United States District Court, N.D. Mississippi, Aberdeen Division
DAVID J. WHITEFOOT and ELENA R. WHITEFOOT, Plaintiffs,
SHERIFF OF CLAY COUNTY, et al., Defendants.
SHARION AYCOCK, District Judge.
Numerous motions are pending in the above-cited case. After reviewing the motions, responses, rules and authorities, the Court finds as follows:
Motion for Clerk to Enter Default 
Plaintiffs seek to have default entered against all served Defendants. Defendant Clay County was served on September 11, 2014, and filed a Motion for More Definite Statement on October 1, 2014. See FED. R. CIV. P. 12(a)(4)(B) (excusing the filing of a responsive pleading until after the court rules on a motion for more definite statement). There is no indication on the docket, however, that the other defendants, all sued in their individual capacities, were served with a summons and complaint. FED. R. CIV. P. 4(l) (requiring proof of service to be made to the court). Indeed, summonses were issued on July 9, 2014, and reissued on August 20, 2014, and October 31, 2014. No docket text indicates that these summonses were returned executed. Further, the Court finds that the filing of Plaintiffs' Second Amended Complaint on February 24, 2015, would require the same service that an original pleading would. FED. R. CIV. P. 4(c). The Court has no proof that that service was ever completed. Accordingly, Plaintiff's Motion for Clerk to Enter Default is DENIED.
Motion to Set Aside Entry of Default  
After Plaintiffs' request for the Clerk to Enter Default as to certain defendants, the Plaintiffs filed an Amended Complaint on February 24, 2015. Clay County filed an Answer on March 16, but Jeff Rawlings, who had previously been served and was therefore active in this case, did not file an answer. The Clerk made an Entry of Default against both Defendants on March 19, 2015. Those Defendants seek to have that entry of default set aside. Rawlings notes that he filed a Motion to Dismiss as to the first Amended Complaint that had yet to be decided by the Court, and further, that he was actively engaged in defending the suit through filings and responses. Clay County asserts that it filed an Answer to the Second Amended Complaint, and that Answer should be deemed timely filed.
"Default judgments or entries of default are useful tools for the efficient administration of justice." Griffin v. Humphrey, 2008 U.S. Dist. LEXIS 104964, 2008 WL 3287132, at *1 (N.D. Miss. Aug. 7, 2008) (internal citation omitted). However, default judgment is "a drastic remedy not favored by the Federal Rules and resorted to by courts only in extreme situations." Sun Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir. 1989). Entry of default is, itself, a prerequisite to entry of a default judgment. Jefferson v. Louisiana Dep't of Public Safety and Corr., 401 F.Appx. 927, 929 (5th Cir. 2010).
Regarding the standard of review for setting aside a clerk's entry of default, it is well recognized whether to do so is "within the sound discretion of the district court." United States v. Gentry, 2014 U.S. Dist. LEXIS 122087, 2014 WL 4352094, at *2 (N.D. Miss. Sept. 2, 2014) (citing In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992)). Under Federal Rule of Civil Procedure 55(c), the standard to set aside an entry of default is "good cause." Griffin, 2008 U.S. Dist. LEXIS 104964, 2008 WL 3287132, at *1 (citing Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000)). "In determining good cause to set aside an entry of default, the court balances whether: 1) the default was willful, 2) the set-aside would be prejudicial to the non-moving party, and 3) the alleged defense is meritorious." Griffin, 2008 U.S. Dist. LEXIS 104964, 2008 WL 3287132, at *1 (internal citation omitted); see also In re OCA, Inc., 551 F.3d 359, 369 (5th Cir. 2008).
Here, the Court finds that there is good cause to set aside the entry of default against Jeff Rawlings and Clay County. As both Defendants have been actively engaged in defense of this lawsuit, there is no indication that the default was willful. Plaintiff has failed to show any prejudice a set aside would cause, and further, the Court finds that the defenses asserted against Plaintiffs may prove to be meritorious. Therefore, the Court finds that the motions to set aside the Clerk's Entries of Default  and  are GRANTED. Clay County's Answer to the Second Amended Complaint shall be deemed timely filed. Rawlings' Answer is due within 20 days of the date of this Order.
Motion to Dismiss 
Defendant Rawlings has moved to dismiss Plaintiffs' First Amended Complaint on the basis that the statute of limitations has run, or that the action is barred by res judicata. Plaintiffs responded asserting that the filing of another federal civil action, Cause No. 1:14cv050, tolled the statute of limitations. Plaintiffs failed to respond to the argument regarding res judicata and the possibility that this cause of action is simply an appeal of a replevin judgment from the Mississippi Supreme Court.
Plaintiffs have since filed a Second Amended Complaint, and the magistrate judge has ordered Plaintiffs to file a more definite statement pursuant to Federal Rule of Civil Procedure 8. Because Plaintiffs have since appealed that ruling, and the issues raised by Rawlings may be dispositive of this case once a more definite statement is made, the Court DENIES WITHOUT PREJUDICE the Motion to Dismiss. The Motion for Extension of Time  is MOOT.
Motion to Appeal the Magistrate Judge Order 
Plaintiffs sought by ex parte motion to extend the time to serve the Defendants not previously served in this action. Magistrate Judge Sanders denied that motion on the basis that it was not a proper ex parte request. Plaintiffs contend on appeal that the motion was improperly ...