Dubroc v. Guidry

Filing 16

ORDER AND REASONS granting 11 Motion to Set Aside Default AND granting 12 Motion for Summary Judgment, and this matter is DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WENDY CARLTON DUBROC

CIVIL ACTION

VERSUS

NO: 14–1812

DAVID GUIDRY

SECTION: "H" (1)
ORDER AND REASONS

Before the Court are Defendant’s Motion to Set Aside Default (Doc. 11)
and Motion for Summary Judgment (Doc. 12). For the following reasons, the
Motions are GRANTED.
BACKGROUND
This is a Title VII retaliation action filed by Plaintiff Wendy Carlton
Dubroc against Defendant David Guidry. Plaintiff worked for Guico Machine
Works, Inc. as a controller/office manager from September 27, 2010, until
December 17, 2010. During the course of her employment, Plaintiff alleges that
Guidry harassed her by making unwanted sexual comments, despite the fact
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that the comments made her uncomfortable.

This harassment allegedly

commenced in October 2010 and persisted until Plaintiff quit on December 17,
2010.
On August 25, 2011 Plaintiff filed a charge of discrimination against Guico
Machine Works with the Equal Employment Opportunity Commission (“EEOC”)
and the Fair Employment Practices Agencies (“FEPA”) alleging discrimination
based on sex. In this suit, Plaintiff alleges that, as a result of filing her
discrimination charge, her home was vandalized, her computers "attacked," and
she was threatened. On May 12, 2014, Plaintiff filed a second charge of
discrimination against Guico Machine Works with the EEOC alleging
retaliation. On May 12, 2014, the EEOC provided Plaintiff with a Notice of
Right to Sue on the retaliation charge.
Plaintiff filed the instant law suit pro se on August 11, 2014 seeking
injunctive relief from Defendant's harassment and $1,000,000 in damages.1
Defendant was served on September 30, 2014 (Doc. 5), and his answer was due
on October 21, 2014. After Defendant failed to appear, the Clerk entered default
against him. Defendant filed the instant Motions six days later. Plaintiff failed
to oppose either Motion. In light of Plaintiff’s pro se status, this Court sua
sponte granted Plaintiff additional time to respond and ordered her to oppose the
Motions no later than February 10, 2015. Plaintiff again failed to respond, and
this Court will now decide the Motions.
1

The Court has liberally construed the allegations in Plaintiff's Complaint, as required
by Fifth Circuit precedent. Haines v. Kerner, 404 U.S. 519 (1972); see also Perez v. United
States, 312 F.3d 191, 194–95 (5th Cir. 2002).

2

LAW AND ANALYSIS
I. Motion to Set Aside Default
Federal Rule of Civil Procedure 55(c) provides that "[t]he court may set
aside an entry of default for good cause, and it may set aside a default judgment
under Rule 60(b)."2 To determine whether "good cause" has been shown, "a
district court should consider whether the default was willful, whether setting
it aside would prejudice the adversary, and whether a meritorious defense is
presented.3

The Fifth Circuit has also stated that Rule 60(b) factors are

"typically relevant" when considering a Rule 55(c) motion to set aside a default.4
Therefore, a court may also consider "whether the public interest was
implicated, whether there was significant financial loss to the defendant, and
whether the defendant acted expeditiously to correct the default."5
The balance of factors weighs heavily in favor of setting aside default.
First, the Court cannot conclude on the record before it that Defendant's default
was willful or in bad faith. Second, because the Court ultimately dismisses
Plaintiff’s complaint, she will undoubtedly suffer prejudice if the default is set
aside. Third, Defendant has a meritorious defense as the Court explains below.
Fourth, no public interest is implicated.

Fifth, there could be significant

financial loss to Defendant as Plaintiff seeks $1 million in damages. Finally,
2

Fed. R. Civ. P. 55(c). See also Lacy v. Sitel Corp., 227 F.3d 290, 291–92 (5th Cir. 2000).

3

In re Chinese-Manufactured Drywall Products Liab. Litig., 753 F.3d 521, 544–45 (5th
Cir. 2014) (citing One Parcel of Real Prop., 763 F.3d 181, 183 (5th Cir. 1985).
4

Id. (quoting Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (5th Cir. 1988)).

5

Id. (quoting In re OCA, 551 F.3d 359, 369 (5th Cir. 2008)).

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Defendant acted expeditiously in moving to correct the default within a matter
of days.
In sum, the Court finds that Defendant’s default was not willful, that
Defendant acted quickly to remedy the default, and that Defendant can present
a meritorious defense. Given the foregoing, Defendant has established the good
cause necessary under Rule 55(c). Although Plaintiff will be prejudiced by the
setting aside the default, the other factors significantly outweigh any prejudice
to Plaintiff.

Therefore, in light of the fact that default judgments are

disfavored,6 and considering the facts of this case, the Court will set aside the
default.
II. Motion for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."7 A genuine issue of fact exists only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."8
In determining whether the movant is entitled to summary judgment, the
Court views facts in the light most favorable to the non-movant and draws all
reasonable inferences in his favor.9 "If the moving party meets the initial burden
6

Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000).

7

Fed. R. Civ. P. 56(c) (2012).

8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

9

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).

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of showing that there is no genuine issue of material fact, the burden shifts to
the non-moving party to produce evidence or designate specific facts showing the
existence of a genuine issue for trial."10 Summary judgment is appropriate if the
non-movant "fails to make a showing sufficient to establish the existence of an
element essential to that party’s case."11 "In response to a properly supported
motion for summary judgment, the non-movant must identify specific evidence
in the record and articulate the manner in which that evidence supports that
party’s claim, and such evidence must be sufficient to sustain a finding in favor
of the non-movant on all issues as to which the non-movant would bear the
burden of proof at trial."12 "We do not . . . in the absence of any proof, assume
that the nonmoving party could or would prove the necessary facts."13
Additionally, "[t]he mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion."14
Despite the fact that Plaintiff has not opposed this Motion, the Court may
not grant the Motion as unopposed. Rather, the Fifth Circuit approaches the
automatic grant of dispositive motions with considerable aversion.15 Indeed, on
10

Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

11

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

12

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
13

Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
14

Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

15

See, e.g., Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702
F.3d 794, 806 (5th Cir. 2012) ("[The] failure to oppose a 12(b)(6) motion is not in itself grounds
for granting the motion. Rather, a court assesses the legal sufficiency of the complaint.");
Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per curiam); John v. State of La. Bd.

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a motion for summary judgment, the moving party still "has the burden of
establishing that there is no genuine dispute of material fact; and, unless that
party does so, a court may not grant the motion, regardless [of] whether any
response is filed."16 In this District, the failure to file an opposition requires the
Court to deem the moving party's statements of uncontested material facts
admitted.17 Nonetheless, the moving party must still make a prima facie
showing of its entitlement to judgment.18 Based on Defendant's statement of
uncontested material facts and this Court's independent review of the record,
there are no genuine disputes of material fact and Defendant is entitled to
judgment for the reasons stated below.
Plaintiff's Complaint asserts a retaliation claim under Title VII of the Civil
Rights Act of 1964. Title VII prohibits an employer from discriminating against
their employees on the basis of an individual's "race, color, religion, sex, or
national origin."19 The law is well-settled that Title VII provides for liability only
as to an employer,20 not an individual supervisor or fellow employee21 regardless
of Trs. for State Colls. & Univs., 757 F.2d 698, 709 (5th Cir. 1985).
16

Davis–Lynch, Inc. v. Moreno, 667 F.3d 539,550 (5th Cir. 2012) (citing Hibernia Nat'l
Bank v. Admin. Cent. Sociedad Anonima, 776 F.2d 1277,1279 (5th Cir. 1985)).
17

See L .R. 56.2.

18

See Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir. 1999).

19

42 U.S.C. § 2000e–2 (West 2014).

20

Title VII defines an "employer" as: "[A] person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year, and any agent of such a person." 42
U.S.C. § 2000e (West 2014).
21

See Turner v. Baylor Richardson Medical Ctr., 476 F.3d 337, 343 (5th Cir. 2007);Grant
v. Lone Star Co., 21 F.3d 337, 343 (5th Cir. 1994).

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of whether the person is sued in their individual or official capacity.22 Although
Title VII defines the term "employer" to include "any agent" of an employer,
"Congress’ purpose was merely to incorporate respondeat superior liability into
Title VII."23
Plaintiff does not allege any facts in her complaint that support the
conclusion that Defendant was her employer. To the contrary, in both her EEOC
charges, Plaintiff named Guico Machine Works, not Defendant, as her employer.
Defendant insists he is merely the President/CEO of Guico Machine Works and
he never personally employed Plaintiff. Plaintiff has offered no evidence to the
contrary despite multiple opportunities. Because Plaintiff cannot demonstrate
that Defendant is her employer, her action must be dismissed.
CONCLUSION
For the foregoing reasons, the Motions are GRANTED, the entry of
default against Defendant is SET ASIDE, and this matter is DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 10th day of April, 2015.

_________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
22
23

Smith v. Amedisys Inc., 298 F.3d 434, 448–49 (5th Cir. 2002).
Id. (citing Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999)).

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