Smith v. Union National Life Insurance Company et al
ORDER denying as moot 195 Motion to Strike ; granting 212 Motion for Leave Signed by District Judge Keith Starrett on 5/11/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JEANETTA SMITH, A/K/A JEANETTE
CIVIL ACTION NO. 1:15-CV-9-KS-RHW
UNION NATIONAL LIFE INSURANCE CO., et al.
UNION NATIONAL LIFE INSURANCE CO.
SANDRA CARTER, et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Strike Answer to Third Amended
Complaint (“Motion to Strike”)  filed by Plaintiff Jeanette Smith and the Motion for Leave
to File Answer (“Motion for Leave”)  filed by Defendant Union National Life Insurance
Company. After reviewing the submissions of the parties, the record, and the applicable law, the
Court finds that the Motion for Leave  is well taken and should be granted. The Court further
finds that the Motion to Strike  should be denied as moot.
Plaintiff Jeanette Smith’s (“Plaintiff”) filed her action on January 13, 2015, claiming that
she was denied life insurance benefits that were duly owed to her under a $10,000 life insurance
policy taken out by Daisy Carter. This policy was issued by Union National Life Insurance
Company (“Union National”), but her complaints about the failure to pay benefits were answered
by a letter from “Kemper Home Service Companies.” In her Third Amended Complaint ,
Plaintiff brings claims against Union National, Kemper Corporation (“Kemper”), Kemper
Corporate Services, Inc. (“KCS”), and United Insurance Company of America (“United”)
Daisy Carter died on May 30, 2014. Marshall Funeral Home (“Marshall”) initiated a claim
on Plaintiff’s behalf on June 1, 2014, and Union National represented to Marshall that the proper
beneficiary under the policy was Sandra Carter, the decedent’s daughter. Plaintiff wrote to Union
National and received a letter on July 25, 2014, from Tanya Bolen, “Senior Executive Assistant”
for “Kemper Home Service Companies” stating that there was “no paperwork on file stating the
beneficiary was to be changed” to Plaintiff. (Third Amended Complaint  at ¶ 23.) The policy
limits were paid out to Sandra Carter, with $8,446.58 deducted to pay Marshall for its funeral
services and $766.71 deducted for a loan previously taken on the policy. In total, Sandra Carter
received $786.71 under the policy. Plaintiff subsequently filed suit in January 2015.
On June 29, 2016, Union National tendered to Plaintiff a check for $10,398.96 in additional
policy benefits. Plaintiff claims that this amount is insufficient and that more benefits are owed to
her. Plaintiff filed her original Complaint  on January 13, 2015. She amended this complaint
three times, filing her Amended Complaint  on January 15, 2015 and her Second Amended
Complaint  and Third Amended Complaint  on September 16, 2016. The action was
stayed on October 13, 2016, and all case management deadlines were suspended. (See Text Only
Order, October 13, 2016.)
On February 14, 2017, the Court entered its Order  granting in part and denying in
part Union National’s Motion to Dismiss  and granting Kemper, KCS, and United’s Motion
to Dismiss . On February 24, 2017, the Court lifted its stay of the proceedings and permitted
parties to conduct discovery. (See Order  at p. 3.) No new case management deadlines have
been set by the Court.
On March 23, 2017, Union National filed its Answer  to Plaintiff’s Third Amended
Complaint . Plaintiff moved to strike the Answer  because it was untimely. Union
National subsequently filed its Motion for Leave .
Motion for Leave 
A responsive pleading must be served within fourteen days of a denial of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).1 See Fed. R. Civ. P. 12(a)(4)(A). If a
responsive pleading is not filed within this time, “the court may, for good cause, extend the
time . . . on motion made after the time has expired if the party failed to act because of excusable
neglect.” Fed. R. Civ. P. 6(b)(1). The Fifth Circuit has noted that the district court “enjoys broad
discretion to grant or deny an extension” and that “the excusable neglect standard is intended and
proven to be quite elastic in its application.” Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012)
(internal quotations and citations omitted). The circuit court points to four guiding factors in using
this discretion: “(1) the possibility of prejudice to the other parties, (2) the length of the applicant’s
delay and its impact on the proceeding, (3) the reason for the delay and whether it was within the
control of the movant, and (4) whether the movant acted in good faith.” Id. (internal quotations
and citations omitted.
Union National’s Answer  was filed either 23 days or 13 days late, depending on
whether the fourteen-day deadline began to run when the Court issued it ruling on the Motion to
Dismiss  or when the Court lifted the stay on the proceedings. The Court need not decide
which is proper, as it would not change its analysis.
The Court does not consider the untimeliness of the previous Motion to Dismiss , as that issue was waived by
Plaintiff through the lack of an objection.
The possibility of prejudice from allowing Union National to file its Answer  is low,
as nothing in the pleading changes the course of the litigation. Plaintiff attempts to argue that the
additional affirmative defenses prejudice her, but the only new defense pleaded is mistake, which
is reasonable at this stage of the litigation, as all parties now appear to agree that Plaintiff was the
proper beneficiary of the policy, a fact which was initially denied by Union National because it
could not locate the change of beneficiary form.
The length of delay, whether 13 or 23 days, has a negligible impact on these proceedings,
as no new scheduling deadlines have been set. The reason for the delay was Union National’s
attorney calendaring error, which was not within the control of Union National and which has been
found by other courts in this circuit to be excusable neglect. See, e.g., Stotter v. Univ. of Tex. at
San Antonio, 508 F.3d 812, 820 (5th Cir. 2007). Finally, there appears to be no evidence of bad
faith on the part of Union National.
The Court would further note that not allowing Union National to file an answer to
Plaintiff’s Third Amended Complaint  would further delay these proceedings and waste
judicial resources. If the Court were to strike Union National’s Answer , Plaintiff would
undoubtedly move for an entry of default on those grounds and then for default judgment.
“[M]odern federal procedure favors trials on the merits,” and the Court, when deciding whether to
set aside default, “consider[s] whether the default was willful, whether setting it aside would
prejudice the adversary, and whether a meritorious defense is presented.” United States v. One
Parcel of Real Prop., 763 F.2d 181, 183 (5th Cir. 1985) (citations omitted). Furthermore,
“[d]efault judgments are a drastic remedy, not favored by the Federal Rules and resorted to by
courts only in extreme situations.” Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (quoting Sun
Bank of Ocala v. Pelican Homestead & Savings Ass’n, 874 F.2d 274, 276 (5th Cir. 1989)
(alteration in original).
This case has been vigorously litigated by both sides until this point, and there have been
multiple pleadings in this action by both Union National and Plaintiff. Even if Plaintiff were to
obtain an entry of default against Union National based on this procedural timing issue, the Court
would likely set it aside and not award default judgment. It is in the interests of judicial economy,
then, to grant the Motion for Leave  and avoid any further delay.
Therefore, for the reasons stated, the Court finds that the Motion for Leave  should
Motion to Strike 
Because Union National has been granted leave to file its Answer, the Motion to Strike
 its Answer  will be denied as moot.
IT IS THEREFORE ORDERED AND ADJUDGED that Union National’s Motion for
Leave  is granted.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike  is
denied as moot.
SO ORDERED AND ADJUDGED on this the
day of May, 2017.
UNITED STATES DISTRICT JUDGE
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