Avila Monroy et al v. Hendrix et al

Filing 38

ORDER AND REASONS - IT IS ORDERED that the Motion to Strike (Rec. Doc. 30 ) and the Motion for Default Judgment (Rec. Doc. 31 ) are GRANTED, as set forth in document. Plaintiffs are awarded $625,216.64 in damages, plus interest from the date of judicial demand. Signed by Judge Barry W Ashe on 1/7/2019. (cc: Defendants in default, via US Mail, last known addresses) (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELIAZAR AVILA MONROY
DANIELA ESPINOZA

CIVIL ACTION

VERSUS

NO. 17-9256

ALEXANDER C. HENDRIX,
ACH LAWN AND
LANDSCAPING LLC, and
ACH CONCRETE AND
LAWN SERVICES, LLC

SECTION: M (5)

ORDER & REASONS
Before the Court are Plaintiffs’ motion to strike the answer filed by defendant Alexander
C. Hendrix (“Hendrix”),1 and Plaintiffs’ motion for a default judgment.2 None of the defendants
has responded to either of Plaintiffs’ motions, and opposition memoranda as to both motions
were due on December 26, 2018. Having considered Plaintiffs’ motions and the facts and
procedural history of this case, the Court issues this Order & Reasons.
I.

BACKGROUND
Plaintiffs Eliazar Avila Monroy (“Avila”) and Daniela Espinoza (“Espinoza”), Avila’s

wife (collectively “Plaintiffs”), filed this action against defendants Hendrix and his two
companies, ACH Lawn and Landscaping, LLC (“ACH Lawn”) and ACH Concrete and Lawn
Services, LLC (“ACH Concrete”) (collectively “Defendants”), seeking damages for injuries
sustained by Avila in an automobile accident. Plaintiffs allege that in 2017, Avila, who is a
citizen of Mexico, was working for Hendrix and his two companies in Louisiana on a United
States H2B Visa.3 On March 31, 2017, Avila was a passenger in a vehicle driven by Hendrix

1

R. Doc. 30.
R. Doc. 31.
3
R. Doc. 1 at 3.
2

that was involved in an accident in Slidell, Louisiana.4

Plaintiffs allege that the accident

occurred as follows:
As Mr. Hendrix approached Oriole Street, he noticed the vehicles in front of him
slowing down and stopping due to traffic congestion. Mr. Hendrix, however,
began to slow his vehicle too late and, fearing that he would collide into the rear
of the vehicle in front of him, he suddenly veered left in order to avoid causing a
rear-end collision. In doing so, Mr. Hendrix drove over the center line of
Thompson Road, into the eastbound lane of traffic, and crashed head-on into
another vehicle, driven by John R. Breaux.5
Plaintiffs further allege that Hendrix admitted to the police officer who attended to the accident
scene that “he had made a bad decision and caused the collision.”6 As a result, the officer found
Hendrix to be at fault for the accident and issued him a citation for careless operation of a
vehicle.7
Plaintiffs allege that Avila was so severely injured in the accident that he was transported
from the scene by helicopter to University Medical Center.8 Avila sustained injuries to his head,
neck, shoulders, back, hip, leg, and knee, including fractures of his leg and hip that required
surgery.9
On September 18, 2017, Plaintiffs filed this action against Hendrix and his two
companies alleging that Hendrix’s negligence caused the accident, and that the companies are
liable under theories of respondeat superior and negligent supervision.10 Plaintiffs seek damages
for Avila’s pain and suffering, medical expenses, mental anguish, and lost wages, and Espinoza’s
loss of consortium.11

4

Id.
Id.
6
Id. at 3-4.
7
Id. at 4.
8
Id. at 5.
9
Id.
10
Id. at 4-7.
11
Id. at 5.
5

2

Plaintiffs served Hendrix on October 3, 2017, and served Hendrix’s two companies on
October 4, 2017.12 Thus, their answers were due on October 24, 2017, and October 25, 2017,
respectively.13 By January 2018, no Defendant had filed responsive pleadings, and Plaintiffs had
not moved for entry of default. Therefore, on January 10, 2018, the Court issued an order to
show cause why the case should not be dismissed for failure to prosecute.14 The next day,
Plaintiffs filed a motion for entry of default.15 The Clerk of Court entered default as to Hendrix,
ACH Law, and ACH Concrete on January 12, 2018.16
On February 5, 2018, Hendrix filed his answer.17 Neither of Hendrix’s companies has
appeared in this action.

On February 15, 2018, the Clerk of Court noticed a scheduling

conference for March 8, 2018.18
On February 23, 2018, Plaintiffs filed a motion to strike Hendrix’s answer as untimely
filed.19 Hendrix’s opposition to the motion was due on March 6, 2019, but he did not file one.
The March 8, 2018 scheduling conference went forward with the participation of counsel for
Plaintiffs and Hendrix.20 On March 26, 2018, the Court denied Plaintiffs’ motion to strike
Hendrix’s answer without prejudice because the motion was not accompanied by a motion for
entry of default judgment.21
On November 11, 2018, Hendrix counsel, Ernest J. Bauer, Jr. (“Bauer”), filed a motion to
withdraw stating that he had no contact with Hendrix and had enrolled only as a favor to another
attorney, Brian Dragon (“Dragon”), who was supposed to be lead counsel, but for various

12

R. Docs. 8-10.
Id.
14
R. Doc. 12.
15
R. Doc. 13.
16
R. Doc. 14.
17
R. Doc. 15.
18
R. Doc. 17.
19
R. Doc. 19.
20
R. Doc. 20.
21
R. Doc. 21 at 3-4.
13

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reasons never enrolled in the case.22 The Court set a hearing for December 20, 2018, to
determine counsel as to all Defendants, and ordered that Bauer and Hendrix both appear.23
Bauer attended the hearing, but Hendrix did not.24 Bauer recounted his many futile attempts to
contact Hendrix, and Hendrix’s failure to respond to any of his telephone calls, text messages, or
letters. The Court granted the motion to withdraw on the condition that Bauer attempt to
communicate with Hendrix one last time to inform him of the status of the case, the pending
motions, and Bauer’s withdrawal as counsel of record.25
On December 21, 2018, Bauer sent the Court a letter informing it of his compliance.26
Bauer stated that he was able to speak with Hendrix and advised him of the status of the case, the
pending motions, and Bauer’s withdrawal.27 Hendrix indicated that he understood.28 Hendrix
has not taken any action in this case since Bauer filed the letter.
II.

LAW & ANALYSIS
A.

Plaintiffs’ Motion to Strike Hendrix’s Answer (R. Doc. 30)

Plaintiffs seek to strike Hendrix’s answer arguing that was untimely filed.29 Pursuant to
Rule 12(a)(1)(A)(i) of the Federal Rules of Civil Procedure, a defendant’s answer is due within
21 days after he is served with the summons and complaint, unless another time is specified by
Rule 12 or a federal statute. A court may strike an answer as untimely under Rule 12. Direct TV
v. Young, 195 F. App’x 212, 215 (5th Cir. 2006).
In Direct TV, the defendant filed his answer after the Clerk of Court had entered a default
against him. Id. at 213. The plaintiff moved to strike the answer and for entry of a default
judgment. Id. at 214. The district court granted both motions and awarded the plaintiff $350,000
22

R. Doc. 26 at 1-2.
R. Doc. 27.
24
R. Doc. 34.
25
Id.
26
R. Doc. 34-1 at 2.
27
Id.
28
Id.
29
R. Doc. 30.
23

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in statutory damages plus reasonable attorney’s fees.

Id.

The district court denied the

defendant’s motion for relief from judgment made pursuant to Rule 60(b) of the Federal Rules of
Civil Procedure. Id. The Fifth Circuit affirmed the district court’s denial of the defendant’s Rule
60(b) motion noting that the defendant’s default could not be cured by simply filing an untimely
answer, and that the defendant failed to respond to the plaintiff’s motion to strike and motion for
entry of default judgment. Id. at 215. Therefore, the Fifth Circuit held that the district court did
not abuse its discretion in striking the answer and entering a default judgment. Id.
The case at bar presents the same scenario as Direct TV. Hendrix filed his answer
months after it was due and only after the Clerk of Court entered default against him. Hendrix
has not opposed Plaintiffs’ latest motion to strike his answer, just as he failed to oppose the first
such motion. Plaintiffs have accompanied their latest motion to strike the answer with a motion
for entry of a default judgment. Therefore, Plaintiffs’ motion to strike Hendrix’s answer is
GRANTED.
B.

Plaintiffs’ Motion for Entry of Default Judgment (R. Doc. 31)

Under Rule 55(b) of the Federal Rules of Civil Procedure, when a plaintiff’s claim is not
for a sum certain or a sum that can be made certain by computation, the plaintiff must apply to
the district court for a default judgment. A default judgment is not a matter or right, and granting
one is within the sound discretion of the district court. Flaska v. Little River Marine Constr. Co.,
389 F.2d 885, 887 (5th Cir. 1968). “If the court determines that defendant is in default, the
factual allegations of the complaint, except those relating to damages, will be taken as true.”
10A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2688.1
(4th ed.). A court may conduct hearings or make referrals when, in order to enter or effectuate
the judgment, it needs to conduct an accounting, determine the amount of damages, establish the
truth of any allegation by evidence, or investigate any other matter. Fed. R. Civ. P. 55(b)(2). In
determining whether to enter a default judgment the court considers:
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whether material issues of fact are at issue, whether there has been substantial
prejudice, whether the grounds for default are clearly established, whether the
default was caused by a good faith mistake or excusable neglect, the harshness of
a default judgment and whether the court would think itself obliged to set aside
the default on the defendant’s motion.
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).
In the case at bar, Plaintiffs have clearly established the grounds for default, and it was
not caused by a good faith mistake or excusable neglect. Defendants have refused to participate
in this litigation. Hendrix ignored multiple communications from his attorney, and his two
companies have not even attempted to enter appearances in this matter. Considering that the
procedural history of this case is nearly identical to that of Direct TV, in which the Fifth Circuit
affirmed the district court’s decision to strike the defendant’s answer and enter a default
judgment, this Court does not think it would be obligated to set aside a default judgment in this
case. Therefore, Plaintiffs’ motion for entry of default judgment is GRANTED.
In their motion for entry of a default judgment, Plaintiffs seek $625,216.64 in total
damages. This amount represents $158,032.97 in Avila’s past medical expenses, $406,246.67 in
general damages for Avila, and $60,937.00 for Espinoza’s loss of consortium claim.30 Plaintiffs
argue that these amounts are reasonable because they represent Avila’s actual past medical
expenses, and the general damages requested are comparable (when adjusted for inflation) to
those awarded in personal injury cases that involved injuries similar to those suffered by Avila as
a result of the accident.31 See Thibodeaux v. Stonebridge, L.L.C., 873 So. 2d 755 (La. App.
2004) (finding that the plaintiff should have been awarded $400,000 in general damages for a
broken hip); Fromenthal v. Delta Wells Surveyors, Inc., 776 So. 2d 1 (La. App. 2000) (awarding
$250,000 in general damages for a broken hip); Pate v. Skate Country, 682 So. 2d 288 (La. App.
1996) (awarding $200,000 for a broken hip). Considering the extent of Avila’s injuries, which

30
31

R. Doc. 31-1 at 5-11.
Id.

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include a broken hip that resulted in severe pain and suffering, the evidence of Avila’s past
medical expenses, the general-damage and loss-of-consortium awards in the cases cited by
Plaintiffs (including the effects of inflation), and the fact that Plaintiffs do not seek anything for
Avila’s future medical expenses, the Court finds that the amount requested by Plaintiffs is
reasonable and awards them $625,216.64 in damages, plus interest from the date of judicial
demand.
III.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiffs’ motion to strike Hendrix’s answer (R. Doc. 30) is

GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ motion for entry of default judgment (R.
Doc. 31) is GRANTED, and Plaintiffs are awarded $625,216.64 in damages, plus interest from
the date of judicial demand.

New Orleans, Louisiana, this 7th day of January, 2019.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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