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Gordon v. Lee

United States District Court, S.D. Mississippi, Northern Division

February 6, 2018

KEITH A. GORDON PLAINTIFF
v.
CENEDRA D. LEE, COX MEDICAL FACILITY, DEREK S. DYESS, ERIC L. RUSHING, JACKSON HMA, LLC, MESERET TEFERRA, FAMILY HEALTH CARE CLINIC, XYZ INSURANCE COMPANIES DEFENDANTS

          ORDER

          DANIEL P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE.

         This medical-malpractice case is before the Court on the following motions: (1) Plaintiff Keith Gordon's Motion for Default Judgment [29]; (2) Defendants Family Health Care Clinic, Inc., (“FHCC”) and Meseret Teferra's motions to set aside entry of default [37, 39]; (3) Defendants Derek S. Dyess and Eric L. Rushing's Motion to Dismiss [48]; (4) Defendant Cox Medical Facility's (“CMF”) Motion to Dismiss [52]; and (5) Plaintiff Gordon's two motions for reconsideration [50, 63]. For the reasons stated below, the Court grants Defendants' motions to dismiss [48, 52] and to set aside entry of default [37, 39]. The Court denies Plaintiff's Motion for Default Judgment [29] and his two motions for reconsideration [50, 63].

         Gordon's case relates to the medical treatment he received in 2015 and 2016 for a hernia. When he first presented to Defendants complaining about the pain, they ordered ultrasounds that failed to detect the problem. See Compl. [1] at 5. Some months later, Gordon received a CT scan; the hernia was detected; and Gordon underwent emergency surgery. Id. Based on these asserted facts, Gordon says Defendants committed malpractice and violated his civil rights. He therefore asserts claims under 42 U.S.C. § 1983 and state tort law. With that background, the Court turns to the pending motions.

         I. FHCC and Teferra's Motions to Set Aside Entry of Default [37, 39]

         When FHCC and Teferra failed to file timely answers, Gordon moved quickly seeking and receiving Clerk's entries of default. See Pl.'s Mot. [27]; Clerk's Entry [32]. Defendants acted with equal efficiency, moving to set the defaults aside four days later. See Defs.'s Mot. [37].

         “The court may set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c). “To determine whether or not good cause is present, we consider three factors: (1) whether the default was willful; (2) whether setting aside the default judgment would prejudice plaintiffs; and (3) whether [defendant] presented a meritorious defense.” In Re Chinese Manufactured Drywall Prod. Liab. Litig., 742 F.3d 576, 594 (5th Cir. 2014). The Court “may also consider other factors, including whether [the defendant] acted expeditiously to correct the default.” Id. Finally, the Fifth Circuit has “adopted a policy in favor of resolving cases on their merits and against the use of default judgments.” Id.

         In this case, the failure to answer was inadvertent, not willful. When Gordon served FHCC and Teferra, counsel for those Defendants forwarded the summons to the United States Department of Health and Human Services (“HHS”) believing that HHS was the proper party to the suit. See Defs.'s Mem. [40] at 2-4. HHS did not, however, respond to the lawsuit, and default resulted. Id. Defendants did not willfully refuse to answer.

         As for the prejudice prong, it requires more than merely forcing the plaintiff to prove his case. See Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000). Moreover, “mere delay does not alone constitute prejudice. Rather, the plaintiff must show that the delay will result in the loss of evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion.” Id. No such showing exists, especially given the speed with which both parties acted. Finally, Defendants have indicated potentially meritorious defenses.

         For these reasons, the Court grants FHCC and Teferra's motions to set aside the entries of default. Defendants shall file answers within 10 days.

         II. Gordon's Motion for Default Judgment [29]

         Because the Court has set aside the entries of default as to FHCC and Teferra, Gordon is not entitled to default judgment as to them. But his motion for default judgment also seeks judgment as to CMF. See Pl.'s Mot. [29]. That request requires separate consideration.

         CMF's answer was apparently due November 1, 2017, but it missed the deadline. So on November 3, CMF sought an extension of time. See Def.'s Mot. [26]. Gordon thereafter sought a Clerk's entry of default on November 8, but the Clerk of Court denied the request based on CMF's pending motion for an extension of time to answer. See Clerk's Entry [32]. CMF eventually answered within a second extension. See Nov. 28, 2017 Text Order; Def.'s Ans. [46].

         In sum, Gordon has never obtained a Clerk's entry of default as to CMF, and CMF answered within the delay the magistrate judge ultimately granted. Under these circumstances, Gordon is not entitled to default judgment. See New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996) (“After defendant's default has been entered, ...


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