McGuire v. Freedom Well Services, LLC
ORDER AND REASONS granting 36 Motion to Vacate 8 Order on Motion for Entry of Default. The default previously entered against Defendant Freedom Wells is VACATED. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FREEDOM WELL SERVICES, ET AL
ORDER AND REASONS
Before the Court is Defendant Maxum Casualty Insurance Company’s
Motion to Vacate the Entry of Default Against Freedom Well Services L.L.C.
(Doc. 36). For the following reasons, this Motion is GRANTED.
This is a Title VII employment discrimination case.
employed by Defendant Freedom Well Services, LLC (“Freedom Well”). While
working offshore on October 4, 2012, he recorded a conversation between his
supervisor and another person wherein his supervisor made derogatory racial
remarks about the Plaintiff. Plaintiff reported this incident to his supervisor.
He was subsequently transferred to the on shore shop, at a decrease in pay.
He was terminated on January 11, 2013.
Freedom Well stated that the
termination was by mutual agreement due to Plaintiff’s incompatibility in the
workplace. Plaintiff maintains that this is not true. He brings claims for
discrimination, racial harassment, and retaliation. He avers that defendants
Travelers Casualty and Surety Company of America and Maxum Casualty and
Insurance Company (“Maxum”) issued insurance policies to Freedom Well
covering this incident.
On May 18, 2016, the clerk entered default as to Defendant Freedom
Well after it failed to appear. Defendant Maxum has filed the instant Motion
asking the Court to vacate the default entered against Freedom Well. Plaintiff
opposes this Motion
Rule 55(c) permits the trial court to set aside an entry of default for “good
cause.”1 To determine whether “good cause” has been shown, a district court
should consider (1) whether the default was willful; (2) whether granting the
motion would prejudice the non-moving party; and (3) whether a meritorious
defense is presented.2 These factors, however, are not “talismanic” and the
Court may consider others such as 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.3 In deciding a Rule 55(c)
motion, the Court is mindful that default judgments are generally disfavored
by the law and that any doubt should be resolved in favor of the movant.4
LAW AND ANALYSIS
Defendant Maxum moves to vacate the default entered against its
insured, Defendant Freedom Well, on the grounds that Freedom Well was
Fed. R. Civ. P. 55(c).
Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000).
3 Dierschke v. O’Cheskey, 975 F.2d 181, 184 (5th Cir. 1992).
4 See Lacy, 227 F.3d at 292.
never properly served. Service on corporate entities is governed by Federal
Rule of Civil Procedure 4(h), which provides, in pertinent part, as follows:
(h) Serving a Corporation, Partnership, or Association. Unless
federal law provides otherwise or the defendant’s waiver has been
filed, a domestic or foreign corporation, or a partnership or other
unincorporated association that is subject to suit under a common
name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an
(B) by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized
by appointment or by law to receive service of process and--if the
agent is one authorized by statute and the statute so requires--by
also mailing a copy of each to the defendant;
Federal Rule of Civil Procedure 4(e)(1), which governs service on individuals,
(e) Serving an Individual Within a Judicial District of the United
States. Unless federal law provides otherwise, an individual--other
than a minor, an incompetent person, or a person whose waiver
has been filed--may be served in a judicial district of the United
(1) following state law for serving a summons in an action brought
in courts of general jurisdiction in the state where the district court
is located or where service is made;
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual’s dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Plaintiff claims to have affected service pursuant to Federal Rule of Civil
Procedure 4(e)(2), which permits service to be made on an agent authorized by
appointment to receive service of process. In support of this contention, he
points to his service return, wherein a process server indicated that a copy of
the summons was personally delivered to “Tamecca Thompson, Authorized To
Accept.”5 “The general rule is that ‘[a] signed return of service constitutes
prima facie evidence of valid service, which can be overcome only by strong and
convincing evidence.’”6 Defendant Maxum has presented evidence indicating
that Freedom Well has been involuntarily terminated as an entity. Its last
agent for service of process, Mr. John Hoffman, resigned from his position and
no new agent was appointed in his stead. No record evidence indicates that
Tamecca Thompson holds or held any position relative to Freedom Wells.
Accordingly, the Court finds that Defendant has rebutted the presumption of
valid service and that the previously entered default should be vacated.
For the forgoing reasons, the Motion to Vacate Default is GRANTED.
The default previously entered against Defendant Freedom Wells (Doc. 8) is
New Orleans, Louisiana this 20th day of July, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
People’s United Equip. Fin. Corp. v. Hartmann, 447 Fed. Appx. 522, 524 (5th Cir.2011)
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