

filed

the

Motion

to

Set

Aside

Default,

requesting that this Court set aside the Entry of Default under
Rule 55(c) of the Federal Rules of Civil Procedure (the “Rules”).
(Docket Entry 18.)4

In support of the Motion to Set Aside Default,

Defendants offer the Affidavits of Defendant Maldonado (Docket
Entry 18-2) and Janet Stephens (Docket Entry 18-1).5

Plaintiff

responded to the Motion to Set Aside Default, agreeing that the
Court should set aside the defaults against Defendant Jessica and
Defendant Maldonado.

(Docket Entry 24, ¶ 3.)

II. STATEMENT OF UNDISPUTED FACTS
For purposes of deciding the Motion to Set Aside Default, the
undisputed facts in Defendants’ affidavits establish that:

3

The Clerk declined to enter a default against SHP (see
Docket Entry 12), which filed an Answer (Docket Entry 17) to
Plaintiff’s Complaint shortly before bringing the Motion to Set
Aside Default.
4

The Motion to Set Aside Default also seeks to quash service
of the Summons on Defendant Jessica. (Docket Entry 18.) The Court
bears an obligation to assist Plaintiff in obtaining service of
process upon Defendant Jessica. See generally Greene v. Holloway,
No. 99-7380, 210 F.3d 361 (table), 2000 WL 296314, at *1 (4th Cir.
Mar. 22, 2000) (unpublished). Accordingly, the Court will order
that SHP provide the Clerk the last known address of Defendant
Jessica. Under these circumstances, the Court finds as moot the
request to quash service upon Defendant Jessica.
5

Janet Stephens is Vice President of Quality Assurance at
SHP’s corporate office in Chattanooga, Tennessee. (Docket Entry
18-1, ¶ 1.)
3

1.

SHP’s corporate office address is “2030 Hamilton Place

Blvd, Suite 140, Chattanooga, TN 37421.” (Docket Entry 18-1, ¶ 1.)
2.

Neither Defendant Jessica nor Defendant Maldonado worked

at SHP’s corporate office in Chattanooga, Tennessee.

(Id., ¶¶ 5,

8; Docket Entry 18-2, ¶ 3.)
3.

Defendant Jessica formerly worked for SHP at the Hoke

County Detention Center (Docket Entry 18-1, ¶ 3), but “has not
worked for SHP since November 2014” (id., ¶ 4).6
4.

“SHP has attempted to contact [Defendant Jessica] by

telephone but has been unable to do so.

[As of December 4, 2015],

SHP has not been able to contact [Defendant Jessica] to inform her
of the existence of th[is] lawsuit.”
5.

Defendant

Carolina.”
6.
an

Maldonado

(Id., ¶ 6.)

“reside[s]

in

Charlotte,

North

(Docket Entry 18-2, ¶ 2.)

Defendant Maldonado is “not employed by SHP but works as

independent

contractor”

(id.,

¶

1),

“provid[ing]

medical

services at the Hoke County Detention Center . . . pursuant to a
contract with SHP” (Docket Entry 18-1, ¶ 7; see also Docket Entry
18-2, ¶ 1 (same)).

6

Although Plaintiff states that “[Defendant Jessica]’s
provider was SHP when she violated [his] rights,” (Docket Entry 24,
¶ 1), Plaintiff does not dispute SHP’s assertion that Defendant
Jessica has not worked for SHP since November 2014 (see id. at 13).
4

7.

“[Defendant Maldonado] did not receive the original or a

copy of a Summons and/or Complaint in [this case] until December 3,
2015.”

(Docket Entry 18-2, ¶ 4.)
III. DISCUSSION

In his response, Plaintiff agrees that the Court should set
aside the entries of default.

(See Docket Entry 24, ¶ 3 (“I think

it would be fair for [Defendant] Maldonado and [Defendant] Jessica
to give their side of the story.”).)

Plaintiff’s consent coupled

with the United States Court of Appeals for the Fourth Circuit’s
“strong preference that, as a general matter, defaults be avoided
and that claims and defenses be disposed of on their merits,”
Colleton Prep. Acad., Inc. v. Hoover, Universal Inc., 616 F.3d 413,
417 (4th Cir. 2010), constitute sufficient grounds for granting the
Motion to Set Aside Default.
Moreover, the traditional Rule 55(c) analysis also favors
setting aside the defaults.

Under the Rules, “[t]he court may set

aside an entry of default for good cause.”

Fed. R. Civ. P. 55(c).

Per the Fourth Circuit,
[w]hen deciding whether to set aside an entry of default,
a district court should consider [1] whether the moving
party has a meritorious defense, [2] whether it acts with
reasonable promptness, [3] the personal responsibility of
the defaulting party, [4] the prejudice to the party, [5]
whether there is a history of dilatory action, and [6]
the availability of sanctions less drastic.
Payne v. Brake, 439 F.3d 198, 204–05 (4th Cir. 2006).

In light of

the preference for merits-based dispositions, see Colleton Prep.,

5

616 F.3d at 417, the Court must liberally construe Rule 55(c) “to
provide relief from the onerous consequences of defaults and
default judgments,” Lolatchy v. Arthur Murray, Inc., 816 F.2d 951,
954 (4th Cir. 1987) (internal quotation marks omitted).
i. Meritorious Defense
With respect to the first factor, “[a] meritorious defense
requires a proffer of evidence which would permit a finding for the
defaulting party . . . .”

Augusta Fiberglass Coatings, Inc. v.

Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988); see
also United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982)
(“[A]ll

that

is

necessary

to

establish

the

existence

of

a

‘meritorious defense’ is a presentation or proffer of evidence,
which, if believed, would permit either the Court or the jury to
find for the defaulting party.”); Maryland Nat’l Bank v. M/V
Tanicorp I, 796 F. Supp. 188, 190 (D. Md. 1992) (“The mere
assertion of a meritorious defense is not enough, Defendant must
state the underlying facts to support the defense.”).
In this case, Plaintiff alleges that Defendant Jessica and
Defendant Maldonado showed “diliberate [sic] indifference to [his]
serious medical needs.”

(Docket Entry 2 at 4.)

“Deliberate

indifference is a very high standard,” Grayson v. Peed, 195 F.3d
692, 695 (4th Cir. 1999), requiring Plaintiff to prove (in addition
to the existence of a serious medical need), two aspects of
Defendants’ mental state:

6

First, the evidence must show that the official in
question subjectively recognized a substantial risk of
harm. It is not enough that the [official] should have
recognized it; [he or she] actually must have perceived
the risk.
Second, the evidence must show that the
official in question subjectively recognized that his [or
her] actions were inappropriate in light of that risk.
As with the subjective awareness element, it is not
enough that the official should have recognized that his
[or her] actions were inappropriate; the official
actually must have recognized that his [or her] actions
were insufficient.
Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)
(internal

citations,

omitted).

“The subjective component therefore sets a particularly

high bar to recovery.”

emphasis,

and

internal

quotation

marks

Iko v. Shreve, 535 F.3d 225, 241 (4th Cir.

2008).
Defendant Maldonado’s affidavit provides evidence supporting
a “meritorious defense” to Plaintiff’s claim.

In his affidavit,

Defendant Maldonado asserts that “[he] was never deliberately
indifferent to the medical needs of [Plaintiff].

[He] provided or

caused to be provided to [Plaintiff] all care that [he] deemed to
be medically necessary.”

(Docket Entry 18-2, ¶ 7.)

Defendant

Maldonado then details Plaintiff’s medical treatment from March
2013 through September 2015.

(Id., ¶ 8.)

Finally, Defendant

Maldonado asserts that “[Plaintiff] was provided medical attention
and we responded to his sick call requests.
his prescribed medication and had X-rays.
always responsive to his medical needs.”

7

[Plaintiff] received
Medical personnel were

(Id., ¶ 9.)

Defendant Maldonado’s affidavit thus contends that he did not
subjectively recognize a substantial risk of harm or perceive any
risk in providing (or failing to provide) Plaintiff with medical
treatment.

As such, Defendant Maldonado’s affidavit challenges in

a non-conclusory fashion the Complaint’s allegation that Defendant
“Maldonado showed diliberate [sic] indifference to [Plaintiff’s]
serious medical

needs”

(Docket

Entry

2

at 4).

Accordingly,

Defendant Maldonado has shown a meritorious defense to this action.
This factor thus weighs in favor of setting aside the Entry of
Default as to Defendant Maldonado.
Defendant Jessica, meanwhile, has not appeared in the lawsuit
and thus has not provided information regarding any meritorious
defense.

On

these

facts,

this

factor

neither

supports

nor

undermines the request to set aside the entry of default as to
Defendant Jessica.
ii. Reasonable Promptness
Second, the Motion to Set Aside Default was filed less than
five months after Plaintiff initiated this action and only eight
days after the entry of default.

(See Docket Entries 2, 12, 18.)

Recognizing that “[w]hether a party has taken ‘reasonably prompt’
action . . . must be gauged in light of the facts and circumstances
of each occasion,” Moradi, 673 F.2d at 727, the Court notes that
other courts addressing this issue have found much longer delays
reasonable, see, e.g., Lolatchy, 816 F.2d at 952–54 (permitting

8

case to proceed on the merits although moving party delayed ten
months after default entered before moving to set aside default);
Vick v. Wong, 263 F.R.D. 325, 330 (E.D. Va. 2009) (finding that
reasonable promptness factor weighed in favor of setting aside
default where moving party did not respond for more than two months
after default entered).

Accordingly, the second factor favors

setting aside the Entry of Default.
iii. Personal Responsibility
Third,

neither

Defendant

Jessica

nor

Defendant

appears responsible for the Entry of Default.

Maldonado

The Affidavits of

Service reveal that Plaintiff requested service of both Defendant
Jessica and Defendant Maldonado at SHP’s corporate office in
Chattanooga, Tennessee. (See Docket Entries 10, 10-2 (Summonses to
Defendant

Jessica

and

Defendant

Maldonado

addressed

to

“2030

Hamilton Place Blvd, Suite 146 Chattanooge, TN 27421”); Docket
Entry 18-1, ¶ 1 (listing SHP’s corporate office address as “2030
Hamilton Place Blvd, Suite 140, Chattanooga, TN 27421”).)

Neither

Defendant Jessica nor Defendant Maldonado works at SHP’s corporate
office in Chattanooga, Tennessee.
Docket Entry 18-2, ¶ 3.)

(Docket Entry 18-1, ¶¶ 5, 8;

Moreover, although Plaintiff filed this

action in July 2015 (see Docket Entry 2 at 1), Defendant Jessica
“has not worked for SHP since November 2014” (Docket Entry 18-1, ¶
4).

In addition, “SHP has been unable to contact [her] to inform

her of the existence of th[is] lawsuit.”

9

(Id., ¶ 6.)

Defendant Maldonado “reside[s] in Charlotte, North Carolina.”
(Docket Entry 18-2, ¶ 2.)

He is “an independent contractor who

provides medical services at the Hoke County Detention Center . . .
pursuant to a contract with SHP.”

(Docket Entry 18-1, ¶ 7; see

also Docket Entry 18-2, ¶ 1 (same).)

Defendant Maldonado contends

that he “did not receive the original or a copy of a Summons and/or
Complaint in [this action] until December 3, 2015” (Docket Entry
18-2, ¶ 4), after the Clerk entered default against him (see Docket
Entry 12 (Entry of Default entered Nov. 27, 2015)).
Maldonado

further

asserts

that

he

never

received

Defendant
Plaintiff’s

“Declaration for Entry of Default” (Docket Entry 11), although he
now “understand[s] that a lawsuit has been filed against [him] and
an Entry of Default has been entered. . . . [and] [he] request[s]
that the Court lift the Entry of Default to allow [him] to defend
the claims made against [him] in this lawsuit.”

(Docket Entry 18,

¶¶ 5, 10.)
It thus appears that Defendant Jessica and Defendant Maldonado
were not properly served in this action.

See Fed. R. Civ. P. 4(e)

(providing the Rules for serving an individual within a judicial
district of the United States); see also N.C. R. Civ. P. 4(j)(1)
(providing the North Carolina rule for service upon a “natural
person”); Tenn. R. Civ. P. 4.04(1) (providing the Tennessee rule
for service upon an “individual”). As a result, Defendants bear no

10

responsibility for any default.

This factor therefore weighs in

favor of setting aside the Entry of Default.
iv. Prejudice
Fourth,
Plaintiff.

setting

aside

the

default

will

not

prejudice

“In the context of a motion to set aside an entry of

default, as in other contexts, delay in and of itself does not
constitute prejudice to the opposing party.”
F.3d

at

418.

Further,

“no

cognizable

Colleton Prep., 616

prejudice

inheres

in

requiring a plaintiff to prove a defendant’s liability, a burden
every plaintiff assumes in every civil action filed in every
federal court.”

Id. at 419.

Instead, relevant prejudice involves

“missing witness[es] . . . whose testimony was made unavailable by
the delay; . . . dead witness[es]; . . . records made unavailable
by the delay[;] . . . [or] evidence for the plaintiff which could
have

been

presented

earlier,

prevented by the delay.”

the

presentation

of

Lolatchy, 816 F.2d at 952.

which

was

The absence

of such prejudice here weighs in favor of setting aside the Entry
of Default.
v. History of Dilatory Action
Fifth, neither Defendant Jessica nor Defendant Maldonado has
engaged in dilatory litigation conduct.
Jul. 20, 2015, to present.)

(See Docket Entries dated

Therefore, this factor supports

setting aside the Entry of Default.

11

vi. Less Drastic Sanctions
Sixth, “[n]either party has suggested alternative sanctions,
but the Court [can] certainly consider any suggestions that are
brought

before

it,

such

as

a

motion

for

reimbursement

of

Plaintiff’s costs associated with [his] . . . response to [the]
[M]otion to [S]et [A]side [D]efault.

Therefore, this factor

counsels in favor of setting aside default.”

Pinpoint IT Servs.,

LLC v. Atlas IT Export Corp., No. 2:10CV516, 2011 WL 2748685, at
*15 (E.D. Va. Jul. 13, 2011) (unpublished) (citation omitted).
vii. Summation of Factors
In sum, the second, third, fourth, fifth, and sixth Payne
factors favor setting aside Defendant Jessica’s default, with the
remaining factor neutral.

Meanwhile, all six Payne factors favor

setting aside Defendant Maldonado’s default.

The Court thus finds

“good cause” to set aside the Entry of Default against Defendant
Jessica and Defendant Maldonado.
IV. CONCLUSION
Plaintiff agrees, and good cause exists, to set aside the
Entry of Default against Defendant Jessica and Defendant Maldonado.
IT IS THEREFORE ORDERED that the Motion to Set Aside Default
(Docket Entry 18) is GRANTED IN PART in that the Entry of Default
(Docket Entry 12) against Defendant Jessica and Defendant Maldonado
is hereby SET ASIDE, but the Motion to Set Aside Default is
otherwise DEEMED MOOT.
12

IT IS FURTHER ORDERED that Defendant Maldonado shall have
through and including March 1, 2016, to answer or otherwise respond
to Plaintiff’s Complaint.
IT IS FURTHER ORDERED that, on or before March 1, 2016, SHP
shall file under seal, pursuant to this Court’s Local Rules 5.4(a)
and (g)(1), its last known address for Defendant Jessica.
IT IS FURTHER ORDERED that the Clerk shall prepare a summons
with Defendant Jessica’s last known address as provided by SHP and
that the United States Marshals Service shall serve that summons
and the Complaint on Defendant Jessica.

The Clerk shall publicly

docket only a redacted version of the Summons and/or Affidavit of
Service as to Defendant Jessica.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February

9

, 2016

13