United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING MOTION TO SET ASIDE ENTRY OF DEFAULT
AND DENYING RELATED MOTIONS
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the  Motion to Set Aside Entry of Default
and for Leave to File Answer to Amended Complaint filed by
Defendant Donald Allen Balder, Jr. Related are Plaintiff
Ward's  Motion for Default Judgment as to Amended
Complaint and  Motion for Sanctions, and Defendant
Balder's  Motion to Quash.
Motion to Set Aside Entry of Default, Balder contends that
the Clerk's entry of default occurred through no fault of
his own. Now that he has obtained new counsel, he wishes to
answer the amended complaint, present his meritorious
defenses, and “attempt to remedy” the discovery
abuses that led the plaintiff to move for default judgment
against him as a sanction.
matter has been fully briefed, and after due consideration,
the Court finds that Balder has shown good cause for his
default. Accordingly, the Entry of Default will be set aside
and this case will resume on the Court's docket.
Ward's motions are premised on Balder's failure to
answer the Amended Complaint. Because the Court finds good
cause for the failure and grants Balder the opportunity to
file an answer, the imposition of a sanction is
inappropriate. Accordingly, Ward's motions for sanctions
and default judgement will be denied. Finally, Balder's
Motion to Quash concerns subpoenas issued for the previously
scheduled hearing of Ward's motions for sanctions and
default judgment. It is now moot.
and Procedural History
Balder and Plaintiff Ward are a divorced couple embroiled in
a child custody dispute in Harrison County Chancery Court.
Ward alleges that Balder came to her home to retrieve certain
personal property. Ward kicked a deflated basketball out of
her garage while Balder was walking down the driveway with a
picture frame. The basketball hit the picture frame. Balder
did not complain at the time, but he later gave an affidavit
to the Biloxi Police Department alleging that Ward had caused
him bodily injury “by kicking a soccer ball at him
hitting him in the right leg.” (Am. Compl. 4, ECF No.
26.) Two days later, Balder signed a Petition for Domestic
Abuse Protective Order “which falsely made multiple
allegations” against Ward to obtain custody of the
children. (Id.) Ward was arrested by the Biloxi
Police Department and released on bond several hours later.
She was prohibited from having any contact with the children
for ten days. Ward alleges that Balder knew his allegations
against her were false at the time he made them. He did not
appear at the trial on the domestic violence charge he had
instituted against her, resulting in a dismissal in her
lawsuit, Ward seeks compensatory and punitive damages from
Balder on state law claims of malicious prosecution, abuse of
process, and intentional infliction of emotional distress.
Ward filed her complaint in April 2018. Magistrate Judge
Walker conducted a case management conference on July 17. By
the end of August, it was necessary for Judge Walker to
conduct a telephone conference and direct Balder to provide
complete responses to the outstanding discovery. (See Minute
Entry Order Aug. 29, 2018.) When Balder did not do so, Ward
filed a motion to compel and for sanctions. (ECF No. 13.)
Judge Walker granted the motion as unopposed. Balder was
ordered to provide discovery and pay $500 in Ward's
attorneys' fees as a sanction. (ECF No. 22.) When Balder
still failed to provide the required discovery, Ward filed
another motion for sanctions that remains pending.
Additionally, Ward requested and received permission to file
an  Amended Complaint, which Balder failed to answer.
Ward's motion for a default judgment requests default
judgment as a sanction for Balder's failure to answer or
counsel has moved to withdraw from representation, and new
counsel made an appearance. New counsel filed a response in
opposition to Ward's Motion for Sanctions and the Motion
to Set Aside Entry of Default now before the Court.
of default are generally disfavored. Lacy v. Sitel
Corp., 227 F.3d 290, 292 (5th Cir. 2000). Federal Rule
of Civil Procedure 55(c) allows the Court to set aside an
entry of default for good cause. Whether good cause exists is
determined by consideration of three factors: whether (1) the
default was willful; (2) setting it aside would prejudice the
plaintiff; and (3) the defendant presents a meritorious
defense. Id. “These factors are not exclusive;
instead, they are to be regarded simply as a means to
identify good cause.” Effjohn Int'l Cruise
Holdings, Inc. v. A & L Sales, Inc., 346 F.3d 552,
563 (5th Cir. 2003). Other factors, such as whether the
defendant acted expeditiously to correct the default, can
also be considered. Id.
argues that his counsel alone is at fault for the failure to
answer Ward's amended complaint - he was “thrown to
the wolves.” (Def. Mem. 6, ECF No. 44.) Thus, he
asserts, his default was not willful. As to prejudice, Balder
notes that this case is in its early stages and Ward already
has most of the information she needs to prosecute her
malicious prosecution claims, making any delay caused by
Balder's failure to defend non-prejudicial. Balder also
contends he has a meritorious defense: he had an honest and
reasonable belief that Ward was guilty of domestic abuse.
Balder did not act particularly expeditiously in moving to
correct the default, but he argues that the three month delay
is attributable only to his previous counsel. Once he
obtained new counsel this motion to set aside was promptly
Court finds that setting aside the default will not prejudice
Ward. To prove prejudice, the plaintiff must show that
setting aside the default entry “will result in the
loss of evidence, increased difficulties in discovery, or
greater opportunities for fraud and collusion.”
Lacy, 227 F.3d at 293. Ward asserts the delay and
Balder's past failures to cooperate in discovery are
prejudicial. Mere delay is not prejudice, id., and
her difficulties in obtaining discovery should decrease,
rather than increase with Balder's new representation.
Court also finds that Balder has articulated a meritorious
defense in this case which would likely require any default
judgment imposed to be set aside. See Scott v.
Carpanzano, 556 Fed.Appx. 288, 296 (5th Cir. 2014)
(explaining that a meritorious defense exists “where
there is some possibility that the outcome of the suit after
a full trial will be contrary to the result achieved by the
default.”) Balder asserts that Ward will be unable to
establish the “want of probable cause” element of
a malicious prosecution claim in Mississippi. “Probable
cause” in the malicious prosecution context refers to
“a reasonable and honest belief in the guilt of the
accused.” Hudson v. Palmer, 977 So.2d 369, 381
(Miss. Ct. App. 2007). It is possible that Balder will be
able to show that he had probable cause to institute the
criminal proceedings against Ward.
the Fifth Circuit has defined willfulness as “an
intentional failure to respond to litigation.” In
re OCA, 551 F.3d 359, 370 n.32 (5th Cir. 2008). Balder
contends it was his previous counsel alone who intentionally
failed to file an answer, while previous counsel informed the
Court that Balder had not cooperated with her, making it
“beyond impossible” to represent him. (Resp. to
Obj. to Mot. to Withdraw 2, ECF No. 35.) The Court resolves
this “he said, she said” by finding against
willfulness. “‘[W]here there are no intervening
equities any doubt should, as a general proposition, be
resolved in favor of the movant to the end of securing a
trial upon the merits.'” Lacy, 227 F.3d at
292 (quoting Gen. ...