Chesteen v. Gibson et al

Filing 43

ORDER granting 42 Motion for Default Judgment. Signed by District Judge Sharion Aycock on 3/30/2018. (psk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
GEORGE V. CHESTEEN, as Trustee of
GREEN HILLS REFUGE IRREVOCABLE
TRUST, and as EXECUTOR of the
VERNON R. CHESTEEN ESTATE
V.

PLAINTIFF
CAUSE NO.: 1:13CV142-SA-RP

STEVEN R. GIBSON, and
STEVEN R. GIBSON, P.C.

DEFENDANTS
DEFAULT JUDGMENT

This case was filed in the Northern District of Mississippi on August 5, 2013. After
summons were returned executed on both defendants on August 15, 2013, the Clerk of Court
entered default as to both of them. Plaintiff moved for default judgment on a sum certain, and the
Clerk entered that Default Judgment on December 12, 2013.
Some fifteen months later, on March 17, 2015, the Plaintiff filed a Motion to Set Aside
Default on the basis that he was unable to enroll the judgment in Colorado. In particular, Plaintiff
noted that the Colorado court refused to acknowledge the default as the service to the Defendants
by certified mail failed to notate that it was “restricted delivery,” thus, the Clerk had no
jurisdiction to enter default. Because service was improper, the Plaintiff sought to reopen the
Northern District of Mississippi action, correctly serve process, and proceed with the case.
The Court set aside the default judgment, reopened the case, and reissued summons.
Plaintiff issued those summons by restricted delivery certified mail. Initially, Defendant Steven
Gibson returned that summons “refused.” The magistrate judge assigned this case extended
Plaintiff’s time to serve process, summonses were reissued, and Plaintiff was able to return them
both executed in May of 2016.

In June of 2016, the Court entered an Order to Show Cause requiring Steven Gibson to
show cause why a default should not be entered against Steven R. Gibson, P.C. That entity had
failed to obtain licensed counsel of record to represent the corporation. The Magistrate Judge
warned that if Steven R. Gibson, P.C., “fails to obtain counsel and have its attorney enter an
appearance in this court by July 14, 2016, a default will be entered against it, which could result
in entry of a default judgment against Steven R. Gibson, P.C.” Chesteen v. Gibson, Cause No.:
1:13cv142-SA-SAA [32] (N.D. Miss. June 15, 2016).
No attorney of record entered an appearance on behalf of Steven R. Gibson, P.C.
Instead of filing an Answer, Defendant Steven R. Gibson filed a Motion to Dismiss.
Gibson claimed that Plaintiff failed to bring his claims within the three year statute of limitations
provided by Mississippi Code Section 15-1-49. Steven R. Gibson, P.C., did not join in that
motion and has otherwise failed to assert that affirmative defense.
Default Judgment Standard
The Court may enter default judgment pursuant to Federal Rule of Civil Procedure 55
“when a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise.” FED. R. CIV. P. 55. The
Fifth Circuit has held, however, that “Rule 55(b)(2) does not require the district court to hold
either an evidentiary hearing or oral argument on a motion for a default judgment,” when the
party in default has had “sufficient notice of the possibility that a default judgment would be
entered against them.” Sec. & Exch. Comm’n v. First Fin. Grp. of Texas, Inc., 659 F.2d 660, 669
(5th Cir. 1981).

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Discussion and Analysis
Steven R. Gibson, P.C. has been duly served with the Summons and Complaint in this
cause. An Entry of Default has been entered in this case [41], and Defendant Steven R. Gibson,
P.C., has otherwise failed to plead or defend this action. Steven R. Gibson, P.C. has exhibited a
history of not responding to and not complying with the Court’s orders regarding obtaining
counsel and appearing in this action. It has been warned of the consequences, including entry of
default judgment, for failing to obtain counsel, failing to comply with the Court’s orders, and
failing to defend against the allegations. Sanctions other than default judgment would be
meaningless in light of this history. Steven R. Gibson, P.C.’s conduct in this litigation is not the
result of good faith or excusable neglect. The Court has given this Defendant ample opportunity
to defend itself in this action, and it has failed to do so.
After due consideration of the Motion for Default Judgment, the record, and relevant
legal authorities, the Court finds that Plaintiff’s motion is well taken and should be granted.
Based on the affidavit submitted and the entire record, the Court agrees with Plaintiff’s
calculation of damages. The Court hereby enters a default judgment against Steven R. Gibson,
P.C., in the amount of $539,694.00, plus post-judgment interest at the legal rate until said
Default Judgment is paid in full.
SO ORDERED, this the 30th day of March, 2018.
/s/ Sharion Aycock__________
U.S. DISTRICT JUDGE

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