# Lowe v. Ballard

> District Court, S.D. West Virginia · May 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10730992

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** May 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

KEITH W.R. LOWE,

Plaintiff,

v. Case No. 2:19-cv-00504

EX-WARDEN DAVID BALLARD and
CAPTAIN BRIAN PENICK,

Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are Defendant David Ballard’s Motion to Set Aside
Entry of Default [ECF No. 48] and Plaintiff’s Renewed Motion for Entry of Default
Against Defendant Brian Penick [ECF No. 49]. This matter is assigned to the
undersigned United States District Judge, and it is referred to the Honorable Dwane
L. Tinsley, United States Magistrate Judge, for submission of proposed findings and
a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons
appearing to the court, the referral of these specific motions to Magistrate Judge
Tinsley are WITHDRAWN and the undersigned will proceed to rule on the pending
motions. However, this civil action will otherwise remain referred to Magistrate
Judge Tinsley for further proceedings.
I. Relevant Procedural History
This matter is proceeding against Defendants David Ballard (“Ballard”) and
Brian Penick (“Penick) on Plaintiff’s Second Amended Complaint [ECF No. 20], which
alleges that Penick used excessive force against Plaintiff at the Mount Olive
Correctional Complex (“MOCC”) on July 7, 2017. [ECF No. 20 at 2-4]. The Second
Amended Complaint further alleges a claim of supervisory liability against Ballard.

[ at 4]. Plaintiff seeks monetary damages along with declaratory and injunctive
relief. [ at 5].
Initially, summonses for both Defendants, who are former employees of the
West Virginia Division of Corrections and Rehabilitation (“WVDCR”) were
improperly served by the United States Marshals Service (“USMS”). [ECF No. 23].
Thus, on April 7, 2022, Magistrate Judge Tinsley entered an Order and Notice
directing that new summons be issued and that service of process be reattempted.

[ECF No. 27].
According to the docket sheet, Ballard was ultimately served by certified mail
on April 16, 2022. [ECF No. 34]. However, after Ballard failed to timely file an
answer or other responsive pleading, Magistrate Judge Tinsley granted Plaintiff’s
motion for entry of default and directed the Clerk to enter default, but not default
judgment, against Ballard. [ECF No. 44]. Defendant Penick, on the other hand, has

not been successfully served with process, as his most recent summons, addressed to
his last known home address, was returned unexecuted on June 15, 2022. [ECF No.
38]. Thus, default was not entered against Penick.
On October 25, 2022, Ballard, by counsel, moved to set aside the entry of
default under Rule 55(c) of the Federal Rules of Civil Procedure. [ECF No. 48]. On
October 27, 2022, Plaintiff filed his Renewed Motion for Entry of Default Against
Brian Penick. [ECF No. 49]. That same date, Ballard responded to the motion for
entry of default against Penick, asserting that the motion was inappropriate because
Penick had not been served with process and had no obligation to respond to the

complaint at that time. [ECF No. 50]. On November 17, 2022, Plaintiff responded to
Ballard’s motion to set aside entry of default indicating that he does not oppose the
motion. [ECF No. 50]. Both motions are ripe for resolution.
II. Discussion
A Ballard’s Motion to Set Aside Entry of Default.
At the discretion of the court, Rule 55(c) of the Federal Rules of Civil Procedure
permits the setting aside of an entry of default for good cause. Fed. R. Civ. P. 55(c).

Pursuant to , 155 F.R.D. 549 (S.D. W. Va.
1994), where default has been entered, but judgment has not, a motion to set aside
default is governed by a liberal good cause standard, rather than by the more
restrictive standard for relief from judgment. The Fourth Circuit has established
that district courts should consider the following factors in considering motions to set
aside default pursuant to Rule 55(c): “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.”
, 439 F.3d 198, 204-05 (4th Cir. 2006).
Our appellate court has further emphasized that default judgments are
disfavored and that claims should generally be resolved on their merits.
616 F.3d 413 (4th Cir.
2010) (“We have repeatedly expressed a strong preference that, as a general matter,
defaults be avoided and that claims and defenses be disposed of on their merits.”);

, 11 F.3d 450, 453 (4th Cir. 1993) (cautioning that
“dismissal without deciding the merits is the most extreme sanction, [and] a court
must ... exercise its inherent power to dismiss with restraint . . . .”). Consequently,
“‘an extensive line of decisions’ has held that Federal Rule of Civil Procedure 55(c)
must be ‘liberally construed in order to provide relief from the onerous consequences
of defaults and default judgments.’” , 816 F.2d 951,
954 (4th Cir. 1987) (quoting , 411 F.2d 123, 130 (4th Cir. 1969)). As

noted by Ballard’s motion, “[g]enerally a default should be set aside where the moving
party acts with reasonable promptness and alleges a meritorious defense.” (citing
, 383 F.2d 249,
251 (4th Cir. 1967)); , 673 F.2d 725, 727 (4th Cir.
1982).
This matter has been stalled by errors by both Ballard and officers of the court.

Ballard left employment at MOCC in or around January of 2020. Despite several
failed attempts by the USMS to personally serve Ballard, he was subsequently served
with process at his last known home address. [ECF No. 34]. Ballard’s motion to set
aside entry of default asserts that, in his experience as Warden at MOCC, responsive
pleadings to inmate complaints were frequently filed on his behalf by counsel
retained by MOCC’s insurance carrier without his specific knowledge and he
reasonably believed that, after sending the summons and Second Amended
Complaint to the West Virginia Department of Homeland Security on April 18, 2022,
a responsive pleading would be filed in the same manner herein. [ at 2-3].

However, no such responsive pleading was filed.
Upon being served with a notice of entry of default, Ballard took immediate
steps to employ counsel to represent his interests and filed his motion to set aside
entry of default, thus acting with reasonable promptness.
, No. 2:12-cv-04862, 2014 WL
1017200, *5 (S.D. W. Va. March 14, 2014) (Johnston, J.) (finding reasonable
promptness where a party moved to set aside the entry of default just over two weeks

after it was entered); , No. 3:13–cv-19629, 2013 WL
6048714, at *2 (S.D. W. Va. Nov. 13, 2013) (Chambers, C.J.) (finding reasonable
promptness in moving to set aside an entry for default that was entered two weeks
prior). Ballard’s motion further emphasizes that he has a potentially meritorious
defense to this action, including a right to qualified immunity, and there is no
evidence in the record establishing that Plaintiff will be unduly prejudiced if the

default is set aside. Moreover, Plaintiff does not oppose Ballard’s motion to set aside
default and, in fact, welcomes further proceedings on the meris of his claims.
For the reasons set forth in his unopposed motion, I FIND that Ballard can
satisfy the good cause standard and that Plaintiff will not be prejudiced by setting
aside the default entered against him herein. Accordingly, for good cause shown, it
is hereby ORDERED that Ballard’s unopposed Motion to Set Aside Default [ECF No.
48] is GRANTED, and the entry of default against Ballard is hereby set aside.
B. Plaintiff's Renewed Motion for Entry of Default Against Penick.
Rule 55(a) of the Federal Rules of Civil Procedure governs the entry of default.
The rule provides:
(a) Entering a Default. When 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). Plaintiff seeks entry of default against Penick because he has
not responded to the Second Amended Complaint. However, because Penick has not
presently been successfully served with process, he has no current obligation to
answer and is not in default. Thus, it is hereby ORDERED that Plaintiff's Renewed
Motion for Entry of Default Against Defendant Brian Penick [ECF No. 49] is
DENIED.
The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record and any unrepresented party.
ENTER: May 15, 2023

Me
ow STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10730992. Public record. Not legal advice.