Crowley v. LMS Intellibound, LLC

Filing 13

ORDER AND REASONS: It is ORDERED that the Motion for Default Judgment (Rec. Doc. 9 ) filed by Plaintiff is GRANTED. The Court will enter final judgment against LMS (d/b/a Capstone) in the amount of $932,145.32, together with costs and legal interest from the date of judicial demand until paid. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SHAWN CROWLEY

CIVIL ACTION

VERSUS

No. 17-8189

LMS INTELLIBOUND, LLC

SECTION: “J”(2)
ORDER AND REASONS

Before the Court is a Motion for Default Judgment (Rec. Doc.
9), filed by Plaintiff, Shawn Crowley, in which Plaintiff seeks a
default judgment against Defendant, LMS Intellibound, LLC (d/b/a
Capstone Logistics, LLC) (“LMS (d/b/a Capstone)”).

The Court held

an evidentiary hearing on Friday, February 16, 2018, after which
the Court took the matter under advisement.

Having considered the

motion and legal memoranda, the record, and the applicable law,
the Court finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
On or about June 18, 2017, Plaintiff, a vacuum operator
employed

by

Associated

Wholesale

Grocers,

Inc.

(“AWG”),

was

working at AWG’s warehouse when a forklift struck him, knocked him
to the ground, and ran over his left leg.

The operator of the

forklift was an employee of LMS (d/b/a Capstone), a subcontractor
tasked with unloading trucks at the warehouse.

As a result of the

incident, Plaintiff suffered severe injuries to his left leg,
including a large laceration from his heel up to the back of his

knee.

Plaintiff continues to suffer from various medical issues

as a result of this incident.
On August 24, 2017, Plaintiff filed a complaint in this Court,
wherein Plaintiff alleges that LMS (d/b/a Capstone) is vicariously
liable for the negligence of the forklift operator that caused his
injuries. (Rec. Doc. 1.)

LMS (d/b/a Capstone) was served by

private process server through its agent of service of process on
September 8, 2017. (Rec. Doc. 21.) The time to file responsive
pleadings has since long expired.

To date, LMS (d/b/a Capstone)

has failed to request an extension, plead, or otherwise defend the
action against it.

Upon Plaintiff’s motion, the Clerk of Court

entered an entry of default against LMS (d/b/a Capstone) on January
5, 2018. (Rec. Doc. 8.)

On January 8, 2018, Plaintiff filed a

Motion for Default Judgment. (Rec. Doc. 9.) The Court held an
evidentiary hearing on Friday, February 16, 2018, after which the
Court took the matter under advisement.

The motion is now before

the Court.
LEGAL STANDARD
The United States Court of Appeals for the Fifth Circuit has
adopted a three step process to obtain a default judgment. See New
York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996).
First, a default occurs when a party “has failed to plead or
otherwise defend” against an action. Fed. R. Civ. P. 55(a).

Next,

an entry of default must be entered by the clerk when the default
2

is shown “by affidavit or otherwise.” See id.; NewYork Life, 84
F.3d at 141.

Third, a party may apply to the court for a default

judgment after an entry of default.

Fed. R. Civ. P. 55(b); New

York Life, 84 F.3d at 141.
After a party files for a default judgment, courts must apply
a two-part process to determine whether a default judgment should
be entered.

First, a court must consider whether the entry of

default judgment is appropriate under the circumstances.
v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).

Lindsey

Several factors

are relevant to this inquiry, including: (1) whether there are
material issues of fact at issue, (2) whether there has been
substantial prejudice, (3) whether the grounds for default have
been clearly established, (4) whether the default was caused by
excusable neglect or good faith mistake, (5) the harshness of the
default judgment, and (6) whether the court would think itself
obliged to set aside the default on a motion by Defendant. Id. at
*2.

Second, the Court must assess the merits of the plaintiff's

claims and determine whether the plaintiff has a claim for relief.
Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F. 2d 1200, 1206
(5th Cir. 1975); Hamdan v. Tiger Bros. Food Mart, Inc., 2016 WL
1192679, at *2 (M.D. La. Mar. 22, 2016).

By defaulting, a

defendant admits to the plaintiff's well-pleaded allegations of
fact, at least with respect to liability. Jackson v. FIE Corp.,
302 F.3d 515, 524 (5th Cir. 2002) (citing Nishimatsu Constr. Co.,
3

Ltd. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
Even though the facts are admitted, the plaintiff still has the
burden of showing that they give rise to a viable cause of action.
See Nishimatsu Constr., 515 F.2d at 1206.
DISCUSSION
A. Venue and Subject Matter Jurisdiction
First, the Court must establish that venue and subject matter
jurisdiction

have

been

properly

asserted

in

this

case.

The

incident at issue occurred in St. Tammany Parish, which is within
the

bounds

of

this

district.

Therefore,

venue

is

proper.

Plaintiff invoked diversity jurisdiction pursuant to 28 U.S.C. §
1332 because the amount in controversy exceeds $75,000 and there
is

complete

diversity

between

the

parties.

Plaintiff

is

a

Louisiana resident. With regard to LMS (d/b/a Capstone), the Court
is satisfied based on the evidence submitted that it is more
probable than not that the LMS and Capstone LLCs do not contain
any

members

who

are

domiciled

or

residents

in

Louisiana. 1

Therefore, the Court finds that diversity jurisdiction has also
been properly established.
B. Default Judgment is Appropriate under the Lindsey Factors
Considering the Lindsey factors, the Court finds that the
entry of default judgment is appropriate under the circumstances.

1

See testimony of Michelle Gallagher.

4

First, there are no material facts in dispute because Defendant
failed to file an answer or Rule 12 motion.

Second, Defendant has

failed to respond to Plaintiff’s correspondence. 2

Third, the

grounds for granting a default judgment against Defendant are
clearly established, as evidenced by the procedural history and
the Clerk’s entry of default.

Fourth, the Court has no basis to

find that Defendant’s failure to respond was the result of a good
faith mistake or excusable neglect because Defendant has failed to
respond to Plaintiff or the Court.

Fifth, Defendant’s failure to

file any responsive pleading or motion mitigates the harshness of
a default judgment.

Finally, the Court is not aware of any facts

that would lead it to set aside the default judgment if challenged
by the Defendant.

The Court therefore finds that the six Lindsey

factors weigh in favor of default.
C. Plaintiff’s Viable Claim
Considering the merits of Plaintiff’s claim, the Court finds
that Plaintiff has demonstrated that he is entitled to relief
against LMS (d/b/a Capstone) in the form of default judgment.
negligence

cases,

Louisiana

courts

have

adopted

a

In

duty-risk

analysis to determine whether liability exists under the facts of

2 Plaintiff’s counsel sent LMS a letter informing it of the pending litigation.
(Exhibit 18.) Cynthia Ferrer, HR coordinator for Capstone Logistics, responded
by email on October 30, 2017, acknowledging the lawsuit and requesting the
relevant documents. See Exhibit 19.
Counsel for Plaintiff provided such
documents by email on November 1, 2017. See Exhibit 20. However, there was no
further communication from Capstone or LMS thereafter.

5

a particular case.

Under this analysis, a plaintiff must prove

five separate elements: (1) the defendant had a duty to conform
his or her conduct to a specific standard of care; (2) the
defendant failed to conform his or her conduct to the appropriate
standard of care; (3) the defendant's substandard conduct was a
cause-in-fact of the plaintiff's injuries; (4) the defendant's
substandard conduct was a legal cause of the plaintiff's injuries;
and (5) actual damages.

Brewer v. J.B. Hunt Transport, Inc., 09–

1408 (La.3/16/10), 35 So.3d 230, 240; see also Bourg v. Cajun
Cutters, Inc., 2014-0210 (La. App. 1 Cir. 5/7/15), 174 So. 3d 56,
62.

Vicarious liability is embodied in Louisiana Civil Code

article 2320 which provides that employers are answerable for the
damage occasioned by their employees while acting the course and
scope of their employment. La. Civ. Code 2320.
Plaintiff has satisfied the elements for a negligence claim
against

LMS

liability.

(d/b/a

Capstone)

under

the

theory

of

vicarious

The evidence adduced at the hearing on the instant

matter clearly established that the operator of the forklift, LMS’s
employee, was negligent in operating the forklift in the course
and scope of his employment and that such negligence caused the
Plaintiff’s injuries. 3

3

Plaintiff testified that at the time of the incident, the LMS forklift operator
was not paying attention and driving in a position such that the operator could
not see where he was going when he ran over Plaintiff’s leg. Plaintiff also
testified that he knew of previous complaints concerning this forklift
operator’s careless driving.

6

With respect to damages, in addition to Plaintiff’s live
testimony, Plaintiff submitted evidence of his medical records and
invoices, 4 the Workers’ Compensation lien for the medical expenses
it

has

covered, 5

photographs

of

financial and employment records. 7

his

injuries, 6

and

various

After the incident, Plaintiff

spent four to five days in the emergency room. When he was released
home, his injured leg had no weight bearing capacity for four
months and Plaintiff faced the risk of losing the leg entirely.
His

treatments

debridement

for

the

procedures,

first
the

few

surgical

months

included

reattachment

of

multiple
his

big

toenail, and visits to a plastic surgeon to address the large areas
of missing skin.
Plaintiff is currently in the care of an orthopedist, a
podiatrist, a physical therapist, and an occupational therapist
for his injuries.

Evidence revealed that Plaintiff has bilateral

lymphedema as a result of his June 18, 2017 accident and that the
standard treatment will be an additional 16 to 20 visit of complete
decongestive therapy (CDT) to reduce the lymphedema, additional
therapy for life as needed, and that he will be required to wear
custom compression garments for the rest of his life.

Since the

date of the incident, Plaintiff has gained approximately 120 pounds

4
5
6
7

Exhibits 7-14.
Exhibit 5.
Exhibit 6.
Exhibits 1-2.

7

due

to

the

four

or

five

months

he

spent

without

mobility.

Plaintiff’s big toe has developed a disfigurement of sorts, in
that it sticks straight up in the air and does not lay flat.
Plaintiff purchased a hospital bed as necessary to keep his foot
elevated in the air and to prevent swelling. 8

Plaintiff was also

required to purchase specialized shoes to stabilize his ankle. 9
Jordan Frankel, an expert in rehabilitation counseling and a
certified life care planner, testified at the hearing that it is
unlikely that Plaintiff will ever be able to return to a medium to
heavy duty job.

Plaintiff likewise stated that he cannot perform

any of the jobs that he has occupied in the past, but that he is
determined to be able to work a lighter duty job in the future.
Plaintiff’s primary concern is to regain his mobility so that he
may begin to lose the dangerous amount of weight he has gained
“before it kills [him].”
has

his

doctors’

As of the date of the hearing, Plaintiff

approval

to

begin

low

impact

exercises

to

gradually achieve that goal.
Plaintiff also presented the testimony of Shael Wolfson, an
expert economist, who was asked to estimate Plaintiff’s various
damages, including lost earnings, earning capacity, and future
medicals of Plaintiff. 10 Wolfson provided the following estimates:
$30,001.00 for past lost earnings from date of incident to the

8

Exhibit 3.
Exhibit 4.
10
See Exhibit 22, Wolfson Report.
9

8

date of the hearing; $12,988.00 for fringe benefits lost; and
$260,855.00 for future loss of wages assuming that Plaintiff was
able to go back to some lighter work a year from the date of the
hearing.
Plaintiff contends that due to his injuries, he is also
entitled to general damages of $450,000.00. (Rec. Doc. 11 at 2.)
Considering the extent and severity of Plaintiff’s injuries, his
subsequent hospitalization, extensive treatment, the development
of bilateral lymphedema, his residual foot and leg disfigurement,
his

sensory

loss,

deviated

gate,

impaired

mobility,

and

significant weight gain, 11 the Court concludes that $450,000.00 is
an

appropriate

disability
presented.

amount

based

on

for
the

Plaintiff’s
foregoing

pain,

suffering,

testimony

evidence

Accordingly, Plaintiff’s total damages are as follows:

Past Lost Earnings:

$30,001.00

Fringe Benefits Lost:

$12,988.00

Future Medical Costs:

$35,235.00

Future Loss of Wages:

$260,855.00

Total Medical Bills/Invoices:

$142,396.95

Hospital Bed:

$599.99

Custom Shoes:

11

and

and

$69.38

See Exhibit 15.

9

General Damages:

$450,000.00

Total:

$932,145.32
CONCLUSION

Accordingly,
IT IS HEREBY ORDERED that the Motion for Default Judgment
(Rec. Doc. 9) filed by Plaintiff is GRANTED.

The Court will enter

final judgment against LMS (d/b/a Capstone) in the amount of
$932,145.32, together with costs and legal interest from the date
of judicial demand until paid.
New Orleans, Louisiana this 25th day of April, 2018.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

10