United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
above-entitled civil action is before the Court on Plaintiff
Adrian Cain's Motion for Default Judgment (the
“Motion”). (Doc. 28). Cain seeks a judgment by
default against Defendants Consumers Solutions Group, LLC
(“CSG”) and Jonathan C. Frank & Associates,
LLC (“Jonathan Frank”).
filed the Complaint in this action on December 19, 2016, and
the Amended Complaint on August 18, 2017. (Docs. 1, 27). In
her Amended Complaint, Cain alleges that the Defendants
violated Fair Debt Collection Practices Act. (Id. at
served on December 21, 2016. (Doc. 6). On January 24, 2017,
after CSG failed to appear, answer, or otherwise defend, Cain
filed a Motion for Entry of Default. (Doc. 10). The Clerk
filed the Entry of Default against CSG on January 25, 2017.
Frank was served on May 2, 2017. (Doc. 19). On May 24, 2017,
after Jonathan Frank failed to appear, answer, or otherwise
defend, Cain filed a Motion for Entry of Default. (Doc. 20).
The Clerk filed the Entry of Default against Jonathan Frank
on May 26, 2017. (Doc. 22).
August 4, 2017, Cain moved to dismiss his class claims
against CSG. (Doc. 25). The Court then ordered Cain “to
file an amended complaint that eliminates the class
allegations in Count IV.” (Doc. 26 at 3). Cain was
instructed to seek leave from the Court in order to make any
other change. (See id.). Cain filed her Amended
Complaint on August 18, 2017. (Doc. 27). She filed her Motion
for Default Judgment that is the subject of this Memorandum
Opinion and Order on February 15, 2018. (Doc. 28). As support
for the Motion for Default Judgment, Cain submitted an
affidavit. (Doc. 28-2).
Court ordered the Defendants to show cause by April 11, 2018,
why the motion should not be granted. (Doc. 29). The Court
received an untimely opposition to Cain's Motion on May
4, 2018. (Doc. 36). In the opposition, Defendants ask the
Court to deny the motion for default judgment and allow them
to file an answer. (See id.). Defendants
give two reasons for such relief. (See Id. at 1-2).
First, they argue that “service was improper” for
both Defendants. (See Id. at 1). Second, they argue
that “defaults are disfavored and cases should be
judged on the merits.” (Id. at 2). The Court
will treat the opposition as a motion to set aside the
Clerk's entry of default.
court may set aside an entry of default for good
cause.” Fed.R.Civ.P. 55(c). The Eleventh Circuit has
“ ‘Good cause' is a mutable standard, varying
from situation to situation. It is also a liberal one-but not
so elastic as to be devoid of substance.” Coon v.
Grenier, 867 F.2d 73, 76 (1st Cir.1989). We recognize
that “good cause” is not susceptible to a precise
formula, but some general guidelines are commonly applied.
Id. Courts have considered whether the default was
culpable or willful, whether setting it aside would prejudice
the adversary, and whether the defaulting party presents a
meritorious defense. Rafidain Bank, 15 F.3d at 243;
see also Robinson v. United States, 734 F.2d 735,
739 (11th Cir.1984). We note, however, that these factors are
not “talismanic, ” and that courts have examined
other factors including whether the public interest was
implicated, whether there was significant financial loss to
the defaulting party, and whether the defaulting party acted
promptly to correct the default. E.g., Dierschke v.
O'Cheskey, 975 F.2d 181, 184 (5th Cir.1992).
“Whatever factors are employed, the imperative is that
they be regarded simply as a means of identifying
circumstances which warrant the finding of ‘good
cause' to set aside a default.” Id.
However, if a party willfully defaults by displaying either
an intentional or reckless disregard for the judicial
proceedings, the court need make no other findings in denying
relief. Shepard Claims Service, Inc. v. William Darrah
& Associates, 796 F.2d 190, 194-95 (6th Cir.1986).
Compania Interamericana Export-Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951-52
(11th Cir. 1996). “Where a plaintiff's service of
process is insufficient, a court may have good cause to set
aside an entry of default because the court lacked personal
jurisdiction over the defendant and, as a result, had no
power to render judgment against it.” Thomas v.
Bank of America, N.A., 557 Fed.Appx. 873, 875 (11th Cir.
2014) (citing sources).
are seen with disfavor because of the strong policy of
determining cases on their merits.” Florida
Physician's Ins. Co., Inc. v. Ehlers, 8 F.3d 780,
783 (11th Cir. 1993) (citing sources). “The defendant
bears the burden of establishing good cause to set aside an
entry of default.” Insituform Technologies, Inc. v.
Amerik Supplies, Inc., 588 F.Supp.2d 1349, 1352 (N.D.Ga.
2008) (citing sources).
Eleventh Circuit “review[s] for abuse of discretion a
district court's denial of a motion to set aside an entry
of default.” Annon Consulting, Inc. v. BioNitrogen
Holdings, Corp., 650 Fed.Appx. 729, 732 (11th Cir. ...