Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Monroy v. Hendrix

United States District Court, E.D. Louisiana

January 7, 2019

ELIAZAR AVILA MONROY DANIELA ESPINOZA
v.
ALEXANDER C. HENDRIX, ACH LAWN AND LANDSCAPING LLC, and ACH CONCRETE and LAWN SERVICES, LLC

         SECTION: M (5)

          ORDER & REASONS

          BARRY W. ASHE, UNITED STATES DISTRICT JUDGE

         Before the Court are Plaintiffs' motion to strike the answer filed by defendant Alexander C. Hendrix (“Hendrix”), [1] and Plaintiffs' motion for a default judgment.[2] None of the defendants has responded to either of Plaintiffs' motions, and opposition memoranda as to both motions were due on December 26, 2018. Having considered Plaintiffs' motions and the facts and procedural history of this case, the Court issues this Order & Reasons.

         I. BACKGROUND

         Plaintiffs Eliazar Avila Monroy (“Avila”) and Daniela Espinoza (“Espinoza”), Avila's wife (collectively “Plaintiffs”), filed this action against defendants Hendrix and his two companies, ACH Lawn and Landscaping, LLC (“ACH Lawn”) and ACH Concrete and Lawn Services, LLC (“ACH Concrete”) (collectively “Defendants”), seeking damages for injuries sustained by Avila in an automobile accident. Plaintiffs allege that in 2017, Avila, who is a citizen of Mexico, was working for Hendrix and his two companies in Louisiana on a United States H2B Visa.[3] On March 31, 2017, Avila was a passenger in a vehicle driven by Hendrix that was involved in an accident in Slidell, Louisiana.[4] Plaintiffs allege that the accident occurred as follows:

As Mr. Hendrix approached Oriole Street, he noticed the vehicles in front of him slowing down and stopping due to traffic congestion. Mr. Hendrix, however, began to slow his vehicle too late and, fearing that he would collide into the rear of the vehicle in front of him, he suddenly veered left in order to avoid causing a rear-end collision. In doing so, Mr. Hendrix drove over the center line of Thompson Road, into the eastbound lane of traffic, and crashed head-on into another vehicle, driven by John R. Breaux.[5]

         Plaintiffs further allege that Hendrix admitted to the police officer who attended to the accident scene that “he had made a bad decision and caused the collision.”[6] As a result, the officer found Hendrix to be at fault for the accident and issued him a citation for careless operation of a vehicle.[7]

         Plaintiffs allege that Avila was so severely injured in the accident that he was transported from the scene by helicopter to University Medical Center.[8] Avila sustained injuries to his head, neck, shoulders, back, hip, leg, and knee, including fractures of his leg and hip that required surgery.[9]

         On September 18, 2017, Plaintiffs filed this action against Hendrix and his two companies alleging that Hendrix's negligence caused the accident, and that the companies are liable under theories of respondeat superior and negligent supervision.[10] Plaintiffs seek damages for Avila's pain and suffering, medical expenses, mental anguish, and lost wages, and Espinoza's loss of consortium.[11]

         Plaintiffs served Hendrix on October 3, 2017, and served Hendrix's two companies on October 4, 2017.[12] Thus, their answers were due on October 24, 2017, and October 25, 2017, respectively.[13] By January 2018, no Defendant had filed responsive pleadings, and Plaintiffs had not moved for entry of default. Therefore, on January 10, 2018, the Court issued an order to show cause why the case should not be dismissed for failure to prosecute.[14] The next day, Plaintiffs filed a motion for entry of default.[15] The Clerk of Court entered default as to Hendrix, ACH Law, and ACH Concrete on January 12, 2018.[16]

         On February 5, 2018, Hendrix filed his answer.[17] Neither of Hendrix's companies has appeared in this action. On February 15, 2018, the Clerk of Court noticed a scheduling conference for March 8, 2018.[18]

         On February 23, 2018, Plaintiffs filed a motion to strike Hendrix's answer as untimely filed.[19] Hendrix's opposition to the motion was due on March 6, 2019, but he did not file one. The March 8, 2018 scheduling conference went forward with the participation of counsel for Plaintiffs and Hendrix.[20] On March 26, 2018, the Court denied Plaintiffs' motion to strike Hendrix's answer without prejudice because the motion was not accompanied by a motion for entry of default judgment.[21]

         On November 11, 2018, Hendrix counsel, Ernest J. Bauer, Jr. (“Bauer”), filed a motion to withdraw stating that he had no contact with Hendrix and had enrolled only as a favor to another attorney, Brian Dragon (“Dragon”), who was supposed to be lead counsel, but for various reasons never enrolled in the case.[22] The Court set a hearing for December 20, 2018, to determine counsel as to all Defendants, and ordered that Bauer and Hendrix both appear.[23]Bauer attended the hearing, but Hendrix did not.[24] Bauer recounted his many futile attempts to contact Hendrix, and Hendrix's failure to respond to any of his telephone calls, text messages, or letters. The Court granted the motion to withdraw on the condition that Bauer attempt to communicate with Hendrix one last time to inform him of the status of the case, the pending motions, and Bauer's withdrawal as counsel of record.[25]

         On December 21, 2018, Bauer sent the Court a letter informing it of his compliance.[26]Bauer stated that he was able to speak with Hendrix and advised him of the status of the case, the pending motions, and Bauer's withdrawal.[27] Hendrix indicated that he understood.[28] Hendrix has not taken any action in this case since Bauer filed the letter.

         II. LAW & ANALYSIS

         A. Plaintiffs' Motion to Strike Hendrix's Answer (R. Doc. 30)

         Plaintiffs seek to strike Hendrix's answer arguing that was untimely filed.[29] Pursuant to Rule 12(a)(1)(A)(i) of the Federal Rules of Civil Procedure, a defendant's answer is due within 21 days after he is served with the summons and complaint, unless another time is specified by Rule 12 or a federal statute. A court may strike an answer as untimely under Rule 12. Direct TV v. Young, 195 Fed.Appx. 212, 215 (5th Cir. 2006).

         In Direct TV, the defendant filed his answer after the Clerk of Court had entered a default against him. Id. at 213. The plaintiff moved to strike the answer and for entry of a default judgment. Id. at 214. The district court granted both motions and awarded the plaintiff $350, 000 in statutory damages plus reasonable attorney's fees. Id. The district court denied the defendant's motion for relief from judgment made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Id. The Fifth Circuit affirmed the district court's denial of the defendant's Rule 60(b) motion noting that the defendant's default could not be cured by simply filing an untimely answer, and that the defendant failed to respond to the plaintiff's motion to strike ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.