Sorrell et al v. Lakeview Regional Medical Center et al
Filing
33
ORDER granting 28 Motion for Default Judgment. Signed by Chief Judge Sarah S. Vance on 7/30/12. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KRISTEN B. SORRELL, ET AL.
CIVIL ACTION
VERSUS
NO: 11-3084
LAKEVIEW REGIONAL MEDICAL
CENTER, ET AL.
SECTION: R(5)
ORDER AND REASONS
Petitioner-in-concursus Lakeview Regional Medical Center
(“LRMC”) moves the Court to enter a default judgment against
defendant-in-concursus James Burdette.1
Because LRMC has
presented evidence that Burdette has not answered or otherwise
responded to the petition, the Court GRANTS LRMC’s motion without
an evidentiary hearing.
I.
BACKGROUND
This concursus proceeding stems from a medical malpractice
action filed by plaintiffs Kristen B. Sorrell, Michael Bienvenu,
Staci Bienvenu Ellezy, Harvey Bienvenu, Jr., John D. Bienvenu,
Paul A. Bienvenu, and Emily J. Bienvenu.
Plaintiffs claim
that their mother, Joann Sykes, received negligent treatment
while a patient at the Lakeview Regional Medical Center (“LRMC”),
and, as a result of that allegedly negligent treatment, died of
cardiac arrest at Bogalusa Community Medical Center (“BCMC”) on
1
R. Doc. 28.
February 21, 2000.2
Plaintiffs and LRMC entered a settlement
agreement in June 2010 that would dispose of the action upon the
payment by LRMC to plaintiffs of $15,000.3
On November 17, 2011, LRMC filed a concursus proceeding in
state court to adjudicate competing claims to the $15,000
settlement.4
The petition named as defendants-in-concursus all
plaintiffs, the United States Department of Health and Human
Services Center for Medicare and Medicaid Services (“CMS”), and
James W. Burdette, II, former counsel of record of plaintiffs
Sorrell and Ellezy.5
LRMC asserts that plaintiffs have also made
claims against other medical providers, including BCMC,
Hematology and Oncology, LLC, and the Louisiana Patient’s
Compensation Fund.6
LRMC asserts that Sykes was a Medicare
beneficiary who received benefits from Medicare from February 11,
2000 to February 21, 2000.7
LRMC also contends that Burdette has
asserted a lien in this case to recover his attorney’s fees and
costs accrued in connection with his former representation of
2
R. Doc. 1-1 at ¶6.
3
Id. at ¶2.
4
R. Doc. 1-1.
5
Id. at ¶1.
6
Id. at ¶4.
7
Id. at ¶8.
2
Sorrell and Ellezy.8
On December 16, 2011, CMS removed the concursus proceeding
to this Court pursuant to 28 U.S.C. 1442(a).9
CMS identified
BCMC, Hematology and Oncology Services, LLC, Wayne Lemaire, and
the Louisiana Patient’s Compensation Fund as additional parties
to the action.10
On February 9, 2012, the Court ordered the
funds deposited into the state court registry, $15,030.74, to be
transferred to the registry of the United States District Court
for the Eastern District of Louisiana.11
On May 21, 2012, the
Court denied a motion by CMS for repayment of $10,757.44 in
conditional Medicare benefits because the Court found that CMS
failed to establish the factual predicate for a primary plan.12
The Court then granted CMS’s unopposed motion to dismiss it as a
party.13
Burdette failed to plead or respond to the concursus
proceeding.
On June 1, 2012, LRMC moved for entry of default14
8
Id. at ¶11.
9
R. Doc. 1.
10
R. Doc. 9.
11
R. Doc. 13.
12
R. Doc. 20.
13
R. Doc. 27.
14
R. Doc. 21.
3
and default was entered on June 4, 2012.15
LRMC now moves for
entry of default judgment against Burdette.
II.
STANDARD
Under Federal Rule of Civil Procedure 55(b), a default
judgment may be entered against a party when it fails to plead or
otherwise respond to the plaintiff’s complaint within the
required time period.
Fed. R. Civ. P. 559b).
A plaintiff who
seeks a default judgment against an uncooperative defendant must
proceed through two steps.
First, the plaintiff must petition
the court for the entry of default, which is simply “a notation
of the party’s default on the clerk’s record of the case.”
Dow
Chem. Pac. Ltd. v. Rascator Mar. S.A., 782 F.2d 329, 335 (2d Cir.
1986); see also United States v. Hansen, 795 F.2d 35, 37 (7th
Cir. 1986)(describing the entry of default as “an intermediate,
ministerial, nonjudicial, virtually meaningless docket entry”).
Before the clerk may enter the defendant’s default, the plaintiff
must show “by affidavit or otherwise” that the defendant “has
failed to plead or otherwise defend.”
Fed. R. Civ. P. 55(a).
Beyond that requirement, however, the entry of default is largely
mechanical.
Once the default has been entered, the plaintiff’s wellpleaded factual allegations are deemed admitted.
15
R. Doc. 22.
4
See Nishimatsu
Const. Co. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir.
1975).
At the same time, the defaulting defendant “is not held
to admit facts that are not well-pleaded or to admit conclusions
of law.”
Id.
After the defendant’s default has been entered,
the plaintiff may request the entry of judgment on the default.
If the plaintiff’s claim is for a sum certain and the defendant
has not made an appearance in court, the request for a default
judgment may be directed to the clerk.
Fed. R. Civ. P. 55(b)(1).
In all other cases, “the party must apply to the court for a
default judgment.”
Fed. R. Civ. P. 55(b)(2).
No party is
entitled to a default judgment as a matter of right.
Lewis v.
Lynn, 236 F.3d 766, 767 (5th Cir. 2001)(per curiam).
The
disposition of a motion for the entry of default ultimately rests
within the sound jurisdiction of the district court.
Mason v.
Lister, 562 F.2d 343, 345 (5th Cir. 1977).
III. DISCUSSION
A.
Jurisdiction
Before entering judgment, the district court must “look into
its jurisdiction both over the subject matter and the parties.”
Sys Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322,
324 (5th Cir. 2001)(quoting Williams v. Life Sav. & Loan, 802
F.2d 1200, 1203 (10th Cir. 1986)).
Judgment entered in the
absence of jurisdiction is void, and the court must therefore
5
refrain from entering judgment if its jurisdiction is uncertain.
In this case, subject matter jurisdiction is founded upon
federal agency removal.
See 28 U.S.C. 1442(a).
This statute
permits, inter alia, a federal agency to remove an action to
federal district court if a civil action is commenced against it.
CMS, as part of the United States Department of Health and Human
Services, is plainly an agency of the United States.
Further, a
concursus constitutes a civil action for purposes of this removal
statute.
Citizens Nat’l Bank v. United States, 455 Fed. Appx.
498 (5th Cir. 2011).
That the United States was dismissed as a
party does not divest the Court of subject matter jurisdiction.
IMFC Prof’l Servs. of Fla., Inc. v. Latin Am. Home Health, Inc.,
676 F.2d 152, 159 (5th Cir. 1982)(“elimination of the federal
officer from a removed case does not oust the district court of
jurisdiction”).
The Court therefore finds that it has
jurisdiction to enter this default judgment.
B.
Entry of Default Judgment
The Court turns to whether a default judgment should be
entered against Burdette.
The record shows that counsel for LRMC
sent Burdette a letter notifying him of the concursus on November
17, 2011, but he has failed to plead or otherwise assert a claim
for the settlement.16
16
Indeed, Burdette has made no appearance
R. Doc. 1-1 at 1.
6
whatsoever despite the entry of default against it.
Although
judgments by default are generally disfavored, Lindsey v. Prive
Corp., 161 F.3d 886, 893 (5th Cir. 1998), the Court finds that
Burdette’s failure to appear has made it impossible to achieve
the “just, speedy, and inexpensive disposition” of this case on
the merits.
Sun Bank v. Pelican Homestead & Sav. Assoc., 874
F.2d 274, 276 (5th Cir. 1989).
The record does not reveal any
excuse for Burdette’s failure to appear.
Accordingly, the Court
will enter a default judgment against Burdette.
IV.
CONCLUSION
For the foregoing reasons, the motion is GRANTED.
Burdette
is hereby proscribed from asserting any claims, partial or in
whole, for the $15,000 deposited into the registry of this Court
in this matter.
New Orleans, Louisiana, this ___ day of July, 2012.
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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