Life Insurance Company of the Southwest v. Thanh

Filing 17

MEMORANDUM AND ORDER DENYING 16 Motion for Default Judgment (c/m to Defendants 11/20/18 sat). Signed by Judge Deborah K. Chasanow on 11/20/2018. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LIFE INSURANCE COMPANY OF THE
SOUTHWEST
v.

:
:

Civil Action No. DKC 18-0425

:
HIEN LAC THANH, et al.
:
MEMORANDUM OPINION AND ORDER
Plaintiff, Life Insurance Company of the Southwest, filed a
complaint on February 9, 2018, seeking to rescind a life insurance
policy and accelerated benefits rider issued to Defendant, Hien
Lac Thanh, and also to obtain “a declaration that both are null
and void ab initio.”

(ECF No. 1).

Plaintiff served the complaint

upon Mr. Thanh through personal service on March 6, 2018.
No. 4).

(ECF

Due to a lack of response by Mr. Thanh, the court ordered

Plaintiff to file and serve by mail on Mr. Thanh a motion for
entry of default by the clerk or provide a report as to why such
motion would be inappropriate.

(ECF No. 5).

Plaintiff sought and

was granted leave to file an amended complaint adding Vivienne
Hong Granado, Power of Attorney for Defendant Hien Lac Thanh, as a
defendant to this action.

(ECF Nos. 6 & 8).

Plaintiff filed an

amended

29,

Ms.

complaint

defendant.

on

May

(ECF No. 9).

2018,

adding

Granado

as

a

After difficulty serving Ms. Granado,

Plaintiff sought and was granted leave to serve by alternative

service of process.

(ECF Nos. 11 & 12).

Plaintiff served Ms.

Granado on June 29, 2018, by first class mail, postage pre-paid
and on July 2, 2018, by posting a copy of the summons, the amended
complaint, motion for leave to amend complaint and other papers at
her residence.

(ECF No. 13).

To date, neither Mr. Thanh nor Ms.

Granado has entered an appearance.

Plaintiff moved for a clerk’s

entry of default for want of answer or other defense on July 26,
2018, and the clerk entered default on August 3, 2018. (ECF Nos.
14, 15).

On August 8, 2018, Plaintiff filed a motion for default

judgment against Mr. Thanh and possibly against Ms. Granado as
well, although the motion is unclear.

(ECF No. 16).

Federal Rule of Civil Procedure 55(b) provides for entering
a default judgment.

It provides in part:

(1)

By the Clerk. If the plaintiff’s claim
is for a sum certain or a sum that can
be made certain by computation, the
clerk—on the plaintiff’s request, with
an affidavit showing the amount due—
must enter judgment for that amount and
costs against a defendant who has been
defaulted for not appearing and who is
neither a minor nor an incompetent
person.

(2)

By the Court. In all other cases, the
party must apply to the court for a
default judgment.
A default judgment
may be entered against a minor or
incompetent person only if represented
2

by a general guardian, conservator, or
other like fiduciary who has appeared.
The Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901, et seq.,
also requires an affidavit of non-military service.
Plaintiff has not provided an affidavit attesting to Mr.
Thanh’s age or competence, or lack of military service.

To the

contrary, Plaintiff has indicated that the reason for adding Ms.
Granado as a defendant as power of attorney for Mr. Thanh, was
because, “[u]pon information and belief, Defendant Mr. [Thanh]
may be an incompetent person for whom Defendant Ms. Granado is
authorized to act on his behalf.”

(ECF Nos. 16, 16-9).

If Mr.

Thanh is an incompetent person, default judgment may only be
entered against him if he is represented by a general guardian,
conservator, or other like fiduciary who has appeared.

Ms.

Granado, as Power of Attorney for Defendant Hien Lac Thanh, has
not

appeared

authority

that

in
an

this

case.

individual

Further,
with

power

Plaintiff
of

cites

attorney

for

no
a

defendant is an “other like fiduciary” under Federal Rule of
Civil Procedure 55(b)(2).

3

Accordingly, it is this 20th day of November, 2018, by the
United States District Court for the District of Maryland, hereby
ordered that:
1. Plaintiff’s motion for default judgment (ECF No. 16) BE,
and the same hereby IS, DENIED without prejudice to renewal; and
2.

The

clerk

will

transmit

copies

of

this

Order

parties.

/s/
DEBORAH K. CHASANOW
United States District Judge

4

to

the