Opinion
C/A No.: 4:18-2348-MGL-KDW
04-06-2020
Anson McNeil, Jr., Plaintiff, v. Ofc. Smith and Ofc. Donald R. Snyder Defendants.
REPORT AND RECOMMENDATION
Anson McNeil, Jr. ("Plaintiff"), a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. This matter is before the court on Plaintiff's Motion for More Definite Ruling, ECF No. 51, and Defendants' Motion to Set Aside Default, ECF No. 52. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the District Court. I. Discussion
A. Motion for a More Definite Ruling
Plaintiff contends the Entry of Default entered on September 12, 2019, did not include all Defendants. ECF No. 51. Plaintiff alleges he included the Myrtle Beach City Police Department as a Defendant when he filed his Complaint and agues his judgment is not complete because the Entry of Default did not name the Myrtle Beach City Police Department. Id. Plaintiff asks the judgment to be altered to include this Defendant. Id. Plaintiff also contends the judgment is not clear on the dollar amount owed due to the default. Id. Plaintiff states he continues to suffer from unpaid expenses accrued during this process. Id.
Although Myrtle Beach Police Department was referenced in Plaintiff's initial Complaint, the undersigned notes the Myrtle Beach City Police Department was not named as a Defendant in Plaintiff's Amended Complaint. See ECF No. 12. As such, the Myrtle Beach City Police Department is not a Defendant in this action and is therefore not the subject of the September 12, 2019 Entry of Default. The undersigned further advises Plaintiff that the September 12, 2019 Entry of Default did not include an award of monetary damages.
B. Motion to Set Aside Default
Defendants move this court to set aside the Entry of Default pursuant to Federal Rules of Civil Procedure 55(c) and 60(b). Plaintiff filed his initial complaint on August 23, 2018. ECF No. 1. On September 4, 2018, the court issued an order notifying Plaintiff that his complaint was subject to partial dismissal because Plaintiff failed to state a claim against Defendant Snyder. ECF No. 9. The order further advised Plaintiff he had 21 days to file an amended complaint or otherwise cure the identified deficiencies in his pleadings. Id. Plaintiff filed an amended complaint on September 12, 2018. ECF No. 12. On October 29, 2018, the court granted Plaintiff's Motion for Leave to proceed In Forma Pauperis and issued an order authorizing service of process and directing the United States Marshals Service to serve the Summons and Amended Complaint on Defendants. ECF Nos. 19, 20. On December 11, 2018, the United States Marshals Service filed a Process Receipt and Return for Defendants Smith and Snyder indicating Defendants were personally served on November 28, 2018. ECF Nos. 26, 27. Defendants did not file a response to the Amended Complaint and on September 12, 2019, the court issued an order granting Plaintiff's Requests for Entry of Default. ECF No. 39. On September 26, 2019, Defendants filed a motion seeking relief from default. ECF No. 52.
Although Defendants argue the court lacked jurisdiction to enter default against them because they were not personally served with the Summons and Amended Complaint, see ECF No. 52-1 at 4, the undersigned finds the court had jurisdiction to enter default based on the service documents filed with the court by the United States Marshals Service which indicates both Defendants were personally served on November 28, 2018. See ECF Nos. 26, 27.
Fed. R. Civ. P. 55(c) provides that the court may, for good cause shown, set aside an entry of default. Factors which should be considered by the court include: (a) whether the moving party has a meritorious defense, (b) whether the party acts with reasonable promptness, (c) the personal responsibility of the defaulting party, (d) the prejudice to the opposing party, (e) whether there is a history of dilatory action, and (f) the availability of less drastic sanctions. Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953 (4th Cir. 1987). Generally speaking, "a default should be set aside where the moving party acts with reasonable promptness and alleges a meritorious defense." Consol. Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249, 251 (4th Cir. 1967).
First, to establish a "meritorious defense," the moving party must present evidence which, if believed, would permit the court or jury to find for the defaulting party. In support of their claim of a meritorious defense, Defendants allege Plaintiff pled guilty on April 10, 2019, to assaulting a police officer while resisting arrest. ECF No. 52-1 at 5. Defendants claim the excessive force claim in Plaintiff's Amended Complaint is the same incident that was the subject of Plaintiff's April 2019 guilty plea. Id. Defendants argue that a conviction for assaulting a police officer is a viable defense to an excessive force claim. Id. The undersigned finds Defendants have established a meritorious defense.
In examining the promptness of the defaulting period, the relevant time to consider is the period between the entry of default and the party's appearance in the action. See Colleton Preparatory Academy, Inc. v. Beazer East, Inc., 223 F.R.D. 401, 406 (D.S.C. 2004). The undersigned finds Defendants acted promptly in filing their Motion to Set Aside Default on September 26, 2019, as the Entry of Default was entered on September 12, 2019.
As to the third factor, the personal responsibility of the defaulting party, Defendants deny personal responsibility for the default arguing the United States Marshal Service did not personally serve them with the Amended Complaint. ECF Nos. 52-2, 52-3. Defendants attest they received the Amended Complaint in their officer mailbox in February 2019. Id. They also claim they never received the Plaintiff's Motion for Entry of Default. Id. A review of the docket reveals that service was made on Defendants in November 2018, so at the earliest Defendants were aware of this pending action in November 2018, and at the latest February 2019. However, Defendants continued to not take any action in this matter until after default was entered in September 2019. Additionally, Plaintiff attempted to serve Defendants with the Motion for Default Judgment and Defendants refused to accept service. See ECF No. 55-1. Based on the totality of the circumstances, the undersigned finds Defendants are personally responsible for the default.
Regarding the fourth factor, there is no indication of any prejudice to Plaintiff in allowing the action to proceed.
Finally, the undersigned finds there is some evidence of dilatory tactics on the part of the Defendants, as they admit they were aware of Plaintiff's Amended Complaint no later than February 2019, and did not take any actions concerning the pending legal action until approximately seven months later. Further, Defendants refused to accept service of Plaintiff's Motion for Entry of Default. See ECF No. 55-1. The docket also reflects that the Clerk of Court mailed a copy of the Entry of Default by certified and regular mail and Defendants refused to accept the certified mail copy. ECF Nos. 49, 50.
Applying these factors to the case at bar, the undersigned recommends that Defendants' Motion to Set Aside Default be granted. However, the undersigned also concludes that lesser sanctions are warranted in this case as Defendants were provided notice on multiple occasions of the existence of this action and did not act. Courts have made clear that in such instances, other sanctions, including monetary penalties, are appropriate. Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 811 (4th Cir. 1988). See also, Lolatchy, 816 F.2d at 953 (suggesting that charging the defaulting party with "all costs and expenses attendant to the delay" would be appropriate). Accordingly, the undersigned recommends each Defendant be penalized monetarily in the amount of $125, for a total amount of $250 to be paid to Plaintiff. See Trustees of Sheet Metal Workers' Local Union No. 5 and Iron Workers Employers Association, Employee Pension Trust v. R. Stoddard, LLC, C/A No.: GJH-17-3286, 2019 WL 1128518, at *2 (D. Md. 2019) (vacating the entry of default but awarding $458.75 in costs as lesser sanctions explaining Defendants was sufficiently placed on notice that it was a defendant in this lawsuit and did not act prior to the entry of default). II. Conclusion
Accordingly, the undersigned recommends the court deny Plaintiff's Motion for a More Definite Ruling, ECF No. 51. The undersigned also recommends the court grant Plaintiff's Motion to Set Aside Default and impose lesser sanctions on Defendants in the amount of $125 per Defendant. ECF No. 52.
IT IS SO RECOMMENDED. April 6, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).