The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GEORGE STEPHENS, )
)
Plaintiff, )
)
v. ) 1:21CV54
)
LIEUTENANT BULLARD, et al., )
)
Defendants. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court upon Plaintiff George Stephen’s Motion for
Default Judgment against Defendants Lieutenant Bullard (“Lt. Bullard”), Officer Kerstetter1,
and Officer Moreno. (Docket Entry 13; see also Docket Entry 12.)2 Also before the Court is
Defendant Kerstetter’s Motion to Set Aside Entry of Default. (Docket Entry 15.) These
matters are ripe for disposition. For the following reasons, it is recommended that the Court
grant Defendant Kerstetter’s motion to set aside entry of default and deny Plaintiff’s motions
for default judgment.
I. BACKGROUND
Plaintiff, a pro se prisoner, filed this action alleging he was maliciously beaten by Officers
Kerstetter and Moreno in June 2019 while in his cell at the Scotland Correctional Institution
1 Defendant’s last name appears to be spelled incorrectly in Plaintiff’s Complaint. (See
Complaint, Docket Entry 2; Answer, Docket Entry 14.)
2 Plaintiff initially filed a document entitled “Motion Execute Judgment by Default” essentially
seeking default judgment against Defendants. (See Docket Entry 12.) The Court will consider this
motion in conjunction with his Motion for Default Judgment.
(“Scotland”). (See generally Complaint, Docket Entry 2.) Plaintiff alleges that Lt. Bullard
ordered the attack after Plaintiff had been accused of indecent exposure to another officer.
(See id. at 15-16.)3 Plaintiff states that he suffered multiple physical injuries as well as anxiety
from the incident. (Id. at 5.) He seeks monetary damages from Defendants. (Id.)
Since the issuance of the summonses, the U.S. Marshal filed Returns indicating that
Defendants had been served. (Docket Entries 6-8.) After no answer or responsive pleading
was filed, Plaintiff moved for entry of default against Defendants. (Docket Entry 10.)4
Thereafter, the Clerk, having concluded that Defendants were served the summons and
complaint on February 26, 2021, and neither had filed an answer nor responsive pleading,
entered default against Defendants pursuant to Federal Rule of Civil Procedure 55(a). (Docket
Entry 11.) Plaintiff then moved for default judgment against Defendants. (Docket Entries
12, 13.) In response, Officer Kertsetter filed a motion to set aside entry of default along with
his answer to the Complaint. (Docket Entries 14, 15.) Plaintiff did not respond to the motion.
II. DISCUSSION
A. Officer Kertsetter’s Motion to Set Aside Entry of Default
At the outset, the undersigned notes that Plaintiff has failed to respond to Officer
Kerstetter’s motion to set aside entry of default. Under the Local Rules of the Middle District
of North Carolina, where a party fails to file a timely response to a motion, the motion will be
“considered and decided as an uncontested motion, and ordinarily will be granted without
3 All citations in this recommendation refer to the page numbers at the bottom right-hand
corner of the documents as they appear in the Court’s CM/ECF system.
4 Because default had not yet been entered in the case, Plaintiff’s motion was treated as a
motion for entry of default.
further notice.” Local Rule 7.3(k); see also Kinetic Concepts, Inc. v. ConvaTec Inc., No. 1:08CV918,
2010 WL 1667285, at *6-8 (M.D.N.C. Apr. 23, 2010) (unpublished) (analyzing the Court’s
Local Rules 7.3(f), 7.2(a), and 7.3(k) and discussing authority supporting proposition that
failing to respond to an argument amounts to concession). Because Plaintiff failed to file a
timely response, Officer Kerstetter’s motion could be granted as a matter of course pursuant
to Local Rule 7.3(k). Plaintiff’s status as a pro se litigant does not excuse his inaction. Even
though the motion could be granted on this ground alone, the Court will nevertheless consider
the merits of Officer Kerstetter’s motion.
Pursuant to the Federal Rules of Civil Procedure, “[t]he Court may set aside an entry of
default for good cause[.]” Fed. R. Civ. P. 55(c). The Fourth Circuit has held that certain factors
must be considered to determine if there is “good cause” to set aside an entry of default: (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). “Any
doubts 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) (citation omitted). Resolution of motions made under Rules 55(c) “is a matter which
lies largely within the discretion of the trial judge[.]” Consol. Masonry & Fireproofing, Inc. v.
Wagman Const. Corp., 383 F.2d 249, 251 (4th Cir. 1967).
Considering the factors in Payne, the Court concludes that Officer Kerstetter’s motion
should be granted. Defendant Kerstetter argues that a meritorious defense is present because
while Plaintiff claims he was beaten, the incident report includes statements from several
officers that Plaintiff was not beaten. (See Docket Entry 16 at 4.) The incident report is not
part of the Court’s record at this juncture; thus, Defendant’s argument is tenuous at best.5
Nevertheless, the Court “recognizes the general policy of deciding cases on their
merits.” Rasmussen v. Am. Nat. Red Cross, 155 F.R.D. 549, 552 (S.D.W. Va. 1994). Moreover,
counsel for Defendant Kerstetter represents that Defendant was unaware that no action
regarding this civil suit had been taken on his behalf. The delay here stems from
miscommunications between Scotland and the North Carolina Department of Public Safety’s
General Counsel’s Office. (See Docket Entry 16 at 2, 4.) In addition, Defendant Kerstetter
acted with reasonable promptness in filing the pending motion after receiving notice of the
entry of default. Also, Plaintiff, who has not responded to this motion, would not be
prejudiced by setting aside entry of default in this action. Payne, 439 F.3d at 205. Lastly, there
is no history of dilatory conduct on the part of Defendant Kerstetter, and less drastic sanctions
would be available if such were requested and warranted. Thus, for good cause shown, and
because the relevant factors weigh in favor of setting aside entry of default, Defendant
Kerstetter’s motion should be granted.
B. Plaintiff’s Motions for Default Judgment
Plaintiff has filed motions seeking default judgment against Defendants, and relief as set
forth in the Complaint. (Docket Entry 13; see also Docket Entry 12.) At the outset, because
the Court recommends that entry of default against Defendant Kerstetter should be set aside
5 The undersigned notes that Defendant Kerstetter’s Answer generally denies Plaintiff’s
allegations. (See Docket Entry 14.)
in this matter, Plaintiff’s motion should be denied as to said Defendant. Plaintiff’s motion
should also be denied as to Defendants Lt. Bullard and Officer Moreno for the reasons that
follow.
First, in light of the recommendation to set aside entry of default against Defendant
Kerstetter and to allow this matter to proceed, an entry of default judgment against Lt. Bullard
and Officer Moreno would be premature. See Richardson v. Bostick, No. 5:11-CT-3045-FL, 2013
WL 3166398, at *5 (E.D.N.C. June 20, 2013) (unpublished) (quotations and citation omitted)
(“The court concludes that entry of default judgment against the defaulting defendants at this
point in the proceedings would present the risk of inconsistent judgments Frow [v. De La
Vega, 82 U.S. (15 Wall.) 552, 21 L.Ed. 60 (1872)] sought to avoid and would therefore be
premature before the liability of the non-defaulting defendants has been determined.”); In re
Moss, No. 03-12672C-7G, 2005 WL 1288134, at *1 (Bankr. M.D.N.C. May 16, 2005)
(unpublished) (“When parties are jointly liable, judgment ordinarily should not be entered
against one defendant while the liability of the other defendants remains unresolved.”).
Second, counsel for Defendant Kerstetter represents that Lt. Bullard died in November
2021. (See Docket Entry 16 at 2.) Although no formal suggestion of death has been filed in
the record triggering the time to seek substitution of parties, see Fed. R. Civ. P. 25, counsel’s
statement raises concerns regarding the status of this matter against Lt. Bullard. See State Farm
Life Ins. Co. v. Eckert, No. CV DKC 18-3078, 2019 WL 4060015, at *2 (D. Md. Aug. 28, 2019)
(unpublished) (“Plaintiff’s Statement regarding [the death of Defendant] complicates the status
of this case and requires the court to consider the possible substitution of the estate of [the
deceased].”).
Third, as the allegations against all Defendants are closely interrelated, both Officer
Moreno and Lt. Bullard may have similar defenses as Defendant Kerstetter such as qualified
immunity and governmental immunity. “Such defenses, if successful, would inure to the
benefit of the defaulting defendants.” Richardson, 2013 WL 3166398, at *4. See also Lewis v.
Jordon, No. 1:09CV21, 2011 WL 13239040, at *2 (M.D.N.C. Apr. 6, 2011) (unpublished)
(“Where liability is joint and several or closely interrelated and a defending party establishes
that a plaintiff has no cause of action or present right of recovery, a defaulted defendant
benefits from this showing.”) (citation omitted). For all these reasons, Plaintiff’s motion
should also be denied at this time as to Defendants Lt. Bullard and Officer Moreno.
III. CONCLUSION
For the reasons stated herein, IT IS HEREBY RECOMMENDED that the Court
GRANT Defendant Kerstetter’s Motion to Set Aside Entry of Default (Docket Entry 15) and
that the Court’s Entry of Default (Docket Entry 11) be set aside as to Defendant Kerstetter.
IT IS FURTHER RECOMMENDED that Plaintiff’s Motions for Default
Judgment (Docket Entries 12, 13) be DENIED to the extent they seek
default judgment against Defendant Kerstetter and DENIED WITHOUT PREJUDICE
to the extent they seek default judgment against Officer Moreno and Lt. Bullard.
/s/ Joe L. Webster
United States Magistrate Judge
June 15, 2022
Durham, North Carolina