United States District Court, W.D. Louisiana, Lake Charles Division
ANIKA WARNER, ET AL.
TALOS ERT, LLC; ET AL.
D. CAIN, JR. UNITED STATES DISTRICT JUDGE
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,
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.
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
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.
Law & Application
Law Governing Motion to Set Aside Default
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).
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).
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 ...."
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