ASHMORE v. BARBER

Case No. 8:15-cv-04487-JMC-JDA.

Beattie B. Ashmore, in his Capacity as Court-Appointed Receiver for Ronnie Gene Wilson and Atlantic Bullion & Coin Inc., Plaintiff, v. Dewey Barber, Defendant.

United States District Court, D. South Carolina, Anderson/Greenwood Division.

Editors Note
Applicable Law: 28 U.S.C. § 1367
Cause: 28 U.S.C. § 1367 Federal Receiver Case to Disgorge Profits
Nature of Suit: 370 Other Fraud
Source: PACER


Attorney(s) appearing for the Case

Beattie B Ashmore, Plaintiff, represented by Lauren S. Price , Tollison Law Firm.

Beattie B Ashmore, Plaintiff, represented by Lewis Walter Tollison, III , Tollison Law Firm.

Dewey Barber, Defendant, Pro Se.

Beattie B Ashmore, Defendant, represented by Lauren S. Price , Tollison Law Firm & Lewis Walter Tollison, III , Tollison Law Firm.


REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JACQUELYN D. AUSTIN, Magistrate Judge.

This matter is before the Court on a motion for default judgment filed by Plaintiff [Doc. 34] and a motion for extension of time to answer filed by Defendant1 [Doc. 37]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases involving litigation by individuals proceeding pro se2 and to submit findings and recommendations to the District Court.

PROCEDURAL HISTORY AND BACKGROUND

Plaintiff filed this action on November 5, 2015. [Doc. 1.] On January 4, 2016, Defendant filed a motion to dismiss [Doc. 7], which was denied without prejudice by the Honorable J. Michelle Childs on September 1, 2016 [Doc. 12]. On October 12, 2016, the undersigned entered an Order directing Defendant to file an Answer and to submit completed and signed pro se party's answers to Rule 26.01 interrogatories within 21 days, or by November 5, 2016. [Doc. 21.] On November 7, 2016, Defendant moved to extend his Answer deadline [Doc. 26], and the undersigned extended the Answer deadline to December 9, 2016, noting that any counterclaims should be included with the Answer [Doc. 28]. Defendant failed to file an Answer, and on December 19, 2016, Plaintiff requested a Clerk's entry of default, which the Clerk entered on December 20, 2016. [Docs. 31, 32.]

On December 20, 2016, Plaintiff filed the instant motion for default judgment. [Doc. 34.] As stated, on January 9, 2017, the Clerk filed what Defendant classified as a "motion to deny request for entry of default judgment" as both a response in opposition to the motion for default judgment [Doc. 36] and a motion for extension fo time to answer [Doc. 37]. Plaintiff subsequently filed a reply with respect to the motion for default judgment [Doc. 39] and a response in opposition to Defendant's motion for extension of time [Doc. 40]. Accordingly, both motions are ripe for review.

APPLICABLE LAW

Rule 55(a) of the Federal Rules of Civil Procedure states that the clerk must enter a party's default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." After the clerk enters default, the opposing party may seek a default judgment under Rule 55(b). However, Rule 55(c) provides that "[t]he court may set aside an entry of default for good cause." The Fourth Circuit Court of Appeals has held that "[a]lthough the clear policy of the Rules is to encourage dispositions of claims on their merits, trial judges are vested with discretion, which must be liberally exercised, in entering [default] judgments and in providing relief therefrom." United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982) (internal citations omitted). To determine whether an entry of default should be set aside, courts should consider the following factors: "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).

DISCUSSION

Although Defendant has not expressly moved to set aside the Clerk's entry of default, the Court construes Defendant's motion for extension of time to answer as additionally seeking to set aside default under Rule 55(c). See United States v. Anderson, 364 F.Supp.2d 569, 570 (D.S.C. 2004) ("The Defendants are pro se litigants, and thus their pleadings are accorded liberal construction."). Defendant argues that he "has no experience in matters of rules of law and is representing himself in this case," "was not aware of the necessity of defend[ing] this case with what he considered was an additional answer to said complaint," and "believed that he had earlier answered the complaint in detail when he filed a response to the complaint on 25 Sept. 2015." [Docs. 36 at 1; 37 at 1.] Defendant attached a motion to dismiss from a previous case,3 labeling the attachment as "Sept. 25, 2015 Answer" [Doc. 36-1], and asks the Court to set another date for an opportunity to answer and defend this case [Docs. 36 at 2; 37 at 2]. Defendant also suggests that he did not receive the notice of the entry of default until January 4, 2017, a day after the last day to respond to the motion for default judgment. [Docs. 36 at 2; 37 at 2.] Defendant's motion for extension of time to answer and response in opposition to the motion for default judgment were filed on January 9, 2017. [Docs. 36, 37.]

Here, at least four of the Payne factors weigh in favor of setting aside the entry of default. Taking Defendant's allegations as true, although he failed to timely file an Answer, he promptly responded to Plaintiff's motion for default judgment because he received notice of the entry of default and the motion for default judgment on January 4, 2017, and filed a response in opposition to the motion on January 9, 2017, as well as a motion seeking additional time to answer.4 Because the instant action is at an early stage in litigation, any prejudice suffered by Plaintiff in setting aside the entry of default is outweighed by the Court's preference to decide matters on their merits. There is also no evidence of a history of dilatory action by Defendant, especially given that he timely filed motions to dismiss in this case as well as the 3478 Case. Finally, there are sanctions available that are less drastic than entering a default judgment against Defendant. For example, the Court could allow Defendant a limited time to file his Answer.

The remaining two factors—whether the moving party has a meritorious defense and the personal responsibility of the defaulting party—do not weigh clearly in Defendant's favor. "A meritorious defense requires `a proffer of evidence which, if believed, would permit either the court or the jury to find for the defaulting party.'" Campodonico v. Stonebreaker, No. 4:15-cv-3373-RMG, 2016 WL 1064490, at *2 (D.S.C. Mar. 15, 2016) (quoting Moradi, 673 F.2d at 727). Defendant, however, has presented no defenses at this stage. Additionally, Defendant bears full personal responsibility for the default in this matter for failing to timely file an Answer.5

Because four factors weigh in favor of relieving Defendant of the Clerk's entry of default and only two factors weigh against relief, the undersigned finds good cause to set aside the entry of default and allow the instant action to proceed on its merits. Accordingly, Defendant's motion for extension of time to answer should be granted, and the Clerk's entry of default should be set aside. Further, Plaintiff's motion for default judgment should be denied.

RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that Plaintiff's motion for default judgment [Doc. 34] be DENIED, Defendant's motion for extension of time to answer [Doc. 37] be GRANTED, the Clerk's entry of default be set aside, and Defendant be Ordered to file an Answer to Plaintiff's Complaint in a shortened response period.

IT IS SO RECOMMENDED.

FootNotes


1. Defendant classified his filing as a "motion to deny request for entry of default judgment," and the Clerk appropriately filed the document as both a response in opposition to Plaintiff's motion for default judgment [Doc. 36] and a motion for extension of time to answer [Doc. 37] because, in the filing, Defendant asks the Court "to set another date for an opportunity to answer this case and defend himself in this matter."
2. Defendant is proceeding pro se in this case.
3. Plaintiff originally filed a case against Defendant in this Court on August 31, 2015. Ashmore v. Barber, No. 8:15-cv-3478-JMC (D.S.C. 2015) ("3478 Case"). In the 3478 Case, Defendant, represented by counsel at the time, filed a motion to dismiss on September 25, 2015. [3478 Case Doc. 6.] However, before the Court ruled on the motion to dismiss, Plaintiff filed a notice of voluntary dismissal. [3478 Case Doc. 7.] As stated, on November 5, 2015, Plaintiff filed the instant case. [Doc. 1.] Defendant filed a motion to dismiss in this case [Doc. 7], which the Court denied on September 1, 2016 [Doc. 12]. Defendant's motion to dismiss in this case was actually the motion to dismiss from the 3478 Case re-filed in this case along with Orders from related actions. [Doc. 7.]
4. Defendant's motion for extension of time to answer and response in opposition to the motion for default judgment were mailed on January 5, 2017. [Docs. 36-2; 37-1.]
5. The Court is not entirely convinced by Defendant's assertion that he was unaware he needed to file what he considers an additional Answer because, as stated, on October 12, 2016, the undersigned entered an Order directing Defendant to file an Answer and to submit completed and signed pro se party's answers to Rule 26.01 interrogatories. [Doc. 21.] Defendant filed his pro se party's answers to Rule 26.01 interrogatories [Doc. 25] and moved to extend his Answer deadline [Doc. 26]. The Court's text order granting Defendant's motion for extension of time specifically stated that his Answer was due by December 9, 2016. [Doc. 28.] In any event, as discussed, four factors weigh in favor of relieving Defendant of the Clerk's entry of default.

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