Allstate Indemnity Company v. Richey et al
ORDER granting 47 Motion for Default Judgment. Signed by Senior Judge Neal B. Biggers on 9/15/2016. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ALLSTATE INDEMNITY COMPANY
CIVIL ACTION NO. 1:15CV00073-NBB-DAS
TERRY W. RICHEY, II, AND
BNA BANK A/K/A
BANK OF NEW ALBANY
Presently before the court is the plaintiff’s motion for default judgment against defendant
BNA Bank a/k/a Bank of New Albany. Upon due consideration of the motion, the attorney
affidavit, and the applicable rules, the court finds as follows:
This lawsuit arises from an October 22, 2014 fire loss at 254 County Road 1562 in
Tupelo, Mississippi, and the investigation that followed after defendant Terry W. Richey, II,
filed a claim under a policy issued by plaintiff Allstate Indemnity Company. The cause of the
fire was deemed “undetermined” by the investigator, and Allstate denied coverage based on the
fact that Richey had misstated material information in his application for the policy. Allstate
brought this action seeking a declaration from this court that the policy is void in its entirety and
that Richey has no legitimate claim to any proceeds under the policy. Allstate moved for
summary judgment to this effect, and the court has granted the motion in a separate order and
Allstate also named the Bank of New Albany (“BNA”), the apparent mortgagee of the
loss property, as a defendant and asks the court to confirm that the bank has no claim to any
proceeds under the policy. BNA was properly and timely served but did not answer or otherwise
appear to defend this action. Allstate moved for Clerk’s Entry of Default, and default was
entered. Allstate subsequently moved for default judgment.
In ruling on a motion for default judgment, given the defendant’s failure to answer the
complaint, the court accepts all well-pleaded factual allegations in the complaint as true, except
those regarding the amount of damages. United States for Use of M-Co Const., Inc. v. Shipco
General, Inc., 814 F.2d 1011, 1014 (5th Cir. 1987) (“A default judgment is a judgment on the
merits that conclusively establishes the defendant’s liability. But it does not establish the
amount of damages.”). Allstate alleges no actual damages against BNA, however. Allstate
asserts that BNA has but an equitable interest in this matter, if any, and seeks only a declaration
from this court that BNA has no right to any proceeds from the Allstate policy at issue.
“Rule 55(b)(2) does not require the district court to hold either an evidentiary hearing or
oral argument on a motion for default judgment.” Securities and Exchange Comm’n v. First
Financial Group of Texas, Inc., 659 F.2d 660, 669 (5th Cir. 1981). “[V]alid service of process
puts a defendant on notice that failure to file an answer to the complaint subjects him to the risk
of a default judgment.” SUA Ins. Co. v. Buras, 421 Fed. App’x 384, 385 (5th Cir. 2011)
(affirming district court’s entry of default judgment in a declaratory action brought by a
commercial general liability insurer).
The court finds that Allstate is entitled to the relief requested and hereby enters this
Default Judgment against BNA adjudicating that it has no right to any proceeds from the Allstate
policy at issue herein. Allstate further asks the court to certify this judgment as a final judgment
pursuant to Fed. R. Civ. P. 54(b), as this judgment applies to only one party in a multiple-party
action. The relief will be granted.
It is, therefore, ORDERED AND ADJUDGED that the plaintiff’s motion for default
judgment against BNA Bank a/k/a Bank of New Albany is GRANTED, and Default Judgment is
hereby entered against said defendant. Further, the court hereby certifies this judgment as a final
judgment against BNA Bank a/k/a Bank of New Albany pursuant to Fed. R. Civ. P. 54(b).
This, the 15th day of September, 2016.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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