Opearting Engineers Local No. 147 Annuity Fund v. Carter et al

Filing 30

ORDER: The Report and Recommendation (Doc. No. 26 ) is ADOPTED. Amber Carter's Motion for Default Judgment (Doc. No. 17 ) is GRANTED. The Annuity Fund is directed to pay Carter the proceedings of the annuity. No attorney's fees are awar ded to any party. The Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure 58. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/26/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
OPERATING ENGINEERS LOCAL 147
ANNUITY FUND,
Plaintiff,
v.
AMBER CARTER, et al.,
Defendant.

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No. 3:17-cv-01611
CHIEF JUDGE CRENSHAW

ORDER
Before the Court is a Report and Recommendation from the Magistrate Judge,
recommending the Court grant Amber Carter’s Motion for Default Judgment against the remaining
defendants. (Doc. No. 26.) Joe Neel, a nonparty in this case who claims to be an advocate for
Virginia Neel, filed timely objections. (Doc. No. 27.) Virginia Neel cannot be represented by a
person who is not an attorney. 28 U.S.C. § 1654; see Eagle Assoc. v. Bank of Montreal, 926 F.2d
1305, 1308 (2d Cir. 1991) (holding that § 1654 “does not allow for unlicensed laymen to represent
anyone other than themselves”). Nonetheless, out of an abundance of caution, the Court has
considered Joe Neel’s objections as if they were from Virginia Neel. For the following reasons,
the Objections are overruled and the Report and Recommendation is adopted.
Under Federal Rule of Civil Procedure 55(c), the Court may set aside the Clerk’s Entry of
Default (Doc. No. 16) for good cause. Factors to consider when determining whether good cause
exists include “whether (1) the default was willful, (2) a set-aside would prejudice the plaintiff,
and (3) the alleged defense was meritorious.” United Coin Meter Co., Inc. v. Seaboard Coastline

RR., 705 F.2d 839, 844 (6th Cir. 1983) (citing Medunic v. Lederer, 533 F.2d 891, 893 (3d Cir.
1976)). Neel’s two objections go to prejudice and whether she has a meritorious defense.
This is an interpleader action to determine which of the three defendants is entitled to the
proceeds from Eric Hazelwood’s annuity fund. (Doc. No. 1.) All parties agree that upon
Hazelwood’s death, if there is no designee for the benefits, Hazelwood is deemed to have
designated: “(a) his surviving spouse; or if none (b) his surviving children, in equal shares; or if
none (c) his surviving parents, in equal shares; or if none (d) his surviving brothers and sisters, in
equal shares; or if none (e) his estate; in that order of priority, as his beneficiary.” (Doc. No. 1 at
2.)
It appears that (a) through (d) do not apply because none exist. Although Virginia Neel was
the biological parent of Hazelwood, Cecil and Imogene Boone subsequently legally adopted him,
making them the “surviving parents” under subsection (c). Because Cecil and Imogene Boone
predeceased Hazelwood, the Monroe County Commission in West Virginia named Carter the sole
beneficiary of Hazelwood’s estate (Doc. No. 29-1 at 1), and therefore under subsection (e), she is
entitled to the annuity benefits.
Neel objects that she should be counted as a “surviving parent” under subsection (c)
because she is Hazelwood’s biological mother who raised him. (Doc. No. 27.) She argues that her
parents, Cecil and Imogene Boone, adopted Hazelwood because Cecil Boone was terminally ill
with cancer, and Neel wanted Hazelwood to receive Cecil Boone’s social security benefits. (Id. at
2.) In other words, while Cecil and Imogene Boone were the adoptive parents so that Hazelwood
could get money, Neel did not stop raising her child as the mother. (Id.) This can be a meritorious
defense only if “there is some possibility that the outcome of the suit after a full trial will be
contrary to the result achieved by default.” Dassault Systemes, SA v. Childress, 663 F.3d 832, 843

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(quoting United States v. $22,050.00 U.S. Currency, 595 F.3d 318, 326 (6th Cir. 2010)). Here, the
controlling West Virginia law is clear: “Upon the entry of such order of adoption, any person
previously entitled to parental rights . . . shall be divested of all legal rights, including the right of
inheritance from or through the adopted child under the statutes of descent and distribution from
the state . . . .” In re Hunter H., 744 S.E.2d 228, 232 (W. Va. 2013) (citing W. Va. Code § 48-22703(a)). Under Cecil and Imogene Boone’s adoption of Hazelwood, Neel was divested of her
parental rights.
Neel contends that Hazelwood’s will is still being probated under protest. (Doc. No. 27 at
2.) However, Carter attached a certified letter from the Clerk of the Monroe County Commission
stating that the Commission approved the final settlement of Hazelwood’s estate on January 3,
2018, and the estate was ordered closed at that time. (Doc. No. 29-1 at 1.) This objection is
overruled.
Neel has not given a reason for her failure to appear prior to the Clerk’s Entry of Default,
nor has she shown any meritorious defense. Although there is no allegation that Carter or the
Pension Plan likely would be severely prejudiced by any delay, the other two factors outweigh
because there appears no reason to delay entry of judgment. Good cause does not exist to set aside
the Clerk’s Entry of Default.
Accordingly, the Report and Recommendation (Doc. No. 26) is ADOPTED. Amber
Carter’s Motion for Default Judgment (Doc. No. 17) is GRANTED. The Annuity Fund is directed
to pay Carter the proceedings of the annuity. No attorney’s fees are awarded to any party. The
Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure 58.

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IT IS SO ORDERED.
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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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