# DAVIS v. UNIVERSITY OF NORTH CAROLINA AT GREENSBORO

> District Court, M.D. North Carolina · January 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10253982

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** January 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253982

## How later opinions describe it (automated extraction)

- discussing factor in context of relief from default judgment under Rule 60(b)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

AUTUMN DAVIS, )
)
Plaintiff, )
)
v. ) 1:19CV661
)
UNIVERSITY OF NORTH CAROLINA )
AT GREENSBORO, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is a Motion to Set Aside Entry
of Default filed by Defendant Raleigh School of Nurse Anesthesia
(“RSNA”). (Doc. 26.) Plaintiff Autumn Davis (“Plaintiff”)
responded in opposition. (Doc. 37.) RSNA replied. (Doc. 40.) For
the reasons set forth herein, this court will grant RSNA’s
Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2019, Plaintiff filed a complaint in this court
asserting multiple claims against Defendants University of North
Carolina at Greensboro (“UNCG”), the Board of Governors of the
University of North Carolina (“Board”), and RSNA. (Doc. 1.)1 UNCG
and the Board waived service. (Docs. 5, 6.)
On August 21, 2019, Plaintiff filed an Affidavit of Service
by Mail averring that RSNA had been served on August 15, 2019.
(Doc. 7.) The Affidavit asserts that the complaint and summons
were served on RSNA’s registered agent, Walter Rogers, at “3900
Barrett Drive” in Raleigh, North Carolina, “via certified mail
as evidenced by the attached print out and signed returned
receipt.” (Id. at 1.) The signed returned receipt shows that the

certified mail was signed for by “Robert Stephens.” (Id. at 2.)
The print out shows that the certified mail was delivered to a
location in Greensboro, North Carolina. (Id. at 4.)
While Defendants UNCG and the Board filed a motion to
dismiss the complaint and subsequently an answer, (Docs. 8, 15),
RSNA failed to file an answer or have an attorney make an
appearance on its behalf.
Thus, on May 5, 2021, Plaintiff filed a Motion for Entry of
Default Final Judgment against RSNA. (Doc. 18.) The next day,
the Clerk of Court issued an Entry of Default against RSNA
stating that because “Defendant Raleigh School of Nurse

1 All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
Anesthesia has failed to plead or otherwise defend the action
. . . [it] is subject to default as provided by Rule 55 of the
Federal Rules of Civil Procedure.” (Doc. 19.)
On June 10, 2021, a Notice of Appearance was filed by an
attorney on RSNA’s behalf, (Doc. 24), along with a Motion to Set
Aside Entry of Default pursuant to Federal Rule of Civil
Procedure 55(c), (Doc. 26). RSNA also filed a brief, (Doc. 27),
and a Declaration of Jonathan W. Blank, MD, (Doc. 28).
II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 55(c), this court
“may set aside an entry of default for good cause[.]” Fed. R.
Civ. P. 55(c). In determining whether good cause exists for
setting aside an entry of default, the Fourth Circuit has set
forth six factors to consider: (1) “whether the moving party has
a meritorious defense”; (2) “whether it acts with reasonable
promptness”; (3) “the personal responsibility of the defaulting
party”; (4) “the prejudice to the party”; (5) “whether there is
a history of dilatory action”; and, (6) “the availability of
sanctions less drastic.” Payne ex rel. Estate of Calzada v.
Brake, 439 F.3d 198, 204–05 (4th Cir. 2006) (citations omitted).

This court also notes that an “extensive line of decisions”
has held that “Rules 55(c) and 60(b) are to be liberally
construed in order to provide relief from the onerous
consequences of defaults and default judgments.”2 Tolson v.
Hodge, 411 F.2d 123, 130 (4th Cir. 1969) (citations omitted).
The Fourth Circuit 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) (citations omitted).
III. ANALYSIS
This court concludes that good cause exists to set aside

the entry of default because five of the six factors weigh in
RSNA’s favor. The only factor weighing in Plaintiff’s favor is
personal responsibility of the defaulting party, infra Part
III.C, which in the aggregate is outweighed by the other five
factors. Each factor is addressed in turn.

2 Although [courts] have analyzed Rule 55(c) and Rule 60(b)
motions using the same factors, the burden on a movant
seeking relief under the two rules is not the same. . . .
Rule 60(b) motions request relief from judgment, which
implicates an interest in “finality and repose,” a
situation that is not present when default has been entered
under Rule 55(a) and no judgment has been rendered.
Therefore, while an analysis under each rule employs
similar factors, Rule 60(b)’s “excusable neglect” standard
is a more onerous standard than Rule 55(c)’s “good cause”
standard, which is more forgiving of defaulting parties
because it does not implicate any interest in finality.

Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616
F.3d 413, 420 (4th Cir. 2010) (internal citations omitted).
A. Whether Defendant has a Meritorious Defense
“In determining whether there is a meritorious defense for
purposes of setting aside a default, ‘all 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[.]’” Carter v. City of High Point, No. 1:17CV148, 2017 WL

4043751, at *3 (M.D.N.C. Sept. 12, 2017) (quoting United States
v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982)) (internal
quotation marks omitted). The defaulting party “need not prove
his meritorious defense by a preponderance of the evidence[.]” J
& J Sports Prods., Inc. v. Argueta, No. 1:12cv1329, 2013 WL
5960859, at *2 (M.D.N.C. Nov. 7, 2013). Rather, the “underlying
concern is . . . whether there is some possibility that the
outcome . . . after a full trial will be contrary to the result
achieved by the default.” Augusta Fiberglass Coatings, Inc. v.
Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988)
(internal quotation marks omitted) (alterations in original)
(quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice and

Procedure § 2697, p. 531 (2d ed. 1983)). “Any doubts should be
resolved in favor of the movant for relief.” J & J Sports
Prods., 2013 WL 5960859, at *2 (citation omitted).
Here, RSNA argues that it “has a meritorious defense
against all claims for lack of jurisdiction, insufficient
process, and insufficient service of process.” (Br. in Supp. of
Mot. to Set Aside Entry of Default (“RSNA’s Br.”) (Doc. 27) at
6.) RSNA acknowledges that service may be affected via “mailing
a copy of the summons and of the complaint, registered or
certified mail, return receipt requested, addressed to the
officer, director, or agent.” (Id. (referencing Fed. R. Civ. P.
4(e)(1), (h)(1)(A), and N.C. R. Civ. P. 4(j)(6)).) However, RSNA

maintains that Plaintiff failed to execute this process because
(1) “Plaintiff attempted service on the RSNA at a vacated office
and did not include the correct address, which required a suite
number[,]” and (2) “[t]he individual who signed the return
receipt was not authorized to accept service on behalf of RSNA.”
(Id. (citing Decl. of Jonathan W. Blank, MD (“Blank Decl.”)
(Doc. 28) ¶¶ 6, 8).)
Plaintiff insists she properly served RSNA and thus argues
that RSNA’s proffered defense is not meritorious. (Pl.’s Opp’n
to Def. RSNA’s Mot. to Set Aside Default J. (“Pl.’s Opp’n Br.”)
(Doc. 37) at 4-5.) As evidence of proper service, Plaintiff

points to an exhibit attached to Dr. Blank’s Declaration. (Id.)
The exhibit is an email from Dr. Blank to Plaintiff’s counsel
that was sent on August 29, 2019, (Ex. 3 (“Email”) (Doc. 28-3)),
more than a week after Plaintiff’s counsel had already filed an
affidavit averring that service had occurred, (Aff. of Service
by Mail (Doc. 7)). In the email, Dr. Blank acknowledges that he
was “president of the Board of Directors of the Raleigh nurse
anesthesia school,” and that “[t]here was a statement of
complaint sent by mail, which has been forwarded to me and for
which I signed receipt o[n] Tuesday 27 August 2019.” (Email
(Doc. 28-3) at 2.)
In this attempt to pivot to Dr. Blank’s email acknowledging

that he signed receipt for the complaint, Plaintiff simply
ignores the patent shortcomings in her service documents — most
prominently, that although Plaintiff’s counsel avers that
service was received by Walter Rogers, RSNA’s then-registered
agent, the signed return receipt Plaintiff filed shows a “Robert
Stephens” as signing for delivery. (Aff. of Service by Mail
(Doc. 7).) RSNA claims, and Plaintiff has not argued otherwise,
that “Mr. Stephens has no connection or affiliation with RSNA.”
(Blank Decl. (Doc. 28) ¶ 8.) Plaintiff’s silence on this issue
seems to be a practical concession that her service documents
are defective.

Plaintiff’s attempt to rehabilitate the legitimacy of her
service on RSNA is insufficient to undermine the existence of
RSNA’s meritorious service of process defense because, at this
juncture, RSNA need not prove that its proffered meritorious
defense is more likely than not. J & J Sports Prods., 2013 WL
5960859, at *2. Rather, RSNA must merely tender a colorable
defense that has “some possibility” of ultimate success.
Augusta, 843 F.2d at 812. RSNA has met that low bar, and thus
this factor weighs in favor of setting aside the entry of
default.3
B. Whether Defendant Acted with Reasonable Promptness

“As to the second factor, whether a party has taken
reasonably prompt action to set aside an entry of default ‘must
be gauged in light of the facts and circumstances of each
occasion.’” Superior Performers, Inc. v. Thornton, No. 1:20-cv-
00123, 2020 WL 6060978, at *3 (M.D.N.C. Oct. 14, 2020) (quoting
Moradi, 673 F.2d at 727).
Here, Plaintiff does not appear to contest that RSNA acted
with reasonable promptness to set aside the entry of default.
Therefore, this court is inclined to accept RSNA’s assertions
that it acted reasonably promptly. (RSNA’s Br. (Doc. 27) at 10-
12.) RSNA claims that due to Plaintiff improperly serving the

motion for entry of default on the wrong address, RSNA was not

3 Because this court finds that RSNA has a meritorious
service of process defense, it need not comment on whether
RSNA’s other would-be defenses — such as that on Eleventh
Amendment grounds, (RSNA’s Br. (Doc. 27) at 6-7), — also have
merit.
notified about the matter until co-defendants’ counsel sent a
letter notifying RSNA of the default “as a matter of
professional courtesy.” (Id. at 11; Blank Decl. (Doc. 28) ¶¶ 17-
18; Ex. 5 (Doc. 28-5).) This letter was received on May 23,
2021, (Blank Decl. (Doc. 28) ¶ 19), about two and a half weeks
after the entry of default had been issued, (Doc. 19). The day
after receiving the letter, RSNA emailed Plaintiff’s counsel and
expressed concern about not being notified that an entry of
default was pending. (Ex. 6 (Doc. 28-6).) Plaintiff’s counsel

did not respond. (Blank Decl. (Doc. 28) ¶ 21.) Two days later,
RSNA engaged counsel. (Id. ¶ 22.) RSNA’s counsel then filed the
instant Motion to Set Aside Entry of Default on June 10, 2021.
(Doc. 26.) This was just over a month after the default had been
entered and within three weeks of RSNA learning of it.
Given these circumstances, and that Plaintiff has not
argued otherwise, this court concludes that RSNA acted
reasonably promptly to set aside the entry of default.
Therefore, this factor weighs in favor of setting the default
aside.
C. Personal Responsibility of the Defaulting Party

“[I]n determining the responsibility of the party for the
default, the Fourth Circuit focuses on the source of the
default.” Superior Performers, 2020 WL 6060978, at *3. “[W]here
the party’s own action or inaction [as opposed to the conduct of
its attorney] is the source of the default, this factor weighs
against setting aside entry of default,” id. (citation omitted),
and that “party must adequately defend its conduct in order to
show excusable neglect,” Carter, 2017 WL 4043751, at *3
(internal quotation marks omitted) (quoting Augusta, 843 F.2d at
811 (discussing factor in context of relief from default
judgment under Rule 60(b))).
RSNA defends its conduct, pointing to Dr. Blank’s August

29, 2019 email to Plaintiff’s counsel as evidence of responsible
behavior. (RSNA’s Br. (Doc. 27) at 9-10.) In that email, Dr.
Blank explains that “the Raleigh nurse anesthesia program has
been subsumed into University of North Carolina-Greensboro’s
School of Nursing,” and asks whether in light of that, he, as
RSNA’s Board President, needs to do anything. (Email (Doc. 28-3)
at 2-3.) Plaintiff’s counsel never responded. (Blank Decl.
(Doc. 28) ¶ 13.) “Having not heard from Plaintiff’s counsel and
lacking other direction, Dr. Blank thought RSNA need not respond
to the complaint.” (RSNA’s Br. (Doc. 27) at 10; accord Blank
Decl. (Doc. 28) ¶¶ 14-15.) RSNA argues that Dr. Blank’s actions

here show that “RSNA acted responsibly” because it had tried to
“understand what action would be needed, if any, to address the
complaint.” (RSNA’s Br. (Doc. 27) at 10.)
This court disagrees. While Dr. Blank’s confusion was
seemingly sincere — and perhaps understandable given the recent
subsuming of RSNA into UNC-G and that he had received the
complaint from UNC-G personnel, (Blank Decl. (Doc. 28) ¶¶ 4, 9),
— he nevertheless acted irresponsibly by not independently
confirming that there was nothing further required of RSNA. It
was unreasonable to simply assume that the lack of response from
opposing counsel somehow meant that no action was required. At a
minimum, Dr. Blank should have done something to verify this

incorrect assumption. His failure to do so means RSNA bears
personal responsibility for the default, and thus this factor
weighs against setting the default entry aside. But importantly,
that this factor weighs in that direction “does not require
denying [RSNA]’s motion to vacate the entry of default[,]”
Carter, 2017 WL 4043751, at *4, especially where, as here, all
other factors weigh in RSNA’s favor.
D. Prejudice to the Plaintiff
“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, 616 F.3d at 418
(citation omitted). “[N]o prejudice accrues from ‘los[ing] a
quick [default-based] victory[.]’” United States v. Manriques,
Nos. 1:10CR440-1, 1:13CV444, 2013 WL 5592191, at *5 (M.D.N.C.
Oct. 10, 2013) (alterations in original) (quoting Augusta, 843
F.2d at 812), report and recommendation adopted, No. 1:10CR440-1
(M.D.N.C. Dec. 31, 2013). Rather, prejudice accrues when
evidentiary issues arise, like that of “[a] missing witness in
the case whose testimony was made unavailable by the delay,
. . . any records made unavailable by the delay, . . . [or] any
evidence for the plaintiff which could have been presented
earlier, the presentation of which was prevented by the delay.”
Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 952 (4th Cir.

1987).
Here, Plaintiff does not argue that she is prejudiced on
any evidentiary grounds, instead arguing more generally that she
is prejudiced by RSNA’s delay. (Pl.’s Opp’n Br. (Doc. 37) at 7
(stressing the prejudice caused by RSNA letting the case “sit
for nearly twenty-two months” given that “cases already take
considerable time to be resolved through the court system”).)
For purposes of setting aside a default entry, delay alone is
not cognizable prejudice, Colleton, 616 F.3d at 417, and,
therefore, this factor weighs in RSNA’s favor.
E. History of Dilatory Action

“As to the fifth factor, the Fourth Circuit generally
examines a party’s ‘history of dilatory action’ apart from the
delay causing the default itself.” Superior Performers, 2020 WL
6060978, at *3 (citation omitted). Plaintiff argues that Dr.
Blank’s declaration and RSNA’s North Carolina Secretary of State
filings contain conflicting statements, which “demonstrates a
history of RSNA’s dilatory attention to the details of attending
to its affairs and this case.” (Pl.’s Opp’n Br. (Doc. 37) at 6-
7.)
For three reasons, this court disagrees that these
statements establish that RSNA has a history of dilatory action.
First, it is far from clear that the statements Plaintiff

identifies actually conflict with one another. Second, even if
they do conflict, Plaintiff has failed to explain how that
constitutes “dilatory action,” as opposed to mere carelessness.
Third, even if the statements conflict and constitute dilatory
action, Plaintiff has not explained how such dilatory action is
separate and “apart from the delay causing the default itself.”
Superior Performers, 2020 WL 6060978, at *3 (citation omitted).
Therefore, this factor weighs in favor of setting aside the
default entry.
F. Availability of Sanctions Less Drastic

RSNA argues that sanctions less drastic than entry of
default are available. (RSNA’s Br. (Doc. 27) at 13.) This has
not been disputed by Plaintiff, (see Doc. 40 at 3), and “[a]s
such, the sixth factor weighs in favor of setting aside entry of
default.” Superior Performers, 2020 WL 6060978, at *3.
Iv. CONCLUSION
Finding that, on balance, the applicable factors weigh in
favor of setting aside the entry of default, IT IS HEREBY ORDERED
that the Motion to Set Aside Entry of Default, (Doc. 26), is
GRANTED .
IT IS FURTHER ORDERED that Defendant RSNA shall answer or
otherwise respond to the Complaint, (Doc. 1), within ten (10)
days of the entry of this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Defendant RSNA shall prepare to
immediately join in discovery consistent with the Scheduling
Order. (See Doc. 43 FT 4.)
This the 12th day of January, 2022.

*
Lb Ak L. Maher.
‘United States District Ju

=- 14 =-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253982. Public record. Not legal advice.