SPV-LS, LLC v. Transamerica Life Insurance Company

Filing 36

ORDER. The Clerk of Court shall enter the default requested pursuant to Federal Rule of Procedure 55(a) against Nachman Bergman, as Trustee of The N Bergman Insurance Trust dated December 18, 2006, and Malka Silberman, as Successor Trustee of the N Bergman Insurance Trust dated December 18, 2006. See Order for further information. Signed by U.S. District Judge Lawrence L. Piersol on 9/22/14. (DJP)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

SEP 22 2014

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SPV-LS, LLC,
CIV 14-4092
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Plaintiff,
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vs.
ORDER
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TRANSAMERICA LIFE INSURANCE
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COMPANY,
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Defendant and
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Third-Party Plaintiff,
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vs.
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NACHMAN BERGMAN, as Trustee
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of The N Bergman Insurance Trust
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dated December 18, 2006;
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MALKA SILBERMAN, as Successor
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Trustee ofThe N Bergman Insurance
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Trust dated December 18, 2006;
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LIFE TRADING TRUST,
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dated August 8, 2007;
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T-LEG, LLC, alk/a TLEG LLC;
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FINANCIAL LIFE SERVICES, LLC;
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Spy II LLC; and
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THE REPRESENTATIVE OF THE
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ESTATE OF NANCY BERGMAN,
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Third-Party Defendants.
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PlaintiffSPV -LS, LLC, and Third-Party Defendants in this interpleader action, Life Trading
Trust, Financial Life Services LLC, and SPY II LLC, have requested that default be entered against
the Third-Party Co-Defendants and co-claimants, The N Bergman Insurance Trust dated
December 18, 2006, Nachman Bergman as Trustee of The N Bergman Insurance Trust dated
December 18, 2006, and MaIka Silberman, as Successor Trustee ofThe N Bergman Insurance Trust

dated December 18,2006. The Third-Party Complaint appears to be suing Nachman Bergman and
MaIka Silberman in their capacities as Trustee of The N Bergman Insurance Trust and Successor
Trustee of The N Bergman Insurance Trust dated December 18, 2006, and not in their individual
capacities.

Nachman Bergman, as Trustee ofThe N Bergman Insurance Trust dated December 18,2006,
and MaIka Silberman, as Successor Trustee ofThe N Bergman Insurance Trust dated December 18,
2006, have attempted to file on behalfofthe Trusts a document entitled "Answer and Cross Claims
ofNachman Bergman, and MaIka Silberman for themselves, as former and current Trustees ofThe
N Bergman Insurance Trust," Doc. 34.

DISCUSSION
Plaintiff in an interpleader action such as this is entitled to request that a default be entered
against the Third-Party Defendants even though Plaintiffhas not pled over against those Third-Party
Defendants.

See,~,

Sun Life Assurance Co. v. Conroy, 431 F.Supp.2d 220, 226 (D.R.I. 2006)

(citing cases); Amoco Prod. Co. v. Aspen Group, 59 F.Supp.2d 1112, 1116 (D.Colo. 1998) (Rule
55(d) applies regardless of"whether the party entitled to the judgment by default is a plaintiff, a third­
party plaintiff or a party who has pleaded a cross-claim or counterclaim).

The Court does not reach the conclusion of whether the late filed Answer by Trustee
Nachman Bergman and Successor Trustee MaIka Silberman, each on behalfofthe The N Bergman
Insurance Trust, should be filed despite it being beyond time. The reason is that neither Nachman
Bergman nor MaIka Silberman has been shown to be a member ofthe Bar ofthis or any other State.
A non-lawyer trustee may not appear in Court on behalfofa trust. See Knoefler v. United Bank of
Bismarck, 20 F.3d 347,348 (8th Cir. 1994). As a result, the Clerk of Courts is directed to not file
the Answer and Cross Claims of Nachman Bergman and MaIka Silberman as former and current
Trustees ofThe N. Berman Insurance Trust and enter a Default Judgment against Nachman Bergman,
as Trustee ofThe N Bergman Insurance Trust dated December 18, 2006, and MaIka Silberman, as
Successor Trustee ofThe N. Bergman Insurance Trust dated December 18, 2006.

2

The Court observes that on examining the interpleader Complaint by Defendant Transamerica
Life Insurance Company that Nachman Bergman and Maika Silberman might, iftheir allegations are
correct, stand to participate personally in the proceeds of the life insurance policy in question.
Accordingly, it appears to the Court on a preliminary basis that as individuals, Nachman Bergman and
Maika Silberman may be necessary parties to this litigation.

IT IS THEREFORE ORDERED AS FOLLOWS:
1.

That the Clerk of Court shall enter the default requested pursuant to Federal
Rule ofCivil Procedure 55(a) against Nachman Bergman, as Trustee ofThe
N Bergman Insurance Trust dated December 18, 2006, and Maika Silberman,
as Successor Trustee ofThe N Bergman Insurance Trust dated December 18,
2006. The parties seeking the default judgment shall then apply to the Court
therefor. FED.R.CIY.P.55(b)(2).

2.

That the pleading that Nachman Bergman, as Trustee, and Maika Silberman,
as Successor Trustee, ultimately brought forward is stricken and not entered
as neither Nachman Bergman, as Trustee, nor Maika Silberman, as Successor
Trustee, may appear and make Answer and other pleadings for The N
Bergman Insurance Trust dated December 18, 2006.

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Dated this ~ day of September, 2014.

BY THE COURT:

ATTEST:
JOSEPH HAAS, CLERK

awrence L. Piersol
United States District Judge

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