Myers v. Oury et al
Filing
102
ORDER denying 74 Motion for Default Judgment; granting in part and denying in part 101 Motion to Strike. Signed by U.S. District Judge Karen E. Schreier on 6/2/2014. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
HUDSON E. MYERS,
Plaintiff,
vs.
JAMES OURY, M.D.,
PAUL M. ORECCHIA, M.D.,
PAUL A. BORMES, M.D.,
DAMON R. BECKLOFF,
JOSEPH L. TUMA, M.D., F.A.C.C.,
HEATHER G. CWACH, M.D.,
SARFRAZ R. AHMAD, M.D.,
CAROL DUGAN, CNP,
RAPID CITY REGIONAL HOSPITAL,
INC.,
RUSHMORE HEART INSTITUTE, INC.,
CARDIOLOGY ASSOCIATES, P.C.,
REGIONAL HEALTH NETWORK, INC.,
REGIONAL HEALTH PHYSICIANS, INC.,
REGIONAL HEALTH, INC.,
JAMES H. OURY, M.D. MEDICAL
CORPORATION, P.C.,
PAUL A. BORMES, M.D., P.C., and
BLACK HILLS NEUROLOGY, LLP.
Defendants.
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CIV. 12-5072-KES
ORDER
There are two pending motions before the court. First, Hudson Myers moves
for default judgment against James Oury, M.D., James H. Oury, M.D. Medical
Corporation, P.C., Rushmore Heart Institute, Inc., and Cardiology Associates, P.C.
Docket 74. Second, Myers moves to strike or reject two docket entries—dockets 94
and 95—filed by Oury, Oury Medical Corporation, and Rushmore Heart Institute
(collectively, the Oury defendants). Docket 101. For the following reasons, Myers’s
motion for default judgment (Docket 74) is denied and his motion to strike (Docket
101) is granted in part and denied in part.
DISCUSSION
Entries of default were filed by the clerk of court against defendants Oury and
Oury Medical Corporation on January 30 and 31, 2013, respectively. Dockets 50, 52.
Oury moved to set aside the default on February 20, 2013. Docket 54. The court
denied Oury’s motion because he failed to show good cause. Docket 61.
Additional entries of default were filed by the clerk of court against defendants
Rushmore Heart Institute and Cardiology Associates on October 9, 2013. Docket 71.
On November 8, 2013, Cardiology Associates moved to set aside the default entered
against it. Docket 77. The court granted Cardiology Associate’s motion, finding good
cause existed. Docket 97.
Myers now seeks entry of a default judgment against defendants Oury, Oury
Medical Corporation, Rushmore Heart Institute, and Cardiology Associates. Because
the court set aside the entry of default against Cardiology Associates, Myers’s motion is
denied as moot with respect to Cardiology Associates.
The court now considers the motion as it pertains to the Oury defendants. As a
general rule, “when one of several defendants who is alleged to be jointly liable
defaults, judgment should not be entered against that defendant until the matter has
been adjudicated with regard to all defendants, or all defendants have defaulted.” 10A
Charles Alan Wright, Arthur Miller, Mary Kay Kane, Richard Marcus & Adam
Steinman, Federal Practice and Procedure § 2690 (3d ed. 2014). See also Westchester Fire Ins.
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Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (“It has long been established that,
where there are several defendants, the transgressions of one defaulting party should
not ordinarily lead to the entry of a final judgment, let along a judgment fatal to the
interests of other parties.”) (citing Frow v. De La Vega, 82 U.S. 552, 554 (1872)). Here,
Myers has alleged professional negligence against all defendants for the same injury,
assumedly claiming each defendant is jointly and severally liable. Myers has also alleged
certain defendants are vicariously liable for the acts or omissions of defendant Oury.
In other words, Myers has alleged that Oury’s professional negligence imposes
negligence liability on the other defendants. Because liability here is joint (and perhaps
several) and because whether some defendants are liable is interrelated to Oury’s
liability, the court finds it would be premature to enter judgment against the Oury
defendants. Entering a default judgment against the Oury defendants could possibly be
fatal to the interests of the non-defaulting defendants and may lead to a logically
inconsistent adjudication due to the joint and vicarious liability allegations found in the
complaint. For these reasons, Myers’s motion for entry of default judgment is denied
without prejudice. See Frow, 82 U.S. at 554 (noting that the possibility of inconsistent
adjudications is reason to deny entering a default judgment).
Myers also moves to strike or asks the court to reject docket entries 94 and 95
filed by the Oury defendants. Docket 94 is the Oury defendants’ proposed answer to
Myers’s complaint. Docket 95 is the Oury defendants’ attempt to join in Regional
defendants’ opposition to the motion for default judgment. The Oury defendants have
not responded to the motion.
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Docket entries 94 and 95 were signed and filed by Oury pro se. The Eighth
Circuit Court of Appeals has unambiguously stated that corporate defendants must be
represented by counsel. See, e.g., United States v. Van Stelton, 988 F.2d 70 (8th Cir. 1993).
Without counsel, a corporate defendant cannot proceed. See Ackra Direct Marketing
Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (noting that “the law does not
allow a corporation to proceed pro se”). Because Oury is the only individual who signed
and filed the two papers and because Oury is not a licensed lawyer, the court
disregards the two entries as far as they pertain to the two corporate entities—Oury
Medical Corporation and Rushmore Heart Institute.
Next, the court considers the documents with respect to Oury, who is
representing himself pro se. Docket 94 is Oury’s proposed answer to Myers’s
complaint. Oury must have the court set aside the entry of default before the answer is
effective. The court has already considered an attempt by Oury to set aside the default
and has denied his request because he failed to show good cause. Docket 61. Further,
Oury has failed to put forth new facts that would support a finding of good cause,
which is necessary to set aside the default. Therefore, Oury remains in default. That
said, the court is unaware of a rule that prohibits a party in default from filing a
proposed answer. See Jefferson v. La. Dep’t of Pub. Safety & Corr., 401 Fed. App’x 927,
2010 WL 4608795 (5th Cir. Nov. 15, 2010) (“Rule 55(c) makes no reference to a
party’s answer and cannot be read to prohibit a party in default from filing a proposed
answer.”). Therefore, the court will not strike Docket 94 as it pertains to Oury.
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Lastly, Docket 95 is Oury’s attempt to join in Regional defendants’ opposition
to the motion for default judgment. As discussed above, Myers’s motion for default
judgment is denied and this determination is made independent of Docket 95.
Therefore, Myers’s motion to strike or reject Docket 95 is moot. Accordingly, it is
ORDERED that Myers’s motion for default judgment (Docket 74) is denied
without prejudice.
IT IS FURTHER ORDERED that Myers’s motion to strike or reject (Docket
101) is granted in part and denied in part in accordance with this order.
Dated June 2, 2014.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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