Progressive Direct Insurance Company v. Mathis et al

Filing 13

OPINION AND ORDER DENYING plf's 9 MOTION for Default Judgment with leave to renew, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 11/6/14. (djy, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION PROGRESSIVE DIRECT INSURANCE COMPANY, Plaintiff, v. JUANITA MATHIS and CHRISTOPHER L. HENDERSON, Defendants. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:14cv712-MHT (WO) OPINION AND ORDER This lawsuit is now before the court on plaintiff Progressive default Because Direct judgment the requirements against motion of Insurance the Company’s defendant does not Juanita comply Servicemembers motion Civil for Mathis. with the Relief Act (“SCRA”), 50 App. U.S.C. § 521, the court will deny the motion, albeit with leave to renew. Section 521 of the SCRA provides: "In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit-- (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service." 50 App. U.S.C. § 521 (b)(1). An affidavit, in the sense of a notarized statement, is not strictly necessary under the terms of the SCRA. affidavit See Black’s Law Dictionary, 8th ed. (an is “[a] voluntary declaration of facts written down and sworn to by the declarant before an officer authorized notary public”). requirement by verification, or to administer oaths, such as a A litigant may satisfy the affidavit filing "a statement, certificate, in declaration, writing, subscribed and certified or declared to be true under penalty of perjury." 50 App. U.S.C. § 521 (b)(4). Progressive Direct has failed to meet the SCRA’s requirements in two respects. Direct avers that, "[u]pon 2 First, while Progressive information and belief," Mathis is not a member of the United States military, the insurance company has not made any "showing [of] necessary facts to support" this claim. Second, the insurance company has not provided an affidavit or a "statement, declaration, verification, or certificate ... subscribed and certified or declared to be true under penalty of perjury." Instead, the insurance company merely states in its unverified motion that it does not believe Mathis to be a member of the armed forces. And while the insurance company submitted an affidavit in support of the motion, it does not touch on the military service issue. *** Accordingly, Progressive Direct it is ORDERED Insurance that Company’s plaintiff motion for default judgment (doc. no. 9) is denied with leave to renew. DONE, this the 6th day of November, 2014. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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