CHAMBERS v. BROWN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DUSTIN CHAMBERS, )

)

Plaintiff, )

)

v. ) 1:24CV562

)

MR. BROWN, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the Motion for Leave to

File out of Time (Docket Entry 23), in which “Defendants[] Lt.

Couzzi, Cpl. Kluk, and Sgt. Rodgers[] respectfully request that

this Court extend the time [for them] to file the[ir a]nswer,

attached [t]hereto as Exhibit 1” (id. at 3 (internal quotation

marks omitted) (referring to Docket Entry 23-1)). Because the

record establishes excusable neglect for the filing of that answer

out-of-time (and, alternatively, supports relief from any default),

the Court will grant the instant Motion, will order Defendants

Couzzi, Kluk, and Rodgers to file their proposed answer, and will

adopt a scheduling order for this case.

BACKGROUND

Plaintiff commenced this action by filing a Complaint (Docket

Entry 2) against six Defendants (see id. at 2-5)1 under 42 U.S.C.

1 Pin cites to the Complaint and the proposed answer refer to

page number(s) in the footer appended to those documents upon their

docketing in the CM/ECF system, not to any original pagination.

§ 1983 for alleged Eighth Amendment violations committed at the

Rockingham County Detention Center (see id. at 4, 6; see also

Docket Entry 1 (Declaration and Request to Proceed In Forma

Pauperis)).* At initial screening under 28 U.S.C. § 1915A(a) &

the undersigned Magistrate Judge “recommended that Plaintiff’s

individual capacity excessive force claims against Defendants

Couzzi, Kluk, and Rodgers and his individual capacity claim based

on lack of medical treatment against Defendant Jo be allowed to

proceed but that all other claims [in] the Complaint be dismissed

ee (Docket Entry 3 at 6 (all-caps font omitted); see also

id. (authorizing Plaintiff to proceed as a pauper) .) After the

Court (per United States District Judge Thomas D. Schroeder)

adopted that recommendation (see Docket Entry 5), the Clerk (on

October 3, 2024) issued Summonses for Defendants Couzzi, Rodgers,

Kluk, and Jo (addressed to them at the Rockingham County Detention

Center) (see Docket Entry 7; see also Text Order dated Sept. 23,

2024 (providing that “United States Marshals Service .. . shall

make service of process”)).

Defendant Jo (identifying herself therein by her full name of

Joanna Peach and thus hereinafter referred to as Defendant Peach)

subsequently answered. (See Docket Entry 14.) By letter dated

° Of note (for reasons evident in the Discussion section),

Plaintiff appended to the Complaint an order and recommendation

dated June 24, 2024, recommending dismissal of a prior action he

filed in this Court (with the same abbreviated caption but a

different case number). (See Docket Entry 2 at 20-21.)

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December 3, 2024, the Clerk advised Plaintiff that Defendants

Couzzi, Rodgers, and Kluk had not answered and requested that,

“[w]ithin 10 days of the receipt of th[at] letter, [Plaintiff]

please advise how [he] wish[ed] to proceed with this action as to

[those three] Defendants . . . .” (Docket Entry 17 at 1.) When

Plaintiff did not timely respond to that letter, the undersigned

Magistrate Judge issued a “direct[ive to counsel for Defendant

Peach], as an officer of the Court, [] to make a reasonable inquiry

with the Rockingham County Detention Center to determine if

Defendants [] Couzzi, [] Rodgers, and [] Kluk each received his

respective summons . . . .” (Text Order dated Dec. 20, 2024; see

also Docket Entries dated Dec. 3, 2024, to present (reflecting no

response by Plaintiff to Clerk’s letter).)

As described in that Text Order, filings by “the United States

Marshals Service (‘USMS’) confirmed that the[ USMS] had served

Defendants [] Couzzi, [] Rodgers, and [Peach], respectively, by

certified mail sent to them at the Rockingham County Detention

Center (their place of employment), with those mailings all signed

for by Cpl. H.D. Crowder on 10/25/2024” (Text Order dated Dec. 20,

2024 (referring to Docket Entries 9, 9-1, and 9-2)), as well as

that “the USMS served Defendant [] Kluk by certified mail sent to

him at the Rockingham County Detention Center (his place of

employment), with that mailing illegibly signed for by someone on

an unspecified date” (id. (referring to Docket Entry 10)). Based

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on those circumstances, “the Court deem[ed] it necessary to enlist

the assistance of [Defendant Peach’s counsel], given that . . .

[Defendant Peach] received a summons through the same person at the

same place of employment as Defendants [] Couzzi and [] Rodgers and

at the same place of employment as Defendant [] Kluk.” (Id.; see

also id. (noting that “[t]he Court bears an obligation to assist

Plaintiff (who proceeds pro se as a pauper) in obtaining service of

process on Defendants [] Couzzi, [] Rodgers, and [] Kluk” and

“need[s] to determine whether the Court should enter a default as

to said Defendants under Federal Rule of Civil Procedure 55(a)”).)

On January 15, 2025, Defendants Couzzi, Rodgers, and Kluk

(through counsel) filed and served on Plaintiff the instant Motion.

(See Docket Entry 23 at 3, 5; see also Docket Entry 22 (notice of

appearance by counsel for Defendants Couzzi, Rodgers, and Kluk);

Docket Entry 24 at 1 (“giv[ing] notice that [Defendant Peach’s

counsel] completed a reasonable inquiry with the Rockingham County

Detention Center” which led to filing of instant Motion).)

Plaintiff responded in opposition (see Docket Entry 25) and

Defendants Couzzi, Rodgers, and Kluk replied (see Docket Entry 27).

DISCUSSION

The instant Motion acknowledges that the Summons[es for

Defendants Couzzi, Rodgers, and Kluk] and [copies of the] Complaint

were delivered to the Rockingham County Detention Center on October

25, 2024.” (Docket Entry 23 at 1.) The Federal Rules of Civil

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Procedure (the “Rules”) permit service by “following state law for

serving a summons in an action brought in courts of general

jurisdiction in the state where the district court is located or

where service is made,” Fed. R. Civ. P. 4(e)(1), and North Carolina

law permits service via certified mail to a defendant’s place of

employment, see, e.g., Moore v. Cox, 341 F. Supp. 2d 570, 573

(M.D.N.C. 2004) (Tilley, C.J.). Moreover, if the certified mail

receipt “[i]s signed by a person other than the addressee, North

Carolina presumes ‘that the person who received the mail and signed

the receipt was an agent of the addressee authorized by appointment

or by law to be served or to accept service of process.’” Godfrey

v. Long, No. 5:10CT3105, 2012 WL 43593, at *5 (E.D.N.C. Jan. 9,

2012) (unpublished) (ellipsis omitted) (quoting N.C. Gen. Stat.

§ 1A-1, Rule 4(j2)(2)), aff’d, 472 F. App’x 174 (4th Cir. 2012);

see also Moore, 341 F. Supp. 2d at 573 (observing that “a person

authorized to receive mail is an authorized agent for purposes of

receiving service of process in North Carolina”).

Accordingly, it appears that the time for Defendants Couzzi,

Rodgers, and Kluk to answer began to run on October 25, 2024, and

expired 21 days later on November 15, 2024, see Fed. R. Civ. P.

12(a)(1)(A) (dictating that generally “[a] defendant must serve an

answer . . . within 21 days after being served with the summons and

complaint”). The instant Motion seeks relief from that deadline

under Rule 6(b). (See Docket Entry 23 at 1.)

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Excusable Neglect under Rule 6(b) (1)

“When an act may or must be done within a specified time, the

court may, for good cause, extend the time . . . on motion made

after the time has expired if the party failed to act because of

excusable neglect.” Fed. R. Civ. P. 6(b6)(1) (emphasis added).

Although this Rule nominally requires a finding of both “good

cause,” id., and “excusable neglect,” id., the United States Court

of Appeals for the Fourth Circuit effectively has collapsed those

requirements into a single inquiry in this context, see Lovelace v.

Lee, 472 F.3d 174, 203-04 (4th Cir. 2006) (“A district court has

discretion to grant an enlargement of time upon motion made after

the expiration of the specified period where the failure to act was

the result of excusable neglect. We find no abuse of discretion

here. The district court had a reasonable basis for finding good

cause (or excusable neglect) for [the defendant’s] delay... .”

(internal citation, ellipsis, and quotation marks omitted)). That

approach makes sense because, whereas courts have described the

“good cause” standard as “non-rigorous,” Ahanchian v. Xenon

Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010), “liberal,”

Coon v. Grenier, 867 F.2d 73, 76 (lst Cir. 1989), and “not... .

particularly demanding,” Stark-Romero v. Nat’l R.R. Passenger Co.,

275 F.R.D. 544, 547 (D.N.M. 2011), the Fourth Circuit has declared

that “‘[e]xcusable neglect’ is not easily demonstrated,” Thompson

v. E.T. DuPont de Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir.

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1996). With that declaration in mind, the Court must determine

whether the record establishes excusable neglect for the failure of

Defendants Couzzi, Rodgers, and Kluk to timely file their answer.

To aid courts in that task, the United States Supreme Court

has explained as follows:

[T]here is no indication that anything other than the

commonly accepted meaning of the phrase [“excusable

neglect”] was intended by its drafters. It is not

surprising, then, that in applying Rule 6(b), the Courts

of Appeals have generally recognized that “excusable

neglect” may extend to inadvertent delays. Although

inadvertence, ignorance of the [Rlules, or mistakes

construing the [Rlules do not usually constitute

“excusable” neglect, it is clear that “excusable neglect”

under Rule 6(b) is a somewhat elastic concept and is not

limited strictly to omissions caused by circumstances

beyond the control of the movant.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.

380, 391-92 (1993) (emphasis added) (internal footnotes and some

quotation marks omitted). In other words, this inquiry “is at

bottom an equitable one, taking account of all relevant

circumstances surrounding the party’s omission.” Id. at 395.

“These include . . . [1] the danger of prejudice to the [opposing

party], [2] the length of the delay and its potential impact on

judicial proceedings, [3] the reason for the delay, including

whether it was within the reasonable control of the movant, and

[4] whether the movant acted in good faith.” Id. (emphasis added).

The first Pioneer factor, i.e., “prejudice to [Plaintiff],”

id., strongly favors relief for Defendants Couzzi, Rodgers, and

Kluk. In that regard, the Fourth Circuit has ruled both that

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“delay in and of itself does not constitute prejudice to the

opposing party,” Colleton Preparatory Acad., Inc. v. Hoover

Universal, Inc., 616 F.3d 413, 418 (4th Cir. 2010), and that no

prejudice accrues from “los[ing] a quick [default-based] victory,”

Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843

F.2d 808, 812 (4th Cir. 1988). In light of that precedent,

Plaintiff has not identified any cognizable prejudice; instead, he

merely has asserted in conclusory fashion that “[Defendants]

Couzzi, [] Kluk and [] Rodgers had more than anough [sic] time to

respond to the[ir S]ummons[es] in a timly [sic] matter [sic] [but]

they failed to do so.” (Docket Entry 25 at 1; see also id.

(“ask[ing] the [C]ourt[] to [e]nter a default on [] Defendants []

Couzzi, [] Kluk and [] Rodgers”) .)

The second Pioneer factor, i.e., “the length of the delay and

its potential impact on judicial proceedings,” Pioneer, 507 U.S. at

395, weighs neither for nor against a finding of excusable neglect.

As previously documented, Defendants Couzzi, Rodgers, and Kluk

filed the instant Motion (and proposed answer) two months after

their deadline to answer. In applying Pioneer, one court has

deemed a delay of just under two months “minimal,” Iannace v.

Rogers, Civ. No. 03-5973, 2006 WL 2038492, at *3 (D.N.J. July 18,

2006) (unpublished), and another court has described a delay of “a

little over two months” as “a short period,” Moczek v. Secretary of

Health & Hum. Servs., 776 F. App’x 671, 674 (Fed. Cir. 2019).

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Furthermore, this Court has not set a date for trial or any

hearings in this case (see Docket Entries dated July 2, 2024, to

present) and therefore the short (if slightly more than minimal)

delay by Defendants Couzzi, Rodgers, and Kluk in answering has not

materially impacted (or threatened to impact) judicial proceedings

in this nascent case (but, at most, has briefly delayed adoption of

a scheduling order). Given those considerations, the Court will

follow the lead of “courts [that] assess this factor as neutral

where the past delay was not minimal but the possibility of future

delay to the pre-trial schedule is minimal because of a distant or

non-existent trial date.” Anderson v. San Bernardino Sheriff’s

Dep’t, No. 5:22CV1586, 2024 WL 2750965, at *4 (C.D. Cal. Mar. 29,

2024) (unpublished) (emphasis added) (internal quotation marks

omitted), recommendation adopted, 2024 WL 2750934 (C.D. Cal. May

29, 2024) (unpublished).

As to the third Pioneer factor, i.e., “the reason for the

delay,” Pioneer, 507 U.S. at 395, the instant Motion states:

1) “[u]pon receipt of the Summons[es] and Complaint by the

[Rockingham County] Detention Center, the matter was referred to

jail administrator Major Wendell Brown” (Docket Entry 23 at 2);

2) “included with the . . . [copies of the] Complaint was a

copy of this Court’s [o]rder and [r]ecommendation . . . dated June

24, 2024, [recommending] dismiss[al of Plaintiff’s c]omplaint [in

a prior case]” (id.);

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3) “Major Brown erroneously believed that the [recommendation]

of June 24, 2024, applied to the Summons[es] and Complaint included

in the packet[s for Defendants Couzzi, Rodgers, and Kluk] rather

than the [prior clomplaint” (id.; see also id. (“Major Brown

believed .. . this matter was being dismissed... .”)); and

4) “falls a result of th[at] incorrect belief, Major Brown

believed no further action was required and did not notify the

County Attorney or other legal counsel” (id.; see also id. (stating

that Rockingham County Attorney only learned of this action on

January 14, 2025, following inquiry made by Defendant Peach’s

counsel in compliance with Text Order dated December 20, 2024)).°

Those representations indicate that Defendants Couzzi,

Rodgers, and Kluk did not receive timely notice of their Summonses

due to errant handling of the certified mailings delivered to the

Rockingham County Detention Center. (See id. at 3 (arguing that

“actions of other members of the Rockingham County Sheriff’s Office

are responsible for the delay in responding”) And both “the

failure of [litigants] to receive notice ... [and] misrouted mail

. . . fall within the ambit of reasons which a [d]istrict [c]ourt,

in its discretion, may reasonably accept under ‘excusable

> Plaintiff’s opposition to the instant Motion does not

challenge or otherwise call into question the above account

(tendered by an officer of the Court bound by a duty of candor, see

United States v. Shaffer Equip. Co., 11 F.3d 450, 457 (Ath Cir.

1993) (“[Wle are confident that a general duty of candor to the

court exists in connection with an attorney’s role as an officer of

the court.”)). (See Docket Entry 25.)

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neglect.’” In re Cendant Corp. Prides Litig., 233 F.3d 188, 197

(3d Cir. 2000); see also In re Enron Corp., No. 01-16034, 2003 WL

1889042, at *4 (Bankr. S.D.N.Y. Apr. 8, 2003) (unpublished) (“The

‘reason for the delay’ factor incorporates the Pioneer Court’s

concern with sufficient notice.”). At a minimum, “[t]he record

contains no evidence that [anyone at the Rockingham County

Detention Center] informed [Defendants Couzzi, Rodgers, and Kluk]

of the [Summonses] . . . .” In re Pilgrim’s Pride Corp., No. 08-

45664, 2011 WL 576070, at *3 (Bankr. N.D. Tex. Feb. 9, 2011)

(unpublished). Absent such evidence, the Court could not conclude

that the reason for their delay in answering “was within the[ir]

reasonable control,” Pioneer, 507 U.S. at 395. Conversely,

however, the record (including the instant Motion) does not explain

how Defendant Peach (unlike Defendants Couzzi, Rodgers, and Kluk)

managed to timely answer, despite the fact that her Summons (like

their Summonses) also arrived at the Rockingham County Detention

Center on October 25, 2024, where (like the Summonses for

Defendants Couzzi and Rodgers) Defendant Peach’s Summons initially

landed in the hands of Corporal Crowder. Put another way, the

record does not resolve the question of why Major Brown’s reported

intercession kept Defendants Couzzi, Rodgers, and Kluk from timely

answering, but did not stop Defendant Peach from timely answering.

Under these circumstances, with ambiguities in the record cutting

both ways, the Court treats the third Pioneer factor as neutral.

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The fourth Pioneer factor, i.e., “whether [Defendants Couzzi,

Rodgers, and Kluk] acted in good faith,” id., favors a finding of

excusable neglect, “[b]ecause there is no evidence that the delay

in filing was to gain a tactical advantage[ and thus] the Court

presumes good faith,” Global Ass’n of Risk Pros., Inc. v. Global

Inst. of Fin. Pros., No. 21CV5207, 2023 WL 171891, at *2 (S.D.N.Y.

Jan. 12, 2023) (unpublished); see also Bateman v. United States

Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 2000) (finding “no

evidence that [the plaintiff] acted with anything less than good

faith,” even where “reason for the delay [in filing wals,

admittedly, weak,” as delay “resulted from negligence and

carelessness, not from deviousness or willfulness”). Indeed,

“there is no contention [by Plaintiff] that [Defendants Couzzi,

Rodgers, and Kluk] halve] not acted in good faith,” In re Northwest

Airlines Corp., No. 05-17930, 2010 WL 502837, at *3 (Bankr.

S.D.N.Y. Feb. 9, 2010) (unpublished). (See Docket Entry 25.)

On balance, the Pioneer factors support a finding of excusable

neglect for the failure of Defendants Couzzi, Rodgers, and Kluk to

file a timely answer. The first and fourth factors favor

Defendants Couzzi, Rodgers, and Kluk, while the second and third

factors rest at equipoise. Although the third factor carries the

most significance, see Thompson, 76 F.3d at 534, the Supreme

Court’s holding in Pioneer makes clear that, even if a party does

not show an acceptable reason for missing a deadline, a court may

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find excusable neglect when the record lacks “any evidence of

prejudice to [the opposing party] or to judicial administration in

th[e] case, or any indication at all of bad faith,” Pioneer, 507

U.S. at 398. Because this case presents such circumstances, the

Court finds excusable neglect warranting allowance of a late

answer. See, e.g., Tolliver v. Liberty Mut. Fire Ins. Co., No.

2:06CV904, 2008 WL 545018, at *1 (S.D. Ohio Feb. 25, 2008)

(unpublished) (“[The reason for the defendant’s failure to timely

answer] can only be described as carelessness. On the other hand,

it does not appear that the delay in tendering an answer will

prejudice either the plaintiff or the [c]ourt in its ability to

resolve this litigation in a timely fashion. The delay was

slightly more than two months, and there is no evidence that [the

defendant] did not act in good faith. Under these circumstances,

and given the flexible nature of the ‘excusable neglect’ concept

articulated in Pioneer, the [c]ourt concludes that it would be

appropriate to permit a late answer to be filed. That is

especially true in light of the strong preference for trials on the

merits . . . .” (some internal quotation marks omitted)).

Relief from Default under Rule 55(c)

Alternatively, had the Court not found excusable neglect under

Rule 6(b)(1) to allow Defendants Couzzi, Rodgers, and Kluk to file

their answer out-of-time (such that entry of default under Rule

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55(a) would follow),* the ultimate outcome would not change. More

specifically, “even if the [C]ourt were inclined to enter default

against [Defendants Couzzi, Rodgers, and Kluk] for filing [their]

answer [two months] late, the [C]ourt would find that default

should be set aside for good cause shown. See Fed. R. Civ. P.

55(c).” Mook v. Gertsema, Civ. No. 07-2152, 2008 WL 2859169, at *2

(D. Kan. July 23, 2008) (unpublished); accord, e.g., Mollohan v.

Price, No. 2:13CV32251, 2014 WL 4181476, at *4 (S.D.W. Va. Aug. 20,

2014) (unpublished); see also Fed. R. Civ. P. 55(c) (“The court may

set aside an entry of default for good cause ... .”); Sony Corp.

v. Elm State Elecs., Inc., 800 F.2d 317, 319 (2d Cir. 1986)

(“Notwithstanding the nominal requirement that the non-answering

defendant demonstrate excusable neglect in order to prevail ona

Rule 6(6) motion, district courts regularly exercise their

discretion to deny technically valid motions for default.”).

In regard to the good cause inguiry under Rule 55(c), the

Fourth Circuit has held that,

[w]hen deciding whether to set aside an entry of default,

a district court should consider [1] whether the

[defendant] has a meritorious defense, [2] whether [the

defendant] act[ed] with reasonable promptness, [3] the

personal responsibility of the [defendant], [4] the

prejudice to the [plaintiff], [5] whether there is a

history of dilatory action, and [6] the availability of

sanctions less drastic.

“ “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).

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Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th

Cir. 2006) (emphasis added). The Court “must [] liberally

construe[ those factors] to provide relief from the onerous

consequences of defaults,” Lolatchy v. Arthur Murray, Inc., 816

F.2d 951, 954 (4th Cir. 1987) (internal quotation marks omitted),

because the Fourth Circuit “ha[s] 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, 616 F.3d at 417.

Starting with the first Payne factor, “[a] meritorious defense

requires a proffer of evidence which would permit a finding for the

defaulting party . .. .” Augusta Fiberglass, 843 F.2d at 812.

The defaulting party “is not required to establish a meritorious

defense by a preponderance of the evidence[;] . . . the mere

assertion of facts constituting a meritorious defense in af[

pleading] - . . Ssatisfie[s] the requirement of showing a

meritorious defense . . . .” Central Operating Co. v. Utility

Workers of Am., AFL-CIO, 491 F.2d 245, 252 n.8 (4th Cir. 1974); see

also Herlong v. Ludwig, No. 6:09CV2823, 2010 WL 1433454, at *3

(D.S.C. Apr. 8, 2010) (unpublished) (“Alleging a meritorious

defense in a responsive pleading is sufficient to present a

meritorious defense.”). In their proposed answer, Defendants

Couzzi, Rodgers, and Kluk allege, inter alia, that they never

“harmed [Plaintiff] in any way” (Docket Entry 23-1 at 3), that they

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never “deprived Plaintiff of any right under the United States

Constitution” (id. at 5), that they “acted at all times in good

faith” (id.), and that “their actions were lawful and justified in

an attempt to help an inmate suffering a seizure” (id.).

“Because[,] at this early stage of the proceeding, [Defendants

Couzzi, Rodgers, and Kluk] ha[ve] sufficiently alleged facts that

could constitute a meritorious defense and there is a strong

preference to dispose of cases on the merits, this factor weighs in

favor of setting aside [any] entry of default.” MacRegen, Inc. v.

Burnette, No. 1:19CV591, 2020 WL 2097631, at *2 (M.D.N.C. May 1,

2020) (unpublished) (Tilley, S.J.).

In assessing the second Payne factor, the question of

“[wlhether a party has taken reasonably prompt action, of course,

must be gauged in light of the facts and circumstances of each

occasion... .”% United States v. Moradi, 673 F.2d 725, 727 (Ath

Cir. 1982) (internal quotation marks omitted). As documented

above, Defendants Couzzi, Rodgers, and Kluk sought leave to file

their answer two months after the expiration of their answer

deadline without Plaintiff requesting entry of a default in the

interim. Neighboring courts have weighted this factor toward a

defendant who delayed acting for a similar period after entry of a

default. See 5Star Life Ins. Co. v. Shoemaker Zenner, No.

2:19CV2593, 2020 WL 967593, at *2 (D.S.C. Feb. 28, 2020)

(unpublished) (“The [c]lourt finds [the defendant] acted with

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reasonable promptness. ... [W]ithin two months of the entry of

default, [the defendant] moved to set aside the default.”); Vick v.

Wong, 263 F.R.D. 325, 330 (E.D. Va. 2009) (finding that reasonable

promptness factor favored setting aside default even though the

defendant did not act for more than two months after entry of

default). Consistent with that view, this Court concludes that the

second Payne factor supports relief from any default here.

As to the third Payne factor, i.e., the defendant’s “personal

responsibility,” Payne, 439 F.3d at 204, for reasons discussed in

the prior subsection, the record does not permit a finding that the

failure of Defendants Couzzi, Rodgers, and Kluk to timely answer

“was within the[ir] reasonable control,” Pioneer, 507 U.S. at 395.

As a result, the third Payne factor tilts toward setting aside any

default entered. See, e.g., Nelson v. Shrewsbury, No. 2:23CV543,

2023 WL 7311203, at *3 (S.D.W. Va. Nov. 6, 2023) (unpublished)

(“[The plaintiff] has not provided any evidence to suggest that

[the d]Jefendant [] bears any personal responsibility for his

failure to respond by the deadline. I, therefore, find that this

[Payne] factor weighs in favor of [the d]lefendant.”); Swarey v.

Desert Cap. REIT, Inc., Civ. Action No. 11-3615, 2012 WL 4208057,

at *5 (D. Md. Sep. 20, 2012) (unpublished) (holding that third

Payne factor favored relief from default where “[the p]laintiffs

d[id] not offer any evidence .. . that the [| djefendants .. .

[we]re personally culpable for the delayed response”).

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The fourth Payne factor, i.e., “prejudice to [Plaintiff],”

Payne, 439 F.3d at 204, likewise weighs against maintenance of any

default. The Fourth Circuit has stated that, “[i]n 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, 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. Rather, the Fourth Circuit has

described relevant prejudice as “missing witness[es] . . . whose

testimony was made unavailable by the delay; . . . dead

witness[es]; . . . records made unavailable by the delay[;] .. .

[or] evidence for the plaintiff which could have been presented

earlier, the presentation of which was prevented by the delay.”

Lolatchy, 816 F.2d at 952-53. Plaintiff has not identified any

such prejudice here. (See Docket Entry 25.) Accordingly, this

factor favors setting aside any default.

Turning to the fifth Payne factor, “[b]ecause of the early

stage[] of this case .. ., there is [] no indication of a history

of dilatory action [by Defendants Couzzi, Rodgers, and Kluk] in

this case.” South Carolina CVS Pharmacy, L.L.C. v. SCP 2001A-CSF-

72 LLC, C/A No. 0:24-524, 2024 WL 3826582, at *4 n.6 (D.S.C. June

27, 2024) (unpublished), recommendation adopted, 2025 WL 540470

° Further, as previously detailed, the untimeliness of the

proposed answer from Defendants Couzzi, Rodgers, and Kluk has not

materially delayed the proceedings in this case.

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(D.S.C. Feb. 18, 2025) (unpublished). The Court’s research also

revealed no prior litigation involving Defendant Couzzi (and thus

no prior dilatory litigation conduct by him in other cases). A

different plaintiff detained in the Rockingham County Detention

Center has instituted another Section 1983 action against

Defendants Rodgers and Kluk (among others). See Compl., Williamson

v. Brown, No. 1:24CV431, Docket Entry 2 (M.D.N.C. May 21, 2024).

Filings by the USMS in that case reflect that Rockingham County

Clerk of Court Abner Bullins received the summonses issued for

Defendants Rodgers and Kluk (addressed to the Rockingham County

Sheriff’s Office). See Process Receipt and Return, Williamson v.

Brown, No. 1:24CV431, Docket Entry 18 at 7 (M.D.N.C. Nov. 26, 2024)

(Defendant Kluk); Process Receipt and Return, Williamson v. Brown,

No. 1:24CV431, Docket Entry 18 at 11 (M.D.N.C. Nov. 26, 2024)

(Defendant Rodgers). Defendants Rodgers and Kluk have not answered

(or otherwise responded) in that action, see Docket, Williamson v.

Brown, No. 1:24CV431 (M.D.N.C.); however, given the absence of any

sign that they received notice of those summonses, the Court

declines to infer that they have acted in a dilatory manner in that

case.® This factor therefore supports relief from any default.

° A third plaintiff detained in the Rockingham County

Detention Center recently named Defendant Kluk (along with five

others) as a defendant in yet another Section 1983 case, see

Compl., McMaster v. Page, No. 1:24CV631, Docket Entry 3 (M.D.N.C.

July 26, 2024), but that case has not survived initial screening,

see McMaster v. Page, No. 1:24CV631 (M.D.N.C. Nov. 25, 2024) (slip

op.) (Peake, M.J.) (recommending dismissal without prejudice).

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Finally, as to the sixth Payne factor, i.e., “the availability

of sanctions less drastic,” Payne, 439 F.3d at 204-05, “[n]leither

party has suggested alternative sanctions,” Pinpoint IT Servs.,

L.L.C. v. Atlas IT Export Corp., 812 F. Supp. 2d 710, 727 (E.D. Va.

2011). (See Docket Entries 23, 25, 27.) Nevertheless, “the Court

[can] certainly consider any suggestions that are brought before it

. . . Therefore, this factor counsels in favor of setting aside

default.” Pinpoint, 812 F. Supp. 2d at 728; accord Lindemann-Moses

v. Jackmon, 644 F. Supp. 3d 163, 179 (M.D.N.C. 2022) (Schroeder,

C.J.); Burden v. Covington, No. 1:18CV767, 2021 WL 5868491, at *2

(M.D.N.C. Oct. 19, 2021) (unpublished) (Webster, M.J.),

recommendation adopted, 2021 WL 5867561 (M.D.N.C. Dec. 10, 2021)

(unpublished) (Osteen, J.); see also RE/MAX, LLC v. McCroskey, Civ.

No. 12-3290, 2013 WL 3364531, at *2 (D. Md. July 3, 2013)

(unpublished) (“[L]ess drastic sanctions than default will be

available ... if [the defendant] continues untimely responses.”).

To summarize, all six Payne factors support a finding of good

cause to set aside any default by Defendants Couzzi, Rodgers, and

Kluk. The Court thus will not enter a default, but instead

(A) will require Defendants Couzzi, Rodgers, and Kluk to promptly

file their proposed answer and (B) will adopt a scheduling order so

that this case can now move swiftly to a merits-based resolution,

see M.D.N.C. LR 16.1(a) (authorizing entry of scheduling order

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without initial pretrial conference in “[c]ases brought by pro se

plaintiffs” (italics omitted)).

CONCLUSION

The record establishes excusable neglect for the failure of

Defendants Couzzi, Rodgers, and Kluk to file a timely answer. In

the alternative, good cause exists to set aside any default.

IT IS THEREFORE ORDERED that the instant Motion (Docket Entry

23) is GRANTED.

IT IS FURTHER ORDERED that Defendants Couzzi, Rodgers, and

Kluk shall file their answer in the form of Exhibit 1 (Docket Entry

23-1) by March 7, 2025.

IT IS FURTHER ORDERED that this scheduling order shall govern

the further proceedings in this case:

1) the Standard case management track established by Local

Rule 26.1(a)(1) shall apply, with the lone exception that the Court

adopts a six-month (rather than a four-month) discovery period;

2) the parties shall file any motions seeking leave to amend

pleadings or to add parties by May 8, 2025;

3) the parties shall serve any expert disclosures required by

Rule 26(a)(2)(B) and (C) by July 8, 2025;

4) the parties shall serve any rebuttal expert reports (as

contemplated by Rule 26(a)(2)(D)(ii)) by August 8, 2025;

5) the parties shall complete all discovery by September 8,

2025; and

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6) consistent with Local Rule 16.4(b), the parties need not

conduct mediation.

IT IS FURTHER ORDERED that, to assist Plaintiff in meeting his

obligation to litigate this case, the Clerk shall send Plaintiff a

copy of the Civil Rules portion of the Local Rules, as well as

Federal Rules of Civil Procedure 5, 5.2, 6, 7, 10, 11, 15, 16, 26,

28, 29, 30, 31, 33, 34, 36, 45, 56, and 72.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 28, 2025

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