UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
JAMES U. PAYNE,
Plaintiff, Case No. 2:22-cv-12574 District Judge Mark A. Goldsmith v. Magistrate Judge Kimberly G. Altman
BROADWORTH, SILVEUS, STOETZEL, PANONNE, MILLER, TOWNLEY, CONLEY, T. ANDERSON, and SERBANTEZ,
Defendants. _________________________________/
ORDER1 GRANTING DEFENDANTS’ MOTION TO SET ASIDE CLERK’S ENTRY OF DEFAULT (ECF No. 35) AND DENYING PLAINTIFF’S MOTION TO STRIKE (ECF No. 32) 2
I. Introduction This is a civil rights case under 42 U.S.C. § 1983. Plaintiff James U. Payne
1 “A motion to set aside a Clerk’s entry of default (as opposed to grant or set aside a default judgment) is considered a non-dispositive motion that a Magistrate Judge can decide directly under 28 U.S.C. § 636(b)(1)(A), rather than addressing by Report and Recommendation under 28 U.S.C. § 636(b)(1)(B).” Allstate Fire & Cas. Ins. Co. v. Novosad, No. 16-12481, 2016 WL 5430191, at *1 n.2 (E.D. Mich. Sept. 29, 2016) (collecting cases) (emphasis in original).
2 Upon review of the motions, the undersigned deems these matters appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2). (Payne)3 is suing nine Jackson County Jail deputies: (1) Broadworth; (2) Silveus; (3) Stoetzel; (4) Panonne; (5) Miller; (6) Townley; (7) Conley; (8) T. Anderson
(Anderson); and (9) Serbantez. Payne alleges that these deputies violated his constitutional rights while he was incarcerated in the Jackson County Jail. See ECF No. 1.
Under 28 U.S.C. § 636(b)(1), all pretrial matters have been referred to the undersigned. (ECF No. 12). There are currently four motions pending before the undersigned: (1) a motion to dismiss jointly filed by all nine defendants, (ECF No. 24); (2) Payne’s motion to strike the motion to dismiss, (ECF No. 32); (3)
defendants’ motion to set aside the Clerk’s entry of default as to Anderson, Broadworth, Silveus, and Townley, (ECF No. 35); and (4) Payne’s motion for default judgment as to as to Anderson, Broadworth, Silveus, and Townley, (ECF
No. 39). This order will resolve the second and third motions. The fourth motion is addressed in a Report and Recommendation (R&R) filed on the same date as this order. The first motion will be the subject of a future R&R. For the reasons set forth below, defendants’ motion will be GRANTED and
Payne’s motion will be DENIED.
3 Payne filed his complaint as a pro se litigant, but an attorney has since entered an appearance on his behalf. See ECF No. 44. II. Legal Standards Under Federal Rule of Civil Procedure 12, a defendant generally must file an
answer or otherwise respond “within 21 days after being served with the summons and complaint[.]” Fed. R. Civ. P. 12(a)(1)(A)(i). However, if service is not done properly, a defendant is not required to respond to the complaint. See Foreman v.
United States, No. 2:22-cv-10401, 2022 WL 17826503, at *3 (E.D. Mich. Nov. 16, 2022) (“Because [the defendant] was never properly served with the complaint, his answer is not due and his motion to dismiss is timely.”); see also Wallace v. Interpublic Grp. of Cos., Inc., No. 09-11510, 2009 WL 1856543, at *2 (E.D. Mich.
June 29, 2009) (determining that removal was not untimely where plaintiff never achieved service); Townsend v. Schofield, No. 14-2861-JDT-DKV, 2015 WL 5254604, at *8 (W.D. Tenn. Sept. 9, 2015) (“Because the Defendants were not
served with process prior to the filing of this motion, they were under no obligation to answer the complaint[.]”); Weaver v. Moamis, No. 4:14CV311, 2015 WL 874759, at *4 (N.D. Ohio Feb. 27, 2015) (“According to the docket, [the defendant] was never served, and, as a consequence, his answer could not be
untimely filed.”). A. Motion to Set Aside Default As to setting aside the Clerk’s entry of default, “Rule 55(c) leaves to the
discretion of the trial judge the decision whether to set aside an entry of default. However, a strong preference for trials on the merits in federal courts had led to the adoption of a somewhat modified standard of review where defaults are involved.”
Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 193 (6th Cir. 1986). In practice, courts employ a “lenient standard” in evaluating a request to set aside a default that has not yet reached a default judgment. Id. Federal
courts favor trials on the merits; therefore, “any doubt should be resolved in favor of the petition to set aside the judgment.” United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 846 (6th Cir. 1983) (cleaned up). Under Rule 55(c), a court may set aside an entry of default “[f]or good cause
shown.” When evaluating either a motion to set aside a proper entry of default or a default judgment, a court considers three factors: (1) whether the default was the result of the defendant’s willful or culpable conduct; (2) whether the plaintiff
would be prejudiced if the default is set aside; and (3) whether the defendant asserts any meritorious defenses to the claims. United Coin Meter Co., Inc., 705 F.2d at 844-845. “However, these three factors only require consideration when service of
process is properly effected because without proper service the court has no jurisdiction to take any action over the defendant, including entering a default.” Adams v. Wilmington Finance/AIG, No. 12–cv–10308, 2012 WL 2905918, at *1
(E.D. Mich. Apr. 10, 2012), report and recommendation adopted, 2012 WL 2905279 (E.D. Mich. July 16, 2012). “In other words, until a party has been properly served, the Court cannot take action against that party, including entering
a default or judgment by default against that party.” Harper v. ACS-INC., No. 10– 12112, 2010 WL 4366501, at *3 (E.D. Mich. Oct. 28, 2010). Accordingly, “if service of process was not proper, the court must set aside an entry of default.”
O.J. Dist., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003), abrogated on other grounds by Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022). B. Motion to Strike As to Payne’s request to strike, Rule 12(f) provides that a court “may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter[,]” however, that rule “by its clear text does not provide a vehicle to strike an untimely filed answer[,]” Amari v. Spillan, No. 2:08-CV-829,
2009 WL 5216042, at *2 (S.D. Ohio Dec. 29, 2009) (citing Heber v. United States, 145 F.R.D. 576 (D.C. Utah 1992)). III. Discussion A. Motion to Set Aside Default
In their motion to set aside default, defendants argue that the Clerk’s entry of default was improper because defendants were never properly served. The undersigned agrees.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
JAMES U. PAYNE,
Plaintiff, Case No. 2:22-cv-12574 District Judge Mark A. Goldsmith v. Magistrate Judge Kimberly G. Altman
BROADWORTH, SILVEUS, STOETZEL, PANONNE, MILLER, TOWNLEY, CONLEY, T. ANDERSON, and SERBANTEZ,
Defendants. _________________________________/
ORDER1 GRANTING DEFENDANTS’ MOTION TO SET ASIDE CLERK’S ENTRY OF DEFAULT (ECF No. 35) AND DENYING PLAINTIFF’S MOTION TO STRIKE (ECF No. 32) 2
I. Introduction This is a civil rights case under 42 U.S.C. § 1983. Plaintiff James U. Payne
1 “A motion to set aside a Clerk’s entry of default (as opposed to grant or set aside a default judgment) is considered a non-dispositive motion that a Magistrate Judge can decide directly under 28 U.S.C. § 636(b)(1)(A), rather than addressing by Report and Recommendation under 28 U.S.C. § 636(b)(1)(B).” Allstate Fire & Cas. Ins. Co. v. Novosad, No. 16-12481, 2016 WL 5430191, at *1 n.2 (E.D. Mich. Sept. 29, 2016) (collecting cases) (emphasis in original).
2 Upon review of the motions, the undersigned deems these matters appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2). (Payne)3 is suing nine Jackson County Jail deputies: (1) Broadworth; (2) Silveus; (3) Stoetzel; (4) Panonne; (5) Miller; (6) Townley; (7) Conley; (8) T. Anderson
(Anderson); and (9) Serbantez. Payne alleges that these deputies violated his constitutional rights while he was incarcerated in the Jackson County Jail. See ECF No. 1.
Under 28 U.S.C. § 636(b)(1), all pretrial matters have been referred to the undersigned. (ECF No. 12). There are currently four motions pending before the undersigned: (1) a motion to dismiss jointly filed by all nine defendants, (ECF No. 24); (2) Payne’s motion to strike the motion to dismiss, (ECF No. 32); (3)
defendants’ motion to set aside the Clerk’s entry of default as to Anderson, Broadworth, Silveus, and Townley, (ECF No. 35); and (4) Payne’s motion for default judgment as to as to Anderson, Broadworth, Silveus, and Townley, (ECF
No. 39). This order will resolve the second and third motions. The fourth motion is addressed in a Report and Recommendation (R&R) filed on the same date as this order. The first motion will be the subject of a future R&R. For the reasons set forth below, defendants’ motion will be GRANTED and
Payne’s motion will be DENIED.
3 Payne filed his complaint as a pro se litigant, but an attorney has since entered an appearance on his behalf. See ECF No. 44. II. Legal Standards Under Federal Rule of Civil Procedure 12, a defendant generally must file an
answer or otherwise respond “within 21 days after being served with the summons and complaint[.]” Fed. R. Civ. P. 12(a)(1)(A)(i). However, if service is not done properly, a defendant is not required to respond to the complaint. See Foreman v.
United States, No. 2:22-cv-10401, 2022 WL 17826503, at *3 (E.D. Mich. Nov. 16, 2022) (“Because [the defendant] was never properly served with the complaint, his answer is not due and his motion to dismiss is timely.”); see also Wallace v. Interpublic Grp. of Cos., Inc., No. 09-11510, 2009 WL 1856543, at *2 (E.D. Mich.
June 29, 2009) (determining that removal was not untimely where plaintiff never achieved service); Townsend v. Schofield, No. 14-2861-JDT-DKV, 2015 WL 5254604, at *8 (W.D. Tenn. Sept. 9, 2015) (“Because the Defendants were not
served with process prior to the filing of this motion, they were under no obligation to answer the complaint[.]”); Weaver v. Moamis, No. 4:14CV311, 2015 WL 874759, at *4 (N.D. Ohio Feb. 27, 2015) (“According to the docket, [the defendant] was never served, and, as a consequence, his answer could not be
untimely filed.”). A. Motion to Set Aside Default As to setting aside the Clerk’s entry of default, “Rule 55(c) leaves to the
discretion of the trial judge the decision whether to set aside an entry of default. However, a strong preference for trials on the merits in federal courts had led to the adoption of a somewhat modified standard of review where defaults are involved.”
Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 193 (6th Cir. 1986). In practice, courts employ a “lenient standard” in evaluating a request to set aside a default that has not yet reached a default judgment. Id. Federal
courts favor trials on the merits; therefore, “any doubt should be resolved in favor of the petition to set aside the judgment.” United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 846 (6th Cir. 1983) (cleaned up). Under Rule 55(c), a court may set aside an entry of default “[f]or good cause
shown.” When evaluating either a motion to set aside a proper entry of default or a default judgment, a court considers three factors: (1) whether the default was the result of the defendant’s willful or culpable conduct; (2) whether the plaintiff
would be prejudiced if the default is set aside; and (3) whether the defendant asserts any meritorious defenses to the claims. United Coin Meter Co., Inc., 705 F.2d at 844-845. “However, these three factors only require consideration when service of
process is properly effected because without proper service the court has no jurisdiction to take any action over the defendant, including entering a default.” Adams v. Wilmington Finance/AIG, No. 12–cv–10308, 2012 WL 2905918, at *1
(E.D. Mich. Apr. 10, 2012), report and recommendation adopted, 2012 WL 2905279 (E.D. Mich. July 16, 2012). “In other words, until a party has been properly served, the Court cannot take action against that party, including entering
a default or judgment by default against that party.” Harper v. ACS-INC., No. 10– 12112, 2010 WL 4366501, at *3 (E.D. Mich. Oct. 28, 2010). Accordingly, “if service of process was not proper, the court must set aside an entry of default.”
O.J. Dist., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003), abrogated on other grounds by Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022). B. Motion to Strike As to Payne’s request to strike, Rule 12(f) provides that a court “may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter[,]” however, that rule “by its clear text does not provide a vehicle to strike an untimely filed answer[,]” Amari v. Spillan, No. 2:08-CV-829,
2009 WL 5216042, at *2 (S.D. Ohio Dec. 29, 2009) (citing Heber v. United States, 145 F.R.D. 576 (D.C. Utah 1992)). III. Discussion A. Motion to Set Aside Default
In their motion to set aside default, defendants argue that the Clerk’s entry of default was improper because defendants were never properly served. The undersigned agrees.
The issues with service were set forth in detail in the February 13, 2023 R&R, see ECF No. 29, and again in the R&R filed alongside this order. In brief, the same individual signed the certificates of service, or green cards, for Anderson,
Broadworth, Silveus, and Townley. (ECF No. 15). This individual does not appear to be one of the named defendants. Additionally, the box for “Restricted Delivery” was not checked on any of the green cards. (Id.). Finally, Anderson,
Broadworth, Silveus, and Townley were all served at the same address (their workplace), rather than at their home addresses. (Id.). Ultimately, because service was not properly completed, the Court must set aside the Clerk’s entry of default as to Anderson, Broadworth, Silveus, and Townley.
Service issues aside, even assuming the Clerk’s entry of default was proper, there is good cause to grant defendants’ motion to set aside the entry of default. Defendants have defended this case by retaining counsel and filing a motion to
dismiss. Payne also cannot show prejudice in allowing the Clerk’s entry of default to be set aside, particularly now that Payne has counsel and counsel filed a supplemental response to the motion to dismiss. B. Motion to Strike
Payne asks the Court to strike defendants’ motion to dismiss, (ECF No. 24), because it was filed after the Clerk entered default as to Anderson, Broadworth, Silveus, and Townley, see ECF No. 21. However, as explained above, the Clerk’s
entry of default must be set aside. With the default set aside, defendants’ motion is deemed to be properly filed. Thus, there is no basis to strike the motion. IV. Conclusion
For the reasons stated above, defendants’ motion to set aside the Clerk’s entry of default, (ECF No. 35), is GRANTED and Payne’s motion to strike, (ECF No. 32), is DENIED.
SO ORDERED. Dated: April 20, 2023 s/Kimberly G. Altman Detroit, Michigan KIMBERLY G. ALTMAN United States Magistrate Judge
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 20, 2023.
s/Carolyn M. Ciesla CAROLYN M. CIESLA Case Manager