Belou v. Gusman et al

Filing 34

ORDER & REASONS granting 22 Motion to Set Aside Default re 19 Order on Motion for Entry of Default. Signed by Judge Martin L.C. Feldman on 1/12/2016. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GRAHAM BELOU

CIVIL ACTION

v.

NO. 15-0820

MARLIN N. GUSMAN, ET AL.

SECTION "F"

ORDER AND REASONS

Before the Court is Barcadia Bar and Grill New Orleans, LLC’s
Rule 55(c) motion for vacatur of entry of default.

For the reasons

that follow, the motion is GRANTED.
Background
This is a civil rights case arising out of an allegedly
wrongful arrest in which excessive force used by the arresting
officer injured the plaintiff.
On March 14, 2015, Graham Belou sued Marlin N. Gusman, Orleans
Parish Sheriff, Corey Amacker, an Orleans Parish Sheriff’s deputy,
and Barcadia Bar and Grill New Orleans, LLC.

Belou alleges that

on March 15, 2014, he was a patron outside of Barcadia following
the St. Patrick’s Day parade.

As he tried to re-enter the bar,

without provocation, Amacker, who was working a security detail at
Barcadia, tackled Belou, pushed his face into the dirt, restrained
him, slammed his head against the hood of the sheriff’s vehicle,

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roughly handcuffed him, and shoved him into the sheriff’s vehicle
as he was placed under arrest.

Belou suffered injuries to his

face and right hand; the tendon damage to his hand required
surgery.

His charges were nolle prosequied by the City Attorney.

In instituting this lawsuit against Gusman, Amacker, and Barcadia,
Belou alleges constitutional violations as well as state law tort
claims.
After the complaint was filed on March 14, 2015, summons was
issued on March 23, 2015 to Barcadia, through its registered agent,
Rachel Wendt Wisdom of the Stone Pigman law firm in New Orleans.
Belou, through his attorney, hired Adrian Williams to effect
service.

Williams avers that on August 21, 2015, she served

Barcadia through its registered agent by handing a copy of the
summons and complaint to a receptionist at Stone Pigman. (Barcadia
disputes that it was served). Barcadia never answered or otherwise
responded to the lawsuit.
On November 13, 2015, Belou filed a motion for default against
Barcadia in which plaintiff stated that on November 3, 2015,
plaintiff’s counsel had mailed the motion for default to Ms.
Wisdom. (Ms. Wisdom states under penalty of perjury that she never
received the motion for default).
of

Court

denied

the

motion

for

affidavit accompanied the motion.

On November 17, 2015, the Clerk
entry

of

default

because

no

Plaintiff filed a second motion

for entry of default against Barcadia on November 30, 2015 in which
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plaintiff’s counsel once again stated that on that date he had
mailed the second motion for default to Ms. Wisdom.

(Ms. Wisdom

states under penalty of perjury that she never received the second
motion).

The Clerk of Court granted the motion for entry of

default on December 3, 3015.
Almost a week later, on December 9, 2015, a Barcadia manager
received notice of the 12/3/15 preliminary default entered by the
Clerk of Court.

Barcadia contacted its registered agent and

daytime managers to determine if service was made.

Contending

that neither service of the summons and complaint nor service of
the notices of the motions for default were ever received by
Barcadia or its registered agent, Barcadia now requests that the
Court vacate the entry of default.
I.
A.
Federal

Rule

of

Civil

Procedure

55

governs

preliminary defaults and default judgments; it states:
(a)

(b)
(c)

Entering a Default. When a party against whom
a judgment of affirmative relief is sought has
failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise,
the clerk must enter the party’s default.
Entering a Default Judgment.
…
Setting Aside a Default or a Default Judgment.
The court may set aside an entry of default
for good cause, and it may set aside a final
default judgment under Rule 60(b).

Fed. R. Civ. P. 55.
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entry

of

B.
Where, as here, the Clerk of Court has merely entered
default, a showing of good cause by the defendant against whom
default was entered will suffice to vacate entry of default.
Fed. R. Civ. P. 55(c).

The Fifth Circuit offers this guidance

on gauging good cause in the context of vacating entry of
default:
We are mindful that “good cause” is not
susceptible of precise definition, and no
fixed, rigid standard can anticipate all of
the situations that may occasion the failure
of a party to answer a complaint timely. At
the outset it is important, however, to recall
that courts “’universally favor trial on the
merits’” and that the decision to set aside a
default is committed to the sound discretion
of the trial court. . . .
Matter of Dierschke, 975 F.2d 181, 183 (5th Cir. 1992)(citations
omitted).

To

determine

whether

good

cause

exists,

the

Court

considers a non-exclusive list of factors, such as whether the
default was willful, whether setting it aside would prejudice the
adversary, whether a meritorious defense is presented, and whether
the party acted expeditiously to correct the default.

Jenkens &

Gilchrist v. Groia & Co., 542 F.3d 114, 119 (5th Cir. 2008); In re
Chinese-Manufactured Drywall Prods. Liab. Litig., 753 F.3d 521,
544-45 (5th Cir. 2014); Matter of Dierschke, 975 F.2d at 184.

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II.
As a threshold matter, the Court notes that Barcadia has
identified a fact dispute regarding whether or not service of
process was actually effective under the Federal Rules.

Belou

contends that on August 21, 2015, his process server, Adrian
Williams, served Stone Pigman’s receptionist, who was a middleaged African American female.

But Barcadia submits that service

upon a registered agent’s receptionist is not proper service and,
furthermore,

that

the

receptionist

suggests was served does not exist. 1

upon

which

the

plaintiff

Of course, entry of default

would be improper if service was not effective.

Nevertheless, the

Court need not resolve this factual dispute because good cause
otherwise supports vacating the entry of default and allowing
Belou’s claims against Barcadia to be resolved on the merits.

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Under penalty of perjury, Ms. Wisdom of Stone Pigman states:
No African American women working at Stone
Pigman, either now or on the date of August
21st, 2015, are or were employed as a
receptionist
or
as
a
substitute/relief
receptionist. Instead, these African American
women include lawyers, the head of Stone
Pigman’s information technology department,
and other staff members. . . .
After a diligent search, Stone Pigman has
determined it has no record of any August 2015
service or delivery of a complaint and/or
summons for this lawsuit.
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The Court applies several factors identified by the case
literature.

To determine, first, whether Barcadia’s default was

willful, the Court is faced with the fact dispute presented by the
parties concerning whether or not the plaintiff’s process server
actually
registered

served
agent’s

Barcadia’s
sworn

registered

statement

agent.

supports

a

Barcadia lacked actual notice of this lawsuit.

Barcadia’s
finding

that

Although the

plaintiff insists that Ms. Wisdom was served through a Stone Pigman
receptionist, there is no other evidence in the record to suggest
that Barcadia willfully neglected the plaintiff’s lawsuit.

Absent

evidence of willfulness, the Court finds this factor weighs in
favor of vacating entry of default.
Second, the Court considers whether Belou would be prejudiced
if the Court vacated the default entered against Barcadia.

Belou

himself admits that he can point to no specific harm he would
suffer if entry of default is set aside.

Indeed, no scheduling

order has been entered in the case, and there is nothing in the
record that would support a finding of any prejudice if Barcadia
is permitted to defend.

Accordingly, the Court finds that setting

aside entry of default will do no harm to the plaintiff.

This

factor also supports vacatur.
Third, the Court considers whether Barcadia may assert any
meritorious defenses.

Regarding this factor, “[t]he underlying

concern is . . . whether there is some possibility that the outcome
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of the suit after a full trial will be contrary to the result
achieved by the default.”

Jenkins & Gilchrist v. Groia & Co., 542

F.3d 114, 122 (5th Cir. 2008)(citation omitted).

A review of

Barcadia’s defenses summarized in its papers demonstrates the
possibility that, if believed at trial, it may succeed on one or
more of its defenses, which would be contrary to the result
achieved by the default.

Barcadia points to the affirmative

defenses advanced by its co-defendants, as well as other defenses
it may raise, including that Amacker was an independent contractor,
rather than employee of Barcadia.
conclusory

fashion

that

Barcadia

meritorious defense to his claims.

The plaintiff suggests in
has

failed

to

establish

a

But the Court finds that there

is “some possibility” that Barcadia could succeed on one or more
of its defenses.

A finding that favors allowing Belou’s claims

against Barcadia to proceed on the merits.
Fourth,
expeditiously.

the

Court

considers

whether

Barcadia

acted

Barcadia contends that after it received notice of

the lawsuit on December 9, 2015 (when it received through the mail
the notice of entry of default), within seven days it retained
counsel, which investigated the matter, and appeared and began
participating in the lawsuit.
Barcadia acted expeditiously.

The plaintiff does not dispute that
The Court finds that the record

supports that it did so.

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Accordingly,

finding

good

cause,

IT

IS

ORDERED:

that

Barcadia’s Rule 55(c) motion for vacatur of entry of default is
hereby GRANTED.

New Orleans, Louisiana, January 12 2016
__,

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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