United States District Court, S.D. Mississippi, Northern Division
KEITH A. GORDON PLAINTIFF
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
P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE.
medical-malpractice case is before the Court on the following
motions: (1) Plaintiff Keith Gordon's Motion for Default
Judgment ; (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 ;
(4) Defendant Cox Medical Facility's (“CMF”)
Motion to Dismiss ; 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 
and his two motions for reconsideration [50, 63].
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.  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.
and Teferra's Motions to Set Aside Entry of Default [37,
FHCC and Teferra failed to file timely answers, Gordon moved
quickly seeking and receiving Clerk's entries of default.
See Pl.'s Mot. ; Clerk's Entry .
Defendants acted with equal efficiency, moving to set the
defaults aside four days later. See Defs.'s Mot.
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.”
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.  at 2-4. HHS did not,
however, respond to the lawsuit, and default resulted.
Id. Defendants did not willfully refuse to answer.
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.
these reasons, the Court grants FHCC and Teferra's
motions to set aside the entries of default. Defendants shall
file answers within 10 days.
Gordon's Motion for Default Judgment 
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. . That request
requires separate consideration.
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. . 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 . CMF eventually answered within a second
extension. See Nov. 28, 2017 Text Order; Def.'s
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,