Counts v. Berrens et al

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of Third Party Plaintiffs for default judgment against Third Party Defendant Mercedes Koster in the amount of $75,000 is GRANTED. (Doc. No. 32 .) All claims against all parties ha ving been resolved, a separate final Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on February 29, 2016. (Certified copy of order mailed to Mercedes Koster, 10245 Flamewood Road, Cadet, MO 63630.) (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANISHA COUNTS,

)
)
Plaintiff,
)
)
vs.
)
)
ELIZABETH BERRENS and
)
SCHNEIDER NATIONAL CARRIERS,
)
INC.,
)
)
Defendants / Third Party Plaintiffs, )
)
vs.
)
)
MERCEDES KOSTER,
)
)
Third Party Defendant.
)

Case No. 4:15CV00148 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendants /Third Party Plaintiffs’ motion for
default judgment against Third Party Defendant Mercedes Koster. For the reasons set
forth below, the motion shall be granted.
BACKGROUND
On January 16, 2015, Defendants Elizabeth Berrens and Schneider National
Carriers, Inc. (“SNCI”), removed this action to this Court based on diversity jurisdiction.
The case arises out of a motor vehicle accident that occurred on February 24, 2014, Plaintiff
alleged that Berrens was negligent when a vehicle Berrens was operating on behalf of SNCI
collided with a vehicle in which Plaintiff was a passenger, resulting in injury to Plaintiff.
Plaintiff alleged “serious” injury to various parts of her body, diminished function of

various organs, and “pain of mind and body.” She alleged that she had incurred medical
expenses of approximately $38,000 to the date of the amended complaint and would incur
additional such expenses in the future. In the Notice of Removal, Defendants asserted that
the amount in controversy exceeded the jurisdictional amount of $75,000.
On May 1, 2015, Defendants filed a Third Party Complaint against Koster for
indemnity and/or contribution. As Third Party Plaintiffs, they alleged that, at the time of
the accident at issue, Koster was the driver of the vehicle in which Plaintiff was a passenger
and that Koster’s negligence was the cause of the accident.
At a mediation conference held on August 11, 2015, Plaintiff and Defendants / Third
Party Plaintiffs reached a settlement for an amount of $75,000. The mediator’s report
indicates that these parties participated in mediation in good faith. (Doc. No. 37.) On
August 27, 2015, Defendants/Third Party Plaintiffs filed a motion for default judgment
against Koster, and on August 31, 2015, they filed a motion for Clerk’s entry of default
against Koster. On September 1, 2015, the Clerk of Court entered an order of default
against Koster. The docket sheet reflects that a copy of the order of default was mailed to
Koster at the address listed on the return of service, and it was presumably received, as it
was not returned undeliverable. On September 2, 2015, Plaintiff filed a motion to dismiss
her claims against Defendants, based on the settlement reached between these parties.
On September 17, 2015, Defendants/Third Party Plaintiffs filed evidentiary support
for their motion for default judgment against Koster in the form of (1) an affidavit by Berens
in which she attests that at the time of the accident she was operating her vehicle in a
responsible manner, and (2) an affidavit of a senior claims adjuster for SNCI’s auto liability
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insurer, attesting to the settlement of Plaintiff’s claim against Defendants/Third party
Plaintiffs for $75,000 and Plaintiff’s release and discharge of all claims against Berrens,
SNCI, and Koster. A copy of the “Settlement Agreement and Release” is attached to the
affidavit. It was signed by Plaintiff on September 10, 2015, and includes the following
paragraph:
It is understood between the parties that this Release only pertains to the
claims by [Plaintiff] against the Released Parties, and that the Released
Parties Third Party claim for contribution against Mercedes Koster . . . shall
remain pending in [the present] lawsuit and shall not be affected by anything
set forth in this Release.
(Doc. No. 40-4 at 2.) On September 21, 2015, the Court granted Plaintiff’s motion to
dismiss her claims against Defendants/Third Party Plaintiffs.
DISCUSSION
Under Missouri law, a settling tortfeasor may seek contribution/indemnity from a
non-settling tortfeasor where, as here, the settlement agreement discharges the plaintiff’s
claims against the non-settling tortfeasor. See Cardinal Glennon Hosp. v. Am. Cyanamid
Co., 997 S.W.2d 42, 44 (Mo. Ct. App. 1999) (explaining that a settling defendant is barred
from seeking contribution against another defendant unless the settling defendant has
discharged the liability of that defendant); Mo. Rev. Stat. § 537.060.
A defaulting party is deemed to have admitted all well-pleaded factual allegations in
the complaint that do not relate to the amount of damages. Marshall v. Baggett, 616 F.3d
849, 852 (8th Cir. 2010). As the Eighth Circuit has explained, “[i]f the court determines
that the defendant is in default, his liability to the plaintiff is deemed established and the
plaintiff is not required to establish his right to recover . . . . If the default is established, the
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defendant has no further standing to contest the merits of plaintiff’s right to recover.”
Brown v. Kenron Aluminum & Glass Corp., 477 F.2d 526, 531 (8th Cir. 1973).
Taking the allegations in the Third Party Complaint as true, and based on the record
before the Court, the Court concludes that Defendants/Third Party Plaintiffs are entitled to
default judgment against Koster in the amount of $75,000. There is nothing in the record
to suggest that the amount of the settlement is unreasonable. Cf. Nussbaum v. Tech. Int’l
Supply Corp., No. 5:11CV2322, 2012 WL 5335292, at *3 (N.D. Ohio Oct. 5, 2012) (Rep. &
Recommendation, adopted, No. 5:11 CV 2322, 2012 WL 5306243 (N.D. Ohio Oct. 26,
2012) (granting a third party plaintiff default judgment against the third party defendant in
the amount of a settlement between the plaintiff and the third party plaintiff that appeared
reasonable)).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the motion of Third Party Plaintiffs for default
judgment against Third Party Defendant Mercedes Koster in the amount of $75,000 is
GRANTED. (Doc. No. 32.)
All claims against all parties having been resolved, a separate final Judgment shall
accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of February, 2016.
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