Opinion
4:23-cv-01803-MGL-TER
03-27-2024
Reggie Manning, Jr., Plaintiff, v. Officer Ramp, Officer Downing, Officer Henderson, Officer Brown, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This matter is before the Court on Defendant Officer Henderson's (“Henderson”) motion to set aside the Clerk's entry of default (ECF No. 61) and Plaintiff's motion for default judgment against Henderson (ECF No. 62). Plaintiff, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. (ECF No. 1; 41.) Plaintiff is a state inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is presently incarcerated at the McCormick Correctional Institution. (ECF No. 63). The alleged events giving rise to Plaintiff's claims occurred at the Broad River Correctional Institution (“BRCI”). (ECF No. 41 at 5.)
Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B), D.S.C., the undersigned Magistrate Judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court. For the reasons below, the undersigned recommends that Henderson's motion be granted and Plaintiff's motion be denied.
BACKGROUND
Procedural History
Plaintiff commenced this action on April 27, 2023, by filing a hand-written document which was construed as a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Thereafter, Plaintiff filed a Complaint on the standard form (ECF No. 1-3) along with supporting documents (ECF No. 1-5) and affidavits (ECF No. 1-6). Thereafter, Plaintiff filed an Amended Complaint, which was entered by the Clerk on September 27, 2023. (ECF No. 41.)
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on April 27, 2023, the date that Plaintiff delivered the Complaint to the BRCI mailroom for forwarding to this Court. (ECF No. 1-2 at 1 (envelope stamped as received at the BRCI mailroom on April 27, 2023).)
When the case was filed, it was assigned to the Honorable Jacquelyn D. Austin for screening. Judge Austin issued an Order dated May 3, 2023, directing Plaintiff to bring the case into proper form. (ECF No. 6.) On May 31, 2023, the Honorable Mary Geiger Lewis entered an Order dismissing the case pursuant to Rule 41 of the Federal Rules of Civil Procedure for failure to prosecute because Plaintiff had not filed the necessary information and paperwork to bring the case into proper form within the deadline set forth in Judge Austin's Order. (ECF No. 11.) Thereafter, Plaintiff filed his proper form documents and an appeal, which the Court construed as a motion to alter or amend the judgment pursuant to Rule 59(e). (ECF No. 28.) Judge Lewis granted the motion, set aside the judgment, reopened the case, and recommitted the matter to Judge Austin for further proceedings. (Id.) On July 31, 2023, Judge Austin issued an Order again directing Plaintiff to bring the case into proper form (ECF No. 32) and, on September 5, 2023, issued a notice and order regarding amendment of the complaint (ECF No. 39). Plaintiff then filed an Amended Complaint, which was entered on September 27, 2023. (ECF No. 41.) The case was subsequently reassigned to the undersigned Magistrate Judge on January 26, 2024. (ECF No. 67.)
By Order dated October 27, 2023, the Court authorized service of process of the Amended Complaint (ECF No. 44) and issued a Summons as to the four Defendants named in the caption above (ECF No. 45). Because Plaintiff is proceeding pro se and in forma pauperis in this action, the United States Marshals Service (“USMS”) was directed to accomplish service. (ECF No. 44 at 1-2.)
On December 27, 2023, the USMS filed a Summons returned executed indicating Henderson had been served on December 8, 2023 (ECF No. 50), and on January 4, 2023, the USMS filed a Summons returned executed indicating the remaining three Defendants-Officers Brown, Downing, and Ramp-had also been served on December 8, 2023 (ECF No. 54). Counsel for Defendants Brown, Downing, and Ramp entered their notices of appearance on December 29, 2023 (ECF Nos. 51; 52), and filed an Answer to the Amended Complaint on behalf of those three Defendants that same day (ECF No. 53).
On January 5, 2024, the Clerk entered a Clerk's Entry of Default against Henderson. (ECF No. 56.) That same day, counsel for the other three Defendants entered a notice of appearance on behalf of Henderson. (ECF Nos. 59; 60.)
On January 8, 2024, counsel for Henderson filed a motion for enlargement of time to answer and to set aside default. (ECF No. 61.) Henderson attached to his motion an affidavit in support of the motion (ECF No. 61-1) and a proposed Answer to the Complaint (ECF No. 61-2). On January 29, 2024, Plaintiff filed a declaration. (ECF No. 70.) It is unclear to the Court whether Plaintiff's declaration is filed as a response to Henderson's motion or in support of his own motion. Additionally, on February 1, 2024, Plaintiff filed a “Response to Defendant's Answer to Complaint/Amended Motions,” but that appears to be a response to Defendant Ramp, Brown, and Downing's Answer to the Amended Complaint. (ECF No. 71.) As such, it does not appear that Plaintiff filed a response to Henderson's motion. Nonetheless, the court has considered Plaintiff's declaration in analyzing these motions.
On January 12, 2024, Plaintiff filed a motion for default judgment as to Henderson. (ECF No. 62.) On January 26, 2024, Henderson filed a response in opposition to Plaintiff's motion. (ECF No. 68.) Both motions are now ripe for consideration.
Allegations in the Amended Complaint
Plaintiff makes the following pertinent allegations in his Amended Complaint. (ECF No. 41.) Plaintiff contends Defendants have violated his rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution by placing him in harmful conditions and circumstances and refusing emergency care after he sustained an injury. (Id. at 4.)
In a written attachment to the Amended Complaint, Plaintiff avers the following with respect to the statement of his claim. (ECF No. 41-1.) On March 23, 2021, he was maliciously injured by Defendants Ramp, Downing, Brown, and Henderson. (Id. at 1.) Defendants Ramp, Downing, and Brown were escorting Plaintiff from a DHO hearing. (Id.) As they were passing Cell 197, they paused because inmates were out of their cells in violation of SCDC policy. (Id.) This created a “major distraction.” (Id.) After the brief pause, Plaintiff slipped and fell while in handcuffs on a wet floor. (Id.) Plaintiff immediately felt pain and informed the escorting officers. (Id.) Plaintiff insisted on being seen by medical. (Id.) Defendants Ramp, Brown, and Downing denied his request. (Id.) Plaintiff then “made an outburst” so that nearby inmates could hear that he was being denied medical attention. (Id.) Plaintiff was feeling pain in his back, neck, and head. (Id.) Defendant Henderson held the cell door keys. (Id.) Plaintiff contends that numerous inmates witnessed the incident and cameras within the unit recorded the incident. (Id.)
Plaintiff contends that Defendants violated his rights in that they disobeyed SCDC policy by escorting him in restraints through a unit with other unsecured inmates out of their cells, taking showers, walking around, and mopping. (Id.) Plaintiff contends Defendants knowingly and willfully jeopardized his safety. (Id.)
For his injuries, Plaintiff contends that he suffers from degenerative disc disease in his lower back in the area where the handcuffs penetrated. (ECF No. 41 at 6.) He claims that this injury was diagnosed by a physician after an MRI was performed and that he has been scheduled for steroid injections. (Id.) He contends that he will suffer from a lifelong injury, pain, and suffering with no cure. (Id.) He contends that he cannot work any job and, if his injury is not properly treated, he may suffer paralysis. (Id.) For his relief, Plaintiff requests general damages in the amount of $20 million and special damages in the amount of $80 million. (Id.)
APPLICABLE LAW
Review of Pro Se Filings
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the Court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411,417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the Court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Motion to Set Aside Entry of Default Standard
Rule 55(a) of the Federal Rules of Civil Procedure states that the clerk must enter a party's default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” After the clerk enters default, the opposing party may seek a default judgment under Rule 55(b). However, Rule 55(c) provides that “[t]he court may set aside an entry of default for good cause.” The Fourth Circuit Court of Appeals has held that, “[a]lthough the clear policy of the Rules is to encourage dispositions of claims on their merits, trial judges are vested with discretion, which must be liberally exercised, in entering [default] judgments and in providing relief therefrom.” United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982) (internal citations omitted). To determine whether an entry of default should be set aside based on the good cause standard of Rule 55(c), courts should consider the following factors: “whether the moving party has a meritorious defense, whether it acts with reasonable promptness, the personal responsibility of the defaulting party, the prejudice to the party, whether there is a history of dilatory action, and the availability of sanctions less drastic.” Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006).
Motion for Default Judgment Standard
As noted, Rule 55 of the Federal Rules of Civil Procedure provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). “A court must have both subject matter and personal jurisdiction over a defaulting party before it can render a default judgment.” United States v. Clark, No. 3:17-cv-03440-JMC, 2019 WL 1122933, at *1 (D.S.C. Mar. 12, 2019) (internal quotation marks omitted). “Valid service of process is a prerequisite to a district court's assertion of personal jurisdiction.” Choice Hotels Int'l, Inc. v. Bonham, 125 F.3d 847, at *1 (4th Cir. Sep. 30, 1997) (unpublished table opinion) (internal quotation marks omitted). Thus, prior to entry of default, a plaintiff must show that the defendant in question was properly served with the summons and complaint as required by Rule 4 of the Federal Rules of Civil Procedure.
In considering a motion for default judgment, the Court accepts as true all well-pleaded factual allegations in the Complaint not relating to the amount of damages. See Fed. R. Civ. P. 8(b)(6). Thus, regarding default judgments, the “appropriate inquiry is whether or not the face of the pleadings supports the default judgment and the causes of action therein.” Anderson v. Found. for Advancement Educ. & Emp't of Am. Indians, 187 F.3d 628, 1999 WL 598860, at *1 (4th Cir. 1999) (unpublished table opinion). The Fourth Circuit has a “strong policy that cases be decided on the merits,” United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993), but finds that default judgment “may be appropriate when the adversary process has been halted because of an essentially unresponsive party,” S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005).
DISCUSSION
Henderson's Motion to Set Aside Default
As noted, Henderson has filed a motion in which he requests an enlargement of time to file an Answer to the Amended Complaint pursuant to Rule 6(b) and requests that the Court set aside the Clerk's entry of default pursuant to Rule 55(c). (ECF No. 61 at 1.)
The Parties' Arguments
In his motion, Henderson notes that his first responsive pleading was due on December 29, 2023, and that the Clerk's entry of default was entered on January 5, 2024. (Id. at 1.) He contends that he accepted service of the Summons and Amended Complaint from the USMS on December 8, 2023. (Id. at 2.) He argues that he believed counsel for SCDC would file a response for him as they had done in the past. (Id. at 3.) On January 5, 2023, counsel for Defendants Ramp, Downing, and Brown, received electronic notification of the Clerk's entry of default as to Henderson. (Id.) That same day, counsel for those Defendants contacted the USMS requesting information regarding service on Henderson, then contacted Henderson who agreed to counsel's representation of him in this action, and then filed a notice of appearance on behalf of Henderson. (Id. 3-4.)
Henderson argues that good cause exists to set aside the default against him under Rule 55(c), and he requests an enlargement of time within which to file his Answer to the Amended Complaint. (Id. at 4-5.) In support of his showing of good cause, Henderson argues that he has a meritorious defense to Plaintiff's claims, that he responded to the entry of default with reasonable promptness, that his personal responsibility as the defaulting party is excusable, that no prejudice exists to Plaintiff in setting aside the default, that there is no history of dilatory action, and that less drastic sanctions exist to set aside default. (Id. at 7-13.)
Henderson has attached to his motion an affidavit in which he makes the following averments in support of the motion. (ECF No. 61-1.) Henderson was formerly employed by the State of South Carolina and SCDC. (Id. at 1 ¶ 2.) On December 8, 2023, he voluntarily met an officer from the USMS at his home in Summerville, South Carolina, to accept service of legal papers. (Id. at 1 ¶ 3.) He signed for a Summons and Amended Complaint that was addressed to him. (Id.) Prior to that meeting, Henderson had been contacted by the USMS to verify his current address. (Id. at 1 ¶ 4.) When Henderson accepted service on December 8, 2023, the process server from the USMS “told [him] that he was taking the other copies of the legal papers to SCDC in Columbia that day.” (Id. at 2 ¶ 6.) During Henderson's new hire orientation at SCDC, he was told that SCDC would accept service of legal papers and defend lawsuits brought by inmates against any SCDC employee. (Id. at 2 ¶ 7.) Henderson previously had been named in at least one other lawsuit during his employment with SCDC and SCDC had provided legal representation. (Id.) Because the present lawsuit was brought against him by an inmate alleging violation of SCDC policy during his time of employment with SCDC and because he was aware that the legal papers were being delivered to SCDC the same day he was served, Henderson did not contact SCDC to let them know he had accepted service of the papers. (Id. at 2 ¶ 8.) After meeting with the USMS, Henderson had no additional contact with or from anyone regarding this lawsuit until January 5, 2023. (Id.) On January 5, 2023, Henderson spoke with Attorney Hardin and confirmed he had accepted service of the legal papers. (Id. at 2 ¶ 9.) Henderson has review the Amended Complaint and notes that he was assigned to work at BRCI in March 2021 and that he had limited interactions with Plaintiff. (Id. at 3 ¶¶ 10-12.) He contends that he did not see Plaintiff slip and fall on March 23, 2021, and was not involved in transporting him from a DHO hearing that day. (Id. at 3 ¶ 13.) He contends he does not recall being approached by Plaintiff requesting medical care or attention and did not deny Plaintiff's request to receive medical care. (Id. at 3 ¶¶ 14-15.) Henderson's employment at SCDC ended on June 25, 2021. (Id. at 3 ¶ 16.)
The Court's Analysis
The Fourth Circuit Court of Appeals has “repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits.” Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). As noted, “[w]hen deciding whether to set aside an entry of default, a district court should consider whether the moving party has a meritorious defense, whether it acts with reasonable promptness, the personal responsibility of the defaulting party, the prejudice to the party, whether there is a history of dilatory action, and the availability of sanctions less drastic.” Payne, 439 F.3d at 204-05. In short, “a default should be set aside where the moving party acts with reasonable promptness and alleges a meritorious defense.” Consol. Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249, 251 (4th Cir. 1967). “Any doubt about whether relief should be granted should be resolved in favor of setting aside the default so that the case may be heard on the merits.” Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969).
The Court will evaluate each of the Payne factors in turn below.
1. Meritorious Defense
As to the first factor, Henderson has sufficiently alleged a potential meritorious defense to Plaintiff's claims against him. Henderson's proposed Answer to the Amended Complaint (ECF No. 62-2) enumerates several defenses to Plaintiff's claims. Significantly, among other defenses, Henderson contends that the Amended Complaint fails to state a claim for relief and that he is entitled to qualified immunity and Eleventh Amendment immunity. (Id.) Such defenses, properly pled in Henderson's proposed Answer, demonstrate good cause for why the entry of default should be set aside as to him. See, e.g., Hinton v. Henderson, No. 3:10-cv-505-RJC-DLH, 2011 WL 4501913, at *6 (W.D. N.C. Sept. 28, 2011) (finding good cause to set aside default where the defendant demonstrated “several meritorious defenses including Eleventh Amendment and qualified immunities, and a 12(b)(6) contention”); Eaker v. Overturf, No. 1:07-cv-608, 2008 WL 2945454, at *3 (M.D. N.C. July 25, 2008) (finding good cause where the defendant raised “the potentially meritorious defense of qualified immunity in the Answer attached to [his] motion to set aside the entry of default”); Smith v. Ozmint, No. 9:04-cv-1819-PMD, 2005 WL 8161933, at *2 (D.S.C. Oct. 31, 2005) (finding the defendant in default had established a meritorious defense that the underlying complaint failed to state a claim upon which relief could be granted).
In his motion, and as supported by his proposed Answer and his affidavit, Henderson details his arguments as to his defense that the Amended Complaint fails to state a claim for relief. (ECF No. 61 at 7-9.) “[A]ll that is necessary to establish the existence of a ‘meritorious defense' is a presentation or proffer of evidence, which, if believed, would permit either the Court or the jury to find for the defaulting party.” Moradi, 673 F.2d at 727. The Court finds that Henderson has satisfied this standard.
Consequently, the first Payne factor weighs in favor of setting aside the entry of default as Henderson has established a meritorious defense as pled in his Answer and detailed in his motion and affidavit.
2. Reasonable Promptness
The second factor also weights in favor of granting Henderson's motion. Here, the Court concludes that Henderson acted with reasonable promptness, as he moved to set aside the entry of default (on January 8, 2024) only three days after the Clerk's entry of default (January 5, 2024) and only ten days after the answer deadline (December 29, 2023). See, e.g., Bell v. Artic Cat, Inc., No. 0:18-cv-02850-MGL, 2021 WL 1791164, at *2 (D.S.C. May 5, 2021) (noting the plaintiff acted with reasonable promptness when it moved to set aside the entry of default thirty-one days after the plaintiff requested an entry of default and collecting cases with similar time frames); Reg'l Med. Ctr. of Orangeburg v. Salem Servs. Grp., LLC, No. 5:19-cv-00287-JMC, 2020 WL 1956515, at *3 (D.S.C. Apr. 23, 2020) (noting “[d]istrict courts in the Fourth Circuit have found that a defendant acted reasonably promptly when waiting seventeen, twenty-one, and thirty-two days after default was entered before attempting to set it aside” (quotation marks and citation omitted)). These facts show that Henderson “acted with reasonable promptness and began to reply to filings once he retained competent counsel.” J & J Sports Prods., Inc. v. Wofford, No. 6:13-cv-02403-GRA, 2014 WL 234220, at *2 (D.S.C. Jan. 22, 2014).
3. Personal Responsibility
With respect to the third factor, Henderson has submitted an affidavit in which he explains that, based on his communication with the USMS and his prior experience at SCDC, he believed SCDC was aware of the lawsuit and would provide a legal defense for him. (ECF No. 61-1 at 2-3 ¶¶ 7-9.) In his motion, Henderson argues that “he reasonably believed that a responsive pleading would be filed on his behalf.” (ECF No. 61 at 11.) Henderson points to Lowe v. Ballard, No. 2:19-cv-00504, 2023 WL 3471446, at *2 (S.D. W.Va. May 15, 2023), which involved a nearly identical set of circumstances where a defendant named in that action left the employment of a prison, was served with process at his home address, and believed the prison would provide legal defense. The court found that the defendant satisfied the good cause standard, noting that, “[u]pon being served with a notice of entry of default, [the defendant] took immediate steps to employ counsel to represent his interests and filed his motion to set aside entry of default.” Id.
The Court finds Henderson's argument persuasive and the facts of this case squarely in line with Lowe. “When the party's default was the result of negligence, the Court may consider whether the negligence was excusable in determining whether to set aside entry of default.” Pinpoint IT Servs., L.L.C. v. Atlas IT Exp. Corp., 812 F.Supp.2d 710, 726 (E.D. Va. 2011). Although Henderson is not blameless in his failure to adequately communicate with counsel to verify whether SCDC would provide legal representation, his failure to do so does not appear to be intentional and his actions are excusable based on his prior experience with legal representation arising from his employment with SCDC. Henderson has provided a reasonable explanation to show excusable neglect for his conduct resulting in default. Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 811 (4th Cir. 1988) (“When the party is at fault, . . . the party must adequately defend its conduct in order to show excusable neglect.”). Thus, this factor weighs in favor of setting aside default.
4. Prejudice to the Non-Moving Party
As to the fourth factor, there is no indication that Plaintiff will be prejudiced by setting aside the default. “In the context of a motion to set aside an entry of default, . . . delay in and of itself does not constitute prejudice to the opposing party,” Colleton Preparatory Acad., 616 F.3d at 418, nor does prejudice result when a litigant “loses a quick [default-based] victory,” Augusta Fiberglass, 843 F.2d at 812. “To assess the prejudice to the non-defaulting party, courts examine whether the delay: (1) made it impossible for the non-defaulting party to present some of its evidence; (2) made it more difficult for the non-defaulting party to proceed with trial; (3) hampered the non-defaulting party's ability to complete discovery; and (4) was used by the defaulting party to collude or commit a fraud.” McKesson Med.-Surgical, Inc. v. Flower Orthopedics Corp., No. 3:17-cv-631, 2018 WL 944375, at *7 (E.D. Va. Feb. 16, 2018).
Here, none of these factors are impacted by the default, thus weighing in favor of setting aside the default. There is no indication that Plaintiff will be unable to present certain evidence, have difficulty with proceeding with trial, or is unable to conduct discovery as a result of Henderson's default. This case is in the early stages of proceedings and no deadlines will be affected by allowing Henderson to Answer Plaintiff's Amended Complaint. The entry of default was directed by the Court and Plaintiff has not incurred any cost or expense as a result of the default. Here, the absence of any identifiable prejudice means this factor favors setting aside the default.
5. History of Dilatory Action
The fifth factor does not appear to be an issue in this case. There is simply no evidence of an additional history of dilatory conduct. “Failing to timely answer a summons and complaint does not alone establish a history of dilatory action.” Integon Nat'l Ins. Co. v. Gomez, No. 2:19-cv-02958-DCN, 2020 WL 6585599, at *7 (D.S.C. Nov. 10, 2020). “[T]he Fourth Circuit generally examines a party's ‘history of dilatory action' apart from the delay causing the default itself.” Lindemann-Moses v. Jackmon, 644 F.Supp.3d 163, 179 (M.D. N.C. 2022) (citation omitted).
Here, the only delay was Henderson's failure to file his Answer within the responsive pleading deadline. However, upon learning of the default, Henderson immediately filed the present motion asking the Court to set aside the default and allow him to file his Answer. As noted, Henderson acted with reasonable promptness in filing his motion only three days after the Clerk's entry of default and only ten days after the answer deadline. Thus, the Court does not find a history of dilatory action at this early stage of litigation, and this factor therefore weighs in favor of setting aside the entry of default.
6. Availability of Less Drastic Sanctions
As to the final factor, Henderson argues that “a less drastic sanction for a failure to timely respond to the Amended Complaint is to accept Defendant Henderson's Answer.” (ECF No. 61 at 13.) However, “this alternative does nothing to sanction [Henderson] for [his] . . . violation of the Federal Rules of Civil Procedure.” Mullinex v. John Crane Inc., 636 F.Supp.3d 622, 628 (E.D. Va. 2022). “Some commonly imposed alternative sanctions include monetary awards of costs, attorney's fees, or contempt of court.” Artistic Stone Crafters, Inc. v. Safeco Ins. Co. of Am., No. 2:10-cv-45, 2010 WL 11700299, at *7 (E.D. Va. Apr. 15, 2010). “[T]he Court notes that the most appropriate alternative sanction, an award of attorney's fees and costs, is not feasible” in this case, id., as Plaintiff is proceeding pro se and that other sanctions would not be proper or effective under the circumstances. As such, the Court finds that this factor weights against setting aside the entry of default.
Conclusion
In sum, considering the totality of the circumstances and in light of the Payne factors discussed above, the Court finds that good cause exists under Rule 55(c) to set aside the entry of default. Although a less drastic sanction does not exist, the Court finds that sanctions are not warranted in this case and that the remaining Payne factors all weigh in favor of setting aside the default. Further, the undersigned concludes that the time to file an Answer should be enlarged to permit Henderson to file his Amended Complaint for the reasons noted above and the court should direct the Clerk to file the proposed answer submitted by the Defendant.
Plaintiff's Motion for Default Judgment
Next, the Court turns to Plaintiff's motion for default judgment. Because Henderson's motion to set aside entry of default should be granted, the undersigned recommends finding as moot Plaintiff's motion for default judgment. See Allergy Partners, P.A. v. Cox, No. 6:16-cv-0089-HMH, 2016 WL 9685363, at *2 (D.S.C. May 12, 2016) (“Because the court grants [the defendant's] motion to set aside the entry of default, [the plaintiff's] motion for default judgment is moot.”); Scott v. Richland Cnty., No. 8:22-cv-02031-MGL-JDA, 2022 WL 17853558, at *1 (D.S.C. Nov. 30, 2022) (same), Report and Recommendation adopted by 2022 WL 17852660 (D.S.C. Dec. 22, 2022).
CONCLUSION AND RECOMMENDATION
In light of the above, the undersigned recommends that Henderson's motion to set aside entry of default (ECF No. 61) be GRANTED and that Plaintiff's motion for default judgment (ECF No. 62) be DENIED as moot.
IT IS SO RECOMMENDED.