Myers v. Powell

Filing 27

ORDER AND REASONS the Court GRANTS plaintiff's motion 22 for a default judgment IN PART. Defendant Clifton Powell is adjudged liable to plaintiff Kiyante Myers for committing assault, battery, and intentional infliction of emotional distress. The Court leaves open the issue of the quantum of damages and costs recoverable by plaintiff, pending plaintiff's submission of relevant evidence. Plaintiff is ordered to provide such evidence to the Court within THIRTY DAYS of this order.. Signed by Chief Judge Sarah S. Vance on 7/23/13.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIYANTE MYERS

CIVIL ACTION

VERSUS

NO: 12-2181

CLIFTON POWELL

SECTION: R(5)

ORDER AND REASONS
Before the Court is plaintiff Kiyante Myers's motion for
default judgment.1 For the following reasons, plaintiff's motion
is GRANTED IN PART.

I. BACKGROUND
Plaintiff Kiyante Myers seeks damages for assault, battery,
and intentional infliction of emotional distress that she
allegedly suffered at the hands of defendant Clifton Powell.2
Plaintiff alleges that on the night of August 28, 2011, she went
to defendant's hotel room, where the two began engaging in
consensual sex.3 Later that night, defendant wanted to engage in
sexual relations again, but plaintiff declined, saying that
defendant had been too rough the first time.4 After convincing
plaintiff to acquiesce, defendant allegedly began "pushing" and
"choking" plaintiff, penetrated her anus with his fingers, and

1

R. Doc. 22.

2

R. Doc. 1.

3

Id. at 4.

4

Id.

forcefully continued having sex with her against her will.5
Plaintiff alleged that this experience caused her to incur
"medical and legal expenses" and to suffer "stress, emotional
distress and mental pain and suffering" as well as "physical pain
and suffering."6
Plaintiff filed this diversity action on August 31, 2012,
seeking special and compensatory damages in excess of $75,000, as
well as reasonable attorneys' fees and costs.7 Defendant was
served on May 21, 2013 and failed to file an answer.8 Default was
entered on June 26, 2013.9 Plaintiff now moves for entry of
default judgment.

II. LEGAL 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. 55(b). A plaintiff who
seeks a default judgment must petition the court for the entry of
default and show "by affidavit or otherwise" that the defendant
"has failed to plead or otherwise defend." Fed. R. Civ. P. 55(a).

5

Id.

6

Id. at 5.

7

Id. at 5-6.

8

R. Doc. 22-3.

9

R. Doc. 25.
2

Once default has been entered, the plaintiff's well-pleaded
factual allegations are deemed admitted. See Nishimatsu Const.
Co., Ltd. v. Hous. Nat'l 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. See Lewis v. Lynn,
236 F.3d 766, 767 (5th Cir. 2001) (per curiam). The disposition
of a motion for the entry of default judgment rests within the
sound discretion of the trial court. See Mason v. Lister, 562
F.2d 343, 345 (5th Cir. 1977).

III. DISCUSSION
A. Jurisdiction
Before entering judgment, the 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). Judgment entered in the absence of jurisdiction
is void, and the court must therefore refrain from entering

3

judgment if its jurisdiction is uncertain.
Here, subject matter jurisdiction is founded upon diversity
of citizenship. See 28 U.S.C. § 1332. Plaintiff, a Louisiana
citizen,10 must meet the amount-in-controversy requirement under
§ 1332, and must be diverse from all defendants for diversity
jurisdiction to lie. See McLaughlin v. Miss. Power Co., 376 F.3d
344, 353 (5th Cir. 2004). Plaintiff alleges that defendant
Clifton Powell is a California citizen.11 Moreover, plaintiff
alleges that the amount in controversy exceeds $75,000.12 The
Court therefore finds that it has subject matter jurisdiction
over plaintiff's claims.
So, too, is there personal jurisdiction over defendant. A
court has personal jurisdiction over a defendant if (1) the forum
state's long-arm statute confers personal jurisdiction over the
defendant, and (2) the forum state's exercise of jurisdiction
complies with the Due Process Clause of the Fourteenth Amendment.
Latshaw v. Johnson, 167 F.3d 208, 211 (5th Cir. 1999). Because
Louisiana's long-arm statute, La. Rev. Stat. § 13:3201, et seq.,
extends jurisdiction to the full limits of due process, the
Court's focus is solely on whether the exercise of jurisdiction

10

R. Doc. 1 at 2.

11

Id.

12

Id. at 2-3. A court may only find the
controversy requirement not satisfied if "there
certainty that the amount in controversy cannot
Wright & Miller, Fed. Prac. & Proc. Civ. § 3702
4

amount in
is a legal
be recovered."
(4th ed. 2013).

in the case satisfies federal due process requirements. Dickson
Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 336 (5th Cir.
1999).
The exercise of personal jurisdiction over a nonresident
defendant satisfies due process "when (1) that defendant has
purposefully availed himself of the benefits and protections of
the forum state by establishing 'minimum contacts' with that
state, and (2) exercising personal jurisdiction over that
defendant does not offend 'traditional notions of fair play and
substantial justice.'" Latshaw, 167 F.3d at 211 (quoting Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Minimum
contacts can be established through "specific jurisdiction, which
exists when a nonresident defendant has purposefully directed its
activities at the forum state and the litigation results from
alleged injuries that arise out of or relate to those
activities." Panda Brandywine Corp. v. Potomac Elec. Power Co.,
253 F.3d 865, 867-68 (5th Cir. 2001) (internal quotation marks
omitted).
Here, plaintiff's claims arise out of an intentional tort
that occurred in Louisiana,13 and defendant was properly served
with process. Plaintiff has established that the defendant has
minimum contacts with Louisiana. See Guidry v. U.S. Tobacco Co.,
188 F.3d 619, 628 (5th Cir. 1999) ("When a nonresident defendant

13

R. Doc. 1 at 3.
5

commits a tort within the state . . . that tortious conduct
amounts to sufficient minimum contacts with the state by the
defendant to constitutionally permit courts within that state,
including federal courts, to exercise personal adjudicative
jurisdiction over the tortfeasor . . . ."); La. Rev. Stat. §
13:3201(A) ("A court may exercise personal jurisdiction over a
nonresident . . . as to a cause of action arising from any one of
the following activities performed by the nonresident: . . .
Causing injury or damage by an offense or quasi offense committed
through an act or omission in this state."). Moreover, defendant
has "not made any showing that litigating this matter in
Louisiana presents an unreasonable burden on [him]," and the
State of Louisiana has a "substantial interest" in the litigation
of claims based on torts committed within its boundaries. Guidry,
188 F.3d at 631. Personal jurisdiction is clear.
B. Entry of Default Judgment
The Court now turns to whether a default judgment should be
entered against defendant. The record shows that defendant was
served with process on May 21, 2013, but has failed to plead or
otherwise defend against plaintiff's claims.14 Defendant has not
appeared at all, despite having been mailed a copy of the Clerk
of Court's June 26, 2013 order that granted plaintiff's motion

14

R. Docs. 22, 22-2, 22-3.
6

for the entry of default.15 Although judgments by default are
generally disfavored, see Lindsey v. Prive Corp., 161 F.3d 886,
893 (5th Cir. 1998), the Court finds that defendant's failure to
appear impedes the "just, speedy, and inexpensive disposition" of
this case on the merits. Sun Bank of Ocala v. Pelican Homestead &
Sav. Ass'n, 874 F.2d 274, 276 (5th Cir. 1989). Moreover, the
record does not reveal any excuse for the defendant's failure to
appear. Thus, the Court will determine whether the facts alleged
in the complaint, taken as true, constitute a legitimate cause of
action, and if they do, the Court will enter a default judgment
in favor of the plaintiff.
The Court rules that plaintiff's complaint states a prima
facie case of assault and battery. Under Louisiana law,
"[a]ssault is an attempt to commit a battery, or the intentional
placing of another in reasonable apprehension of receiving a
battery." La. Rev. Stat. § 14:36. A battery, in turn, is defined
as "harmful or offensive contact with a person, resulting from an
act intended to cause the plaintiff to suffer such a contact."
Caudle v. Betts, 512 So.2d 389, 391 (La. 1987). Plaintiff alleges
that, "[a]fter a short period of consensual sex . . . Plaintiff
began to resist Defendant Powell which was met with physical
force as he pushed her face into the mattress while choking

15

R. Doc. 25. That mailing was returned as undeliverable.
See R. Doc. 26.
7

Plaintiff from behind."16 Defendant then "began to penetrate
[plaintiff's] anus with his fingers" and, when plaintiff tried to
resist, "plac[ed] his hands over her face and grasp[ed]
Plaintiff's jaw, resuming vaginal penetration . . . against her
will and without her consent under the perceived threat of
potential harm, until he was finished."17 According to the
complaint, then, defendant both attempted to and did engage in
intentional, harmful, and offensive contact with plaintiff,
thereby committing both assault and battery. See Mouton v.
Thomas, 924 So.2d 394, 397 (La. Ct. App. 2006) (noting that
"[s]triking another person" constitutes both an assault and a
battery).
Plaintiff has also stated a claim for intentional infliction
of emotional distress. To prevail on such a claim,
a plaintiff must establish (1) that the conduct of the
defendant was extreme and outrageous; (2) that the
emotional distress suffered by the plaintiff was severe;
and (3) that the defendant desired to inflict severe
emotional distress or knew that severe emotional distress
would be certain or substantially certain to result from
his conduct.
White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). The
threshold level of severity required is very high. Smith v.
Amedisys Inc., 298 F.3d 434, 450 (5th Cir. 2002) (citing White,
585 So.2d at 1209). "The distress suffered must be such that no

16

R. Doc. 1 at 4.

17

Id.
8

reasonable person could be expected to endure it." White, 585
So.2d at 1210. Moreover, the "conduct must be intended and
calculated to cause severe emotional distress." Id. Here,
defendant's conduct was certainly extreme and outrageous, and
plaintiff has alleged that the conduct was intentional and that
it caused plaintiff to suffer severe emotional distress.18
Accordingly, the Court will enter a default judgment against
defendant for assault, battery, and intentional infliction of
emotional distress.

C. Damages
"A default judgment is a judgment on the merits that
conclusively establishes the defendant's liability." U.S. For Use
of M-CO Const., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014
(5th Cir. 1987). A default judgment does not, however, establish
the amount of damages that the Court will award. Id. ("After a
default judgment, the plaintiff's well-pleaded factual
allegations are taken as true, except regarding damages."). "As a
general proposition, in the context of a default judgment,
unliquidated damages normally are not awarded without an
evidentiary hearing," unless the "amount claimed is . . . one
capable of mathematical calculation." James v. Frame, 6 F.3d 307,
310 (5th Cir. 1993); see also Fed. R. Civ. P. 55(b) ("The court
may conduct hearings or make referrals . . . when, to enter or

18

See R. Doc. 1 at 5.
9

effectuate a judgment, it needs to . . . determine the amount of
damages . . . .").
Plaintiff seeks damages for emotional distress, physical
pain and suffering, and medical expenses, as well as attorneys'
fees and costs.19 Damages for pain and suffering are decidedly
not "capable of mathematical calculation," James, 6 F.3d at 310,
and so the Court requires evidentiary submissions in order to set
an award of damages in this case. Plaintiff should request a
concrete amount of damages for emotional distress and pain and
suffering.20 She then may submit an affidavit detailing the
mental anguish and physical pain and suffering she has endured as
a result of defendant's conduct, affidavits from medical
professionals regarding the extent and effects of her injuries,
and any other evidence that she believes will assist the Court in
determining whether the requested quantum of damages is
reasonable. Cf. Cooper v. Faith Shipping, No. 06-892, 2009 WL
1789405, at *5-6 (E.D. La. June 22, 2009) (basing award of
damages for pain and suffering on (1) testimony of plaintiff
regarding his injuries and the loss of enjoyment of life he had
experienced because of them; and (2) affidavits from medical
experts concerning plaintiff's injuries and their effects on his

19

Id. at 5-6.

20

To this point, plaintiff has made only a vague request
for "an award commensurate with her injuries and damages." R.
Doc. 22-1 at 6.
10

daily life).
With regard to medical expenses, plaintiff has submitted a
bill from a chiropractor for $2210.00.21 The Court finds that
plaintiff has showed by a preponderance of the evidence that she
incurred the expenses listed in that bill as a result of
defendant's misconduct. Plaintiff is therefore entitled to
$2210.00 in past medical expenses. The Court will give plaintiff
an opportunity to submit documentation of any additional medical
expenses she has incurred as a result of defendant's actions
before the Court sets the amount of damages in a final judgment.
Plaintiff is entitled to recover costs under Federal Rule of
Civil Procedure 54(d). Under 28 U.S.C. § 1920, the following
types of expenses are considered "costs" under federal law:
fees of the clerk and marshal; fees of the court reporter
for all or any part of the stenographic transcript
necessarily obtained for use in the case; fees and
disbursements for printing and witnesses; fees for
exemplification and copies of papers necessarily obtained
for use in the case; docket fees; compensation of courtappointed
experts,
interpreters,
and
special
interpretation services.
Mota v. Univ. of Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th
Cir. 2001). "[F]ederal courts may only award those costs
articulated in section 1920 absent explicit statutory or
contractual authorization to the contrary." Id. (citing Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987)).
In the Fifth Circuit, courts generally award costs for private

21

R. Doc. 22-7.
11

process servers as well as for service effected by the United
States Marshals, but those costs are limited to the amount
charged by the Marshals. See, e.g., Ill. Cent. R.R. Co. v.
Harried, No. 5:06cv160-DCB-JMR, 2011 WL 283925, at *2 (S.D. Miss.
Jan 25, 2011). The Marshals collect $55 per hour plus travel
costs and other out-of-pocket expenses. 28 C.F.R. § 0.114(a).
Plaintiff has submitted two bills from private process servers
along with her motion for default judgment.22 The Court will give
plaintiff an opportunity to re-submit a claim for costs for
service of process that reflects the rates mandated by 28 C.F.R.
§ 0.114. Plaintiff may also submit evidence of any other costs
allowed by 28 U.S.C. § 1920 at that time.
Finally, plaintiff requests attorneys fees. This request is
denied, because plaintiff has presented no statutory or
contractual basis for recovering attorneys' fees. See Kessler v.
Pa. Nat'l Mut. Cas. Ins. Co., 531 F.2d 248, 255 n.30 (5th Cir.
1976) (attorneys' fees "may be recovered only when they are
authorized by statute or provided for by agreement").
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff's
motion for a default judgment in part. Defendant Clifton Powell
is adjudged liable to plaintiff Kiyante Myers for committing
assault, battery, and intentional infliction of emotional

22

See R. Doc. 22-8 at 1-4.
12

distress. The Court leaves open the issue of the quantum of
damages and costs recoverable by plaintiff, pending plaintiff's
submission of relevant evidence. Plaintiff is ordered to provide
such evidence to the Court within THIRTY DAYS of this order.
New Orleans, Louisiana, this 23rdday of July, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13