Nicholson v. ANC Mission Hospital, Inc. et al

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:25-cv-00076-MR-WCM
CATHERINE NICHOLSON, )
)
Plaintiff, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
)
HCA HEALTHCARE, INC., JAMIE )
GOSNELL, JARED ALLEN, MEGAN )
TIPTON, HEATHER MCFARLAND )
THORP, KRISTEN TILGHMAN, )
CHRISTOPHER BERRY, KELLY )
BRADY, AMANDA CARVER, NINA )
MURCHISON, EVADORA BOYD, )
JENNIFER MCFADDEN, TERI CLARK, )
and CHARLENE ATKINSON, )
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on Defendants Jared Allen and
Megan Tipton’s Motion to Set Aside Clerk’s Entry of Default Against Jared
Allen and Megan Tipton [Doc. 104].
On March 12, 2025, the Plaintiff initiated this action by filing a
Complaint asserting employment discrimination claims against Defendant
HCA Healthcare, Inc. (“HCA”) and tort claims against Defendants Jared
Allen, Megan Tipton, and eleven other individual defendants. [Doc. 1]. On
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March 26, 2026, almost four months after the Plaintiff’s thrice-extended
deadline for service, the Plaintiff filed a Certificate of Service by Publication
asserting that Defendants Allen and Tipton had been served by March 21,
2026. [Doc. 86]. On June 2, 2026, the Court entered an Order granting in
part and denying in part motions to dismiss filed by HCA and the eleven other
individual defendants. [Doc. 87]. The Court’s Order noted that Defendants
Allen and Tipton had not yet made an appearance in this matter, and that no
motion concerning the sufficiency of the Plaintiff’s purported service by
publication or the lack of response by Defendants Allen and Tipton was then
before the Court. [Id. at 2]. On June 11, 2026, the Magistrate Judge directed
the Plaintiff to make appropriate filings with respect to Defendants Allen and
Tipton no later than June 24, 2026. [Doc. 88]. On June 24, 2026, the Plaintiff
moved for entry of default against Defendants Allen and Tipton. [Doc. 101].
On June 26, 2026, the Clerk entered default against Defendants Allen and
Tipton for failing to plead or otherwise defend against this action. [Doc. 102].
The Plaintiff has not, however, moved for entry of a default judgment against
Defendants Allen and Tipton.
On July 16, 2026, Defendants Allen and Tipton filed the instant motion
requesting that the Court set aside the default entered against them. [Doc.
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104]. On July 30, 2026, the Plaintiff filed a Response in opposition to the
instant motion. [Doc. 108].
Rule 55(c) of the Federal Rules of Civil Procedure provides that a
“court may set aside an entry of default for good cause.” Fed. R. Civ. P.
55(c). “When deciding whether to set aside an entry of default, a district
court should consider 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.” Payne ex rel.
Est. of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006). “Generally
a default should be set aside where the moving party acts with reasonable
promptness and alleges a meritorious defense.” Consol. Masonry &
Fireproofing, Inc. v. Wagman Const. Corp., 383 F.2d 249, 251 (4th Cir.
1967). Moreover, 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).
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Defendants Allen and Tipton have each filed declarations1 in support
of their motion that they have never been served a copy of the Plaintiff’s
Complaint or Amended Complaint, and that they did not learn about this
action until after the Clerk entered default against them. [Doc. 105-1 at ¶¶ 4-
5, 8; Doc. 105-2 at ¶¶ 4-5, 8]. Defendants Allen and Tipton further declare
that they live in Austin, Texas and Charleston, South Carolina, respectively,
that neither of them read or subscribe to the Johnson City Press wherein the
Plaintiff attempted to serve them by publication, and that neither of them saw
the Plaintiff’s attempt at such service by publication. [Doc. 105-1 at ¶¶ 3, 6;
Doc. 105-2 at ¶¶ 3, 6]. Finally, Defendants Allen and Tipton declare that they
have not tried to avoid being served, that they have now retained counsel,
that they did not engage in the conduct alleged by the Plaintiff, and that they
wish to defend themselves against the Plaintiff’s claims. [Doc. 105-1 at ¶¶ 7,
9; Doc. 105-2 at ¶¶ 7, 9].
As to the issue of a meritorious defense, Defendants Allen and Tipton
contend that they did not make any defamatory statements about the Plaintiff
or engage in a civil conspiracy against her, and that the other two claims
1 The Plaintiff contends that the Declarations filed by Defendants Allen and Tipton fail to
comply with the North Carolina’s requirements for a sworn affidavit. [Doc. 108 at 3-4].
The Declarations, however, state that they are made under penalty of perjury, in full
compliance with 28 U.S.C. § 1746. [Doc. 105-1 at 4; Doc. 105-2 at 4]. The Plaintiff’s
argument, therefore, is not well taken.
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brought against them have already been dismissed with respect to the
individual defendants who were properly served and filed motions to dismiss.
[Doc. 105 at 7-8]. Defendants Allen and Tipton further contend that, in light
of their meritorious defenses, they would be prejudiced if the entry of default
against them remains and they are not given the opportunity to defend
against the Plaintiff’s claims on the merits. [Id. at 7]. Finally, Defendants
Allen and Tipton contend that responsibility for their delay in appearing in this
matter rests with the Plaintiff’s failure to properly serve them, and that, upon
learning of the Plaintiff’s claims against them, they quickly retained counsel
and filed the instant motion. [Id. at 5-7]. Upon review of the record in this
matter and of Defendants Allen and Tipton’s Declarations and arguments,
the Court concludes that the factors from Payne weigh exclusively in favor
of setting aside the default entered against Defendants Allen and Tipton.
Accordingly, for good cause shown, the Court will grant the instant motion
and set aside the default.
Setting aside the default does not, however, resolve the issue of
whether Defendants Allen and Tipton have been properly served. On
October 20, 2025, the Plaintiff moved for service by publication on
Defendants Allen and Tipton. [Doc. 59]. The Magistrate Judge denied that
motion on October 31, 2025. [Doc. 64]. On January 13, 2026, the Plaintiff
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filed a renewed motion for service by publication on Defendants Allen and
Tipton. [Doc. 79]. The Magistrate Judge denied that motion on February 23,
2026 and directed the Plaintiff to show cause as to why her claims against
Defendants Allen and Tipton should not be dismissed. [Doc. 82]. On March
6, 2026, the Plaintiff filed a motion for reconsideration of the Magistrate
Judge’s denial of the Plaintiff’s renewed motion for service by publication.
[Doc. 83]. On March 24, 2026, the Plaintiff filed Certificate of Service by
Publication asserting that Defendants Allen and Tipton had been served by
publication in the Johnson City Press. [Doc. 86]. On March 26, 2026, the
Magistrate Judge denied the Plaintiff’s motion for reconsideration. [Text-
Only Order entered March 26, 2026]. The Magistrate Judge also discharged
the show cause Order without expressing an opinion on the sufficiency of
the Plaintiff’s attempted service by publication. [Id.].
Defendants Allen and Tipton, in their memorandum in support of the
instant motion, represent that they only learned about the Plaintiff’s lawsuit
when counsel for some of the other Defendants in this matter called them
and informed them of the Clerk’s entry of default. [Doc. 105 at 5].
Defendants Allen and Tipton also declare that they “do not believe [they]
have been served with process in this lawsuit.” [Doc. 105-1 at ¶ 8; Doc. 105-
2 at ¶ 8]. Defendants Allen and Tipton have, however, now retained counsel
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and made an appearance in this matter. Accordingly, the Court will direct
Defendants Allen and Tipton to take any appropriate actions to defend
against this action within twenty-one days of entry of this Order.
O R D E R
IT IS, THEREFORE, ORDERED that Defendants Allen and Tipton’s
Motion to Set Aside Clerk’s Entry of Default Against Jared Allen and Megan
Tipton [Doc. 104] is hereby GRANTED. The Clerk’s Entry of Default [Doc.
102] against Defendants Allen and Tipton is hereby SET ASIDE.
IT IS FURTHER ORDERED that Defendants Allen and Tipton are
hereby DIRECTED to take any appropriate actions to defend against this
action within twenty-one (21) days of entry of this Order.
IT IS SO ORDERED.
Signed: August 3, 2026
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