United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court upon consideration of
Defendants Shane Derryberry, Josh Caldwell, and Jeff
McDougal's Motion to Set Aside Default and Motion to
Quash Service of Process (Doc. # 34), filed on May 23, 2017.
Pro se Plaintiff Derrel Leonard Thomas filed a document
titled “Plaintiff Derrel Leonard Thomas, Pro-se,
Objects to Set Aside Default and to Quash Service of Process
and Memorandum of Law, ” which the Court construes as
Thomas's response in opposition, on June 1, 2017. (Doc. #
39). For the reasons stated, the Court grants Derryberry,
Caldwell, and McDougal's Motion.
Setting Aside Clerk's Default
district court can set aside a clerk's default “for
good cause shown.” Fed.R.Civ.P. 55(c).
“‘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.”
Compania Interamericana Export-Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951-52 (11th Cir.
Eleventh Circuit has noted that “defaults are seen with
disfavor because of the strong policy of determining cases on
their merits.” Fla. Physician's Ins. Co. v.
Ehlers, 8 F.3d 780, 783 (11th Cir. 1993). Moreover,
“a technical error or a slight mistake by a party's
attorney should not deprive the party of an opportunity to
present the merits of his claim.” Id.
determining whether to set aside a Clerk's entry of
default, courts generally consider the following factors: (1)
whether the default is culpable or willful; (2) whether
setting aside the default would prejudice the adversary; and
(3) whether the defaulting party presents a meritorious
defense. Compania Interamericana Export-Import,
S.A., 88 F.3d at 951. Additional factors include: (4)
whether the public interest is implicated; (5) whether the
defaulting party will experience significant financial loss;
and (6) whether the defaulting party acted promptly to
correct the default. See Global Aerospace, Inc. v.
Platinum Jet Mgmt., LLC, No. 09-cv-60756, 2010 WL
331905, at *4 (S.D. Fla. Jan. 28, 2010). “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. (citation omitted).
Court twice before explained to Thomas the requirements of
Rule 4. (Doc. ## 13, 18). The latter of those two orders,
entered on May 9, 2017, set a deadline for completing and
proving service of process as May 22, 2017. (Doc. # 18). On
May 11, 2017, Thomas filed several documents purporting to be
returns of service. (Doc. ## 21-25). In particular, Thomas
filed documents attempting to show service of process had
been completed as to Derryberry, Caldwell, and McDougal.
(Doc. ## 23-25). Each document shows the Defendant named
therein was “served” on April 18, 2017, by
Thomas's wife delivering a copy of the summons to a
Virginia Wright,  who is identified as a city clerk. (Doc.
service purportedly effected on April 18, 2017,
Derryberry's, Caldwell's, and McDougal's
responses to the Amended Complaint were due by May 9, 2017.
Fed.R.Civ.P. 12(a). When no responses were filed by
Derryberry, Caldwell, and McDougal and Thomas had not applied
for entry of Clerk's Default, the Court entered an order
to show cause why the action against Derryberry, Caldwell,
and McDougal should not be dismissed for failure to
prosecute. (Doc. # 28). After the Court entered its show
cause order on May 22, 2017, the Clerk's Office docketed
a mailed-in application for entry of Clerk's Default
against Derryberry, Caldwell, and McDougal, which had been
received on May 19, 2017. (Doc. # 29). The Clerk entered
default against Derryberry, Caldwell, and McDougal on May 22,
2017. (Doc. ## 31-33).
very next day, on May 23, 2017, Derryberry, Caldwell, and
McDougal moved to set aside the Clerk's Defaults. (Doc. #
34). In their Motion, defense counsel states he
“communicated with Captain Richard Hankins of the CITY
OF BROOKSVILLE Police Department and confirmed that none of
the individual officers [, i.e., Derryberry, Caldwell, and
McDougal, ] had been served with Plaintiff's Amended
Complaint.” (Id. at ¶ 3). Defense counsel
also states he “was out of the office” and thus
was “not made aware of the May 11, 2017 filing of the
alleged summonses.” (Id. at ¶ 9).
Furthermore, defense counsel indicates he was in the process
of preparing motions to quash service when he learned of the
entry of Clerk's Default against Derryberry, Caldwell,
and McDougal. (Id. at ¶ 15).
than challenging the sufficiency of Defendants' showing
of good cause, Thomas argues Derryberry, Caldwell, and
McDougal waived the ability to challenge service of process.
(Doc. # 40). Thomas's argument as to waiver does not
persuade the Court. While a party does waive the defense of
insufficient service of process if that party fails to raise
the defense in a Rule 12 motion or in a responsive pleading,
Fed.R.Civ.P. 12(h)(1), that Rule does not apply here. To be
sure, the very first filing submitted by Derryberry,
Caldwell, and McDougal in this case was their pending Motion
to set aside, which also challenges the sufficiency of
service of process.
explained more fully below, service of process was not
properly completed as to Derryberry, Caldwell, and McDougal.
In addition, the record demonstrates Derryberry, Caldwell,
and McDougal promptly acted through counsel when they learned
of the Clerk's Defaults; indeed, not even a full day
passed before they sought to set aside the Defaults. Having
considered the previously mentioned six factors, the Court
determines setting aside the Clerk's Defaults is proper.
As such, the Clerk's Defaults against Derryberry (Doc. #
31), Caldwell (Doc. # 32), and McDougal (Doc. # 33) are set
Quashing Service of Process
April 18, 2017, Thomas's wife delivered the summonses for
Derryberry, Caldwell, and McDougal to a person identified as
Virginia Wright, a city clerk. (Doc. ## 23-25). Derryberry,
Caldwell, and McDougal now seek an order from this Court