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, )

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.

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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