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Warner v. Talos ERT, LLC

United States District Court, W.D. Louisiana, Lake Charles Division

August 16, 2019

ANIKA WARNER, ET AL.
v.
TALOS ERT, LLC; ET AL.

          KAY, MAGISTRATE JUDGE

          MEMORANDUM RULING

          JAMES D. CAIN, JR. UNITED STATES DISTRICT JUDGE

         Before the court are Motions for Default Judgment [docs. 17, 21] as to defendant Diverse Safety and Scaffolding, LLC ("DSS") filed by plaintiff Anika Warner and consolidated plaintiff Vantrece Jackson in the lead case, and a Motion for Default Judgment [doc. 21] filed by Jackson in the member case. Also before the court are Motions to Set Aside Default [docs. 26, 28] filed in the lead case by DSS, which are opposed by Warner and Jackson. The motions relate to the clerk's entry of default issued against DSS in this case and the member case, Jackson v. Talos ERT, LLC, No. 19-cv-00044 (W.D. La.), on April 23 and 25, 2019.

         I. Background

         Anika Warner, in her capacity as guardian of minor child Y.J., filed this wrongful death suit on November 2, 2018. Doc. 1. She seeks damages relating to the death of Walter Jackson ("decedent") in an accident that' allegedly occurred on or about February 17, 2018, on an oil and gas production platform. Id. at ¶¶ 4, 6. She filed suit against Talos ERT, LLC ("Talos"), as the platform owner and/or operator, and DSS, as the owner and operator of the scaffolding used on the platform. Id. Vantrece Jackson, surviving spouse of the decedent, also filed a wrongful death suit in this court against Talos and DSS on January 15, 2019. Jackson, No. 19-cv-00044, at doc. 1. The two cases were consolidated by court order on May 29, 2019. Id. at doc. 23.

         Talos was served in both suits and timely filed its answer. Plaintiffs filed returns of service for DSS, through "VICKY LEWIS, RECEPTIONIST, AUTHORIZED AGENT FOR SERVICE" (Warner) and "Morial Vallot" (Jackson), dated December 12, 2018, and February 12, 2019. Id. at doc. 4; Warner v. Talos ERT, LLC, No. 18-cv-01435, at doc. 4 (W.D. La.). Under these returns DSS's answers were due on February 2 and March 5, 2019, respectively. No. answer was filed by those deadlines, and a clerk's entry of default as to DSS was made in both cases prior to their consolidation. Jackson, No. 19-cv-00044, at doc. 22; Warner, No. 18-cv-01435, at doc. 16.

         Prior to consolidation, Jackson moved for default judgment in the member case. Jackson, No. 19-cv-00044, at doc. 21. After consolidation, both plaintiffs also moved for default judgment in the lead case. Warner, No. 18-cv-01435, at docs. 17, 21. Those motions are still pending, and DSS now moves to vacate the default in both cases. Docs. 26, 28. Specifically, it asserts that service in the Warner suit was deficient, that default judgment is unwarranted, and that good cause exists to vacate the default under Federal Rule of Civil Procedure 55(c). Plaintiffs oppose the motions. The court first considers whether grounds exist for setting aside the default and will only consider whether the motions for default judgment should be granted if it finds that the default itself should stand.

         II. Law & Application

         A. Law Governing Motion to Set Aside Default

         Under Federal Rule of Civil Procedure 55(c), a court may set aside an entry of default for good cause. The Fifth Circuit has identified the following three factors as useful in determining the existence of good cause: "whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented." Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000). The district court may treat either the first or third factor as dispositive. Pelican Renewables 2, LLC v. Directsun Solar Energy & Technology, LLC, 325 F.R.D. 570, 574-75 (E.D. La. 2016). It may also consider other issues, such as whether a party acted expeditiously to correct a default In re Chinese Manufactured Drywall Products Liab. Litig, 742 F.3d 576, 594 (5th Cir. 2014).

         The Fifth Circuit has "adopted a policy in favor of resolving cases on their merits and against the use of default judgments." Rogers v. Hartford Life and Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999). Accordingly, "if there are no countervailing equities such as a legitimate claim of prejudice ..., 'any doubt should, as a general proposition, be resolved in favor of the party moving to set aside the default to the end of securing a trial upon the merits.'" Pelican Renewables 2, 325 F.R.D. at 575 (quoting Gen. Tel. Corp. v. Gen. Tel. Answering Svc, 277 F.2d 919, 921 (5th Cir. I960)) (cleaned up).

         B. Warner Default

         In the Warner suit, DSS contends that entry of default was improper because service was ineffective. Under Federal Rule of Civil Procedure 4(h), a corporation, partnership; or association must be served in either (1) the manner set forth under Rule 4(e)(1) for serving an individual (which provides that the individual may be served in accordance with state law in the state where the district is located or service is made), or (2) by delivering a copy of the summons and complaint "to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process ...."

         Under the first option, the Louisiana Code of Civil Procedure provides that service of process on a limited liability company is made by personal service on its agent for service of process. La. C. Civ. P. art. 1266(A). "[I]f the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service, . . may be made by . .. [p]ersonal service on any employee of suitable age and discretion at any place where the business of the limited liability company is regularly conducted." Id. at art. 1266(B)(2). Under the second, a person does not qualify as an agent of the ...


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