Miller v. West Virginia Division of Corrections and Rehabilitation et al
MEMORANDUM OPINION AND ORDER denying 15 MOTION for Default Judgment Pursuant to Rule 55(b)(2), FRCivP; granting the 16 MOTION to Set Aside Default; granting 18 MOTION to Set Aside Default; further directing that the 12 Entry of Default be set aside. Signed by Judge Irene C. Berger on 9/8/2021. (cc: counsel of record; any unrepresented party) (lca)
Case 2:21-cv-00059 Document 22 Filed 09/08/21 Page 1 of 4 PageID #: 110
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:21-cv-00059
WEST VIRGINIA DIVISION OF CORRECTIONS
AND REHABILITATION, et al.,
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiff’s Motion for Default Judgment for a Sum to Be
Determined by Evidentiary Hearing (Document 15), Defendant West Virginia Division of
Corrections and Rehabilitation’s Motion to Set Aside Entry of Default (Document 16), the
Memorandum of Law in Support of Motion to Set Aside Entry of Default Against Defendant West
Virginia Division of Corrections and Rehabilitation (Document 17), the Defendants’ Motion to
Set Aside Default (Document 18), Defendants Griffith, Adams, and Morris’ Memorandum of Law
in Support of Their Motion to Set Aside Default (Document 19), the Plaintiff’s Response to
Defendants’ Motion to Set Aside Default (Document 20), and Defendants’ West Virginia Division
of Corrections and Rehabilitation, CO Dale Griffith, Counselor Ryan Adams, and Counselor
Morris’ Joint Reply to Plaintiff’s Response to Their Motions to Set Aside Default (Document 21).
Case 2:21-cv-00059 Document 22 Filed 09/08/21 Page 2 of 4 PageID #: 111
The Plaintiff filed an amended complaint on April 22, 2021, and submitted proposed
summonses on April 23, 2021. The Defendants were served, and answers were due on June 8,
2021. On June 25, 2021, the Court entered an order directing the Clerk to enter default, and on
June 29, 2021, the Entry of Default by Clerk (Document 12) was docketed. The Plaintiff filed his
motion for default judgment on July 12, 2021, and the Defendants filed their motions to set aside
default on that same date.
The Plaintiff alleges that he was injured in an attack by his cellmate after the Defendants
had been made aware that the cellmate posed a threat. The Defendants are the West Virginia
Division of Corrections and Rehabilitation (WVDCR) and three staff members at the Northern
The individual Defendants indicate that they provided the complaints to the administration
at the Northern Regional Jail promptly upon being served so that the insurer for the State of West
Virginia could be notified to provide a defense, and the WVDCR likewise indicates that it promptly
notified the Board of Risk and Insurance Management of the suit. 1 Counsel was not assigned
until June 30, 2021. The Defendants argue that they followed standard procedure to initiate a
defense, and an error by someone else caused a delay in the response. They state that there is no
history of dilatory action and contend that they responded promptly when made aware of the entry
of default. The Defendants further argue that the Plaintiff will not be prejudiced if default is set
aside, beyond being required to prove his case. They also assert that they have meritorious
defenses to this action and default and urge the Court to permit the matter to proceed to
adjudication on the merits.
1 These assertions are contained in the Defendants’ briefs and not supported by affidavits or documentation.
Case 2:21-cv-00059 Document 22 Filed 09/08/21 Page 3 of 4 PageID #: 112
The Plaintiff argues that the Defendants’ failure to supply affidavits or other evidence to
support their explanation for the failure to timely respond to the amended complaint supports
finding that they have not produced good cause to set aside default.
Under the Federal Rules of Civil Procedure, a court may set aside an entry of default for
good cause or pursuant to Rule 60(b). Fed. R. Civ. P. 55(c). The Fourth Circuit has established
that district courts should consider the following factors in considering motions to set aside default
pursuant to Rule 55(c): “whether the moving party has a meritorious defense, whether it acts with
reasonable promptness, the personal responsibility of the defaulting party, the prejudice to the
party, whether there is a history of dilatory action, and the availability of sanctions less drastic.”
Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006). It has also
“repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that
claims and defenses be disposed of on their merits.” Colleton Preparatory Acad., Inc. v. Hoover
Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010).
The Court finds that the entry of default should be set aside to permit resolution on the
merits. Procedural information within the knowledge of counsel and parties is often submitted in
a filing without supporting evidence. The information presented here is of a similar nature related
to the processes utilized by the Defendants, their employer, their insurer, and counsel to initiate a
defense. Even if the Court disregarded the reasons for the failure to timely respond, however, the
existence of potentially meritorious defenses, the brief delay and prompt response to the entry of
default, the lack of any prejudice to the Plaintiff, the absence of any history of dilatory action, and
the strong preference for resolution on the merits would all weigh in favor of setting aside the entry
Case 2:21-cv-00059 Document 22 Filed 09/08/21 Page 4 of 4 PageID #: 113
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Plaintiff’s Motion for Default Judgment for a Sum to Be Determined by Evidentiary Hearing
(Document 15) be DENIED and that Defendant West Virginia Division of Corrections and
Rehabilitation’s Motion to Set Aside Entry of Default (Document 16) and the Defendants’ Motion
to Set Aside Default (Document 18) be GRANTED. The Court further ORDERS that the Entry
of Default by Clerk (Document 12) be SET ASIDE.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
September 8, 2021
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