Case: 17-11766 Date Filed: 02/05/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11766
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-03322-CC
FAITH SHERRARD,
Plaintiff - Appellant,
versus
MACY'S SYSTEM AND TECHNOLOGY INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 5, 2018)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 17-11766 Date Filed: 02/05/2018 Page: 2 of 9
Faith Sherrard, proceeding pro se, filed this employment discrimination suit
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., against
Macy’s System and Technology Inc. After Macy’s failed to respond to the
complaint, the clerk of court entered a default. Macy’s moved to set aside the
entry of default and the district court granted its motion, finding Macy’s had shown
good cause. Macy’s then filed a motion to compel arbitration, which the district
court also granted. This is Ms. Sherrard’s appeal from both adverse rulings. After
careful review of the record and the parties’ briefs, we affirm.
I
We review a ruling on a motion to set aside a default for an abuse of
discretion. See Compania Interamericana Export-Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996). “A district court
abuses its discretion if it applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous.” Surtain v.
Hamlin Terrace Found., 789 F.3d 1239, 1244 (11th Cir. 2015).
A district court may set aside an entry of default for good cause. See Fed. R.
Civ. P. 55(c). Macy’s, the defaulting party, bore the burden of establishing good
cause. See African Methodist Episcopal Church, Inc. v. Ward, 185 F.3d 1201,
2
Case: 17-11766 Date Filed: 02/05/2018 Page: 3 of 9
1202 (11th Cir. 1999). Good cause is a mutable and liberal standard, “not
susceptible to a precise formula.” Compania Interamericana, 88 F.3d at 951.
Although not “talismanic,” factors in the analysis include “whether the default was
culpable or willful, whether setting it aside would prejudice the adversary, and
whether the defaulting party presents a meritorious defense.” Id. Also instructive
may be “whether the defaulting party acted promptly to correct the default.” Id.
See also Perez v. Wells Fargo N.A., 774 F.3d 1329, 1337 n.7 (11th Cir. 2014)
(detailing factors instructive to the good cause analysis). A district court need
make no further findings if it determines that the default was willful. See
Compania Interamericana, 88 F.3d at 951–52. We generally view defaults with
disfavor due to our “strong policy of determining cases on their merits.” In re
Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003).
The district court did not abuse its discretion in granting Macy’s motion to
set aside the entry of default. Here, the record supports the district court’s
conclusion that Macy’s default was not willful.1
Due to an administrative oversight, Macy’s counsel did not become aware
that Macy’s had been served with the complaint until October 13, 2016. Before
1
On appeal, Ms. Sherrard contends that the district court should have analyzed both whether the
default was intentional and whether it was reckless. As noted, the district court is not required to
follow a precise formula. See Compania Interamericana, 88 F.3d at 951. Moreover, the district
court’s findings that “there is no indication that the failure to respond rose to the level of willful
conduct,” D.E. 9 at 6, encompasses both whether the party acted intentionally or with reckless
disregard. See Compania Interamericana, 88 F.3d at 951–52 (noting “a party willfully defaults
by displaying either an intentional or reckless disregard for the judicial proceedings”).
3
Case: 17-11766 Date Filed: 02/05/2018 Page: 4 of 9
that time, Macy’s outside counsel had been discussing a waiver of service with Ms.
Sherrard, further evidencing that counsel was unaware service was actually
effectuated on September 14, 2016. Ms. Sherrard does not contend that she told
Macy’s that service had already been effectuated. Also influential was that Macy’s
acted promptly to correct the default. Just three days after the clerk’s entry of
default, and one day after becoming aware that Macy’s had been served, it filed the
motion to set aside the entry of default. This quick response further supports a
finding of good cause. See Perez, 774 F.3d at 1337 n.7.
Ms. Sherrard argues that setting aside the default prejudices her because she
must respond to motions and do other litigation-related tasks. The inquiry,
however, is “whether prejudice results from the delay, not from having to continue
to litigate the case.” Connecticut State Dental Ass’n v. Anthem Health Plans, Inc.,
591 F.3d 1337, 1357 (11th Cir. 2009) (emphasis original). Moreover, there is no
prejudice in requiring a plaintiff to prove his or her case. See Gen. Tel. Corp. v.
Gen. Tel. Answering Serv., 277 F.2d 919, 921 (5th Cir. 1960) (“[T]he setting aside
of the default has done no harm to plaintiff except to require it to prove its case…
[It] will not prevent plaintiff’s making its proof and obtaining the decree to which
it is entitled.”); Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000) (“There is no
prejudice to the plaintiff where the setting aside of the default has done no harm to
plaintiff except to require it to prove its case.”) (quotation omitted). Ms.
4
Case: 17-11766 Date Filed: 02/05/2018 Page: 5 of 9
Sherrard’s increased costs in having to litigate are not sufficient to establish
prejudice because “[s]etting aside default will always increase litigation cost to the
plaintiff because the plaintiff will actually have to litigate the case.” United States
v. $22,050.00 U.S. Currency, 595 F.3d 318, 325 (6th Cir. 2010) (emphasis
original). There is no suggestion that the brief delay caused a loss of evidence,
created increased difficulties in discovery, or allowed for greater opportunities for
fraud and collusion. See Burrell v. Henderson, 434 F.3d 826, 835 (6th Cir. 2006)
(listing potential reasons a delay may qualify as sufficient prejudice under Rules
55(c) and 60(b)).
We note that the district court properly refused to rely upon Macy’s bald
assertions that it had a meritorious defense. Our good cause analysis, however,
does not require that each factor be satisfied. See Compania Interamericana, 88
F.3d at 951. Macy’s inadvertent mistake, prompt action to correct its default, and
the lack of prejudice are sufficient to show good cause. Based on the foregoing
factors, the district court did not abuse its discretion in determining that Macy’s
demonstrated good cause for vacating the clerk’s entry of default.
II
We review an order granting a motion to compel arbitration de novo. See In
re Checking Account Overdraft Litig., 754 F.3d 1290, 1293 (11th Cir. 2014). The
Federal Arbitration Act reflects a “liberal federal policy favoring arbitration,”
5
Case: 17-11766 Date Filed: 02/05/2018 Page: 6 of 9
AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339 (2011), and requires that
federal courts address questions of arbitrability “with a healthy regard” for that
policy. In re Checking Account Overdraft Litig., 754 F.3d at 1294. “In line with
these principles, courts must place arbitration agreements on an equal footing with
other contracts and enforce them according to their terms.” Concepcion, 563 U.S.
at 339 (citations omitted).
The record before the district court reflected that Ms. Sherrard received a
copy of Macy’s Solution InStore arbitration program, which included provisions
explaining how to opt out if desired. She admits that she did not opt out. So the
question before us is not whether the arbitration contract exists, but whether
Macy’s waived its right to enforce that contract.
“Despite the strong policy in favor of arbitration, a party may, by its
conduct, waive its right to arbitration.” Garcia v. Wachovia Corp., 699 F.3d 1273,
1277 (11th Cir. 2012) (citation and alteration omitted). See also In re Checking
Account Overdraft Litig., 754 F.3d at 1294 (“Arbitration should not be compelled
when the party who seeks to compel arbitration has waived that right.”). We apply
a two-part test to determine whether a party has waived its right to arbitration.
“First, we decide if, under the totality of the circumstances, the party has acted
inconsistently with the arbitration right.” Garcia, 699 F.3d at 1277 (quotation
omitted). This occurs when the party “substantially invokes the litigation
6
Case: 17-11766 Date Filed: 02/05/2018 Page: 7 of 9
machinery prior to demanding arbitration.” Id. “[S]econd, we look to see whether,
by doing so, that party has in some way prejudiced the other party.” Ivax Corp. v.
B. Braun of Am., Inc., 286 F.3d 1309, 1316 (11th Cir. 2002) (quotation omitted).
To determine prejudice, “we may consider the length of delay in demanding
arbitration and the expense incurred by that party from participating in the
litigation process.” S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507,
1514 (11th Cir. 1990).
Ms. Sherrard has failed to meet her heavy burden under the first prong of the
test. See Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1200 n.17 (11th Cir.
2011) (“Because federal policy strongly favors arbitration, the party who argues
waiver bears a heavy burden of proof under this two-part test.”) (quotation
omitted). Before moving to compel arbitration, Macy’s only substantive filing was
its motion to set aside the entry of default. 2
Although Macy’s participated in the litigation to a minor extent, this
participation was not the sort of substantial participation that could be considered
“inconsistent with an intent to arbitrate.” Ivax Corp., 286 F.3d at 1316. See also
2
Macy’s argues that Ms. Sherrard waived the argument that its motion to set aside the entry of
default constitutes a waiver of arbitration. We agree that Ms. Sherrard’s argument below was
that Macy’s alleged delayed response to her internal complaints with management was itself
inconsistent with arbitration. Because this conduct is not invocation of the “litigation
machinery,” the district court was correct to reject this argument. See Garcia, 699 F.3d at 1277.
The district court, however, discussed Macy’s motion to set aside the entry of default in its
analysis of the first prong. Due to the consideration below and because “the proper resolution is
beyond any doubt,” we exercise our discretion to consider this argument not raised below. See
Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1250 (11th Cir. 2012).
7
Case: 17-11766 Date Filed: 02/05/2018 Page: 8 of 9
Coca–Cola Bottling Co. of New York, Inc. v. Soft Drink and Brewery Workers
Union Local 812, 242 F.3d 52, 57–58 (2nd Cir. 2001) (“neither filing an answer
nor waiting four months to seek arbitration was sufficient to constitute a waiver”);
PNC Bank, N.A. v. Presbyterian Ret. Corp., No. 14-0461-WS, 2015 WL 1931395,
at *9, n. 14 (S.D. Ala. Apr. 28, 2015) (“PNC Bank merely participated in the
parties’ planning meeting, contributed to the Rule 26(f) report, filed a brief in
opposition to a motion for preliminary injunction, and agreed to a consent
resolution of said motion. … Such activities are insufficient to constitute
substantial invocation of litigation…”). In fact, moving to set aside the entry of the
default was the only procedure Macy’s could have used to permit it to seek
arbitration in this action. Other courts have noted that a party does not
substantially invoke the litigation machinery by “participating in litigation only to
avoid a default judgment.” United States v. Williams Bldg. Co., Inc., 137 F. Supp.
3d 6, 11–12 (D. Mass. 2015) (concluding litigation machinery had not been
invoked by answering complaint and filing counter-claims). We agree that Macy’s
participation in this litigation—only to avoid a default judgment—is not substantial
enough to determine that it “acted inconsistently with the arbitration right.”
Garcia, 699 F.3d at 1277. Because Ms. Sherrard has failed to meet her burden on
this first prong, she cannot show that Macy’s waived its right to arbitration.
8
Case: 17-11766 Date Filed: 02/05/2018 Page: 9 of 9
In her complaint and on appeal, Ms. Sherrard details what she contends is
illegal employment discrimination by Macy’s. The order compelling arbitration
and our ruling here express no opinion on the merit of those claims. Instead, we
decide only that, based on the parties’ agreement to arbitrate, Ms. Sherrard’s
claims must be heard through arbitration.
III
For the foregoing reasons, we affirm the district court’s decision to set aside
the entry of default and order compelling arbitration.
AFFIRMED.
9