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Ferrell v. Young

The superior court erred in denying the defendant's motion to open default, as it improperly found that he failed to comply with two of the four necessary conditions and thus that it lacked discretion to consider the asserted grounds for opening default on the plaintiff's 42 USC § 1983 claim.

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Brandon Young filed suit in the Fulton County Superior Court against the Georgia World Congress Center Authority GWCCA; the Chief of the GWCCA police department; and officer Twyone Ferrell of the GWCCA police department alleging that, after Ferrell arrested him at the GWCCA for possession of a stolen cell phone, Ferrell fondled his penis and forced him to commit non-consensual sex acts. Young alleged that Ferrell acted within the scope of his employment as a GWCCA police officer, and sued Ferrell in his individual capacity asserting causes of action under state law and pursuant to 42 U.S.C. § 1983 for violation of federal rights.1

Ferrell appeals from the Superior Court’s order granting a default judgment against him for failing to file a timely answer, and denying his motion to open the default. As to Young’s claim brought against Ferrell, individually, pursuant to 42 U.S.C. § 1983, we find that the Court correctly concluded Ferrell was in default for failing to timely answer. But we vacate the default judgment and the order denying Ferrell’s motion to open default, and remand the case for reconsideration of the motion. As to Young’s claim brought against Ferrell, individually, under state law, we vacate the grant of the default judgment and remand with direction to dismiss the claim—as a police officer employed by the GWCCA, Ferrell was immune from suit on this claim under OCGA § 50-21-25 a and b, and therefore the Court had no subject matter jurisdiction.

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