United States District Court, N.D. Mississippi, Greenville Division
SUSAN L. YEAGER, et al. PLAINTIFFS
R.L. BRAND, et al. DEFENDANTS
M. BROWN, UNITED STATES DISTRICT JUDGE
diversity action is before the Court on the plaintiffs'
motion for default judgment. Doc. #15.
December 1, 2017, Susan Yeager and Amelia Nichols, acting as
guardians of their mother Jacoba Dooley, filed a complaint in
this Court against R.L. Brand; Roderick Mitchell; B & B
Contracting Management Services, Inc.
(“B&B”); and New Life Church of Cleveland,
Mississippi (“New Life”). Doc. #1. The complaint
alleges that during the time relevant to this action,
Dooley's mind was beginning to fail and that:
The individual defendants, R.L. Brand and Roderick Mitchell,
scammed and fleeced the ward into buying a lot from New Life
Church which lot was not owned by New Life Church, but rather
was owned by Roderick Mitchell and his wife and which lot was
mortgaged and could not be conveyed free and clear and by
having plaintiff enter into a construction contract with
Brand [and B&B] for him, Brand, to construct a house on
said lot for $140, 000.00 and toward which $140, 000.00
plaintiff paid Brand $70, 000.00 or $105, 000.00 (as may be
proved) for which house Brand had no intention of completing
and for which Brand never did any work except to hip up the
soil for the foundation. Thus Roderick Mitchell and R. L.
Brand conspired together to deprive and defraud the ward of
that to which she was lawfully entitled, a lot with a deed
and a house erected thereon in order to steal from ward the
money she paid for the lot, title to which she never got, and
the money the ward paid to have the house constructed, which
construction was never done. Brand and Mitchell took
advantage of the ward's senility and dementia in so
scamming and fleecing said ward.
Id. at ¶ 50. As relief, the plaintiffs seek:
(1) rescission of the purchase contract with New Life; (2)
rescission of the construction contract with Brand and
B&B; and (3) treble damages under Mississippi's
Vulnerable Persons' Act. Id. at 16.
and New Life were served with a summons and copy of the
complaint on December 2, 2017. Doc. #5; Doc. #6. Brand and
B&B were served on December 5, 2017. Doc. #3; Doc. #4.
Mitchell and New Life filed separate answers to the complaint
on December 20, 2017. Doc. #7; Doc. #8. Neither Brand nor
B&B answered the complaint and, on December 28, 2017, the
plaintiffs moved for entry of default. Doc. #11.
Clerk of the Court entered default against Brand and B&B
on January 2, 2018, and the plaintiffs moved for default
judgment the following day. Doc. #12; Doc. #15. The same day
the plaintiffs moved for default judgment, the Clerk received
from Brand a letter styled, “Answer to
judgement.” Doc. #16. Brand's letter contradicts
most of the facts alleged in the complaint but offers no
excuse for the default and does not request that the default
be set aside.
February 12, 2018, the plaintiffs filed a “Stipulation
of Dismissal as to Two Defendants Only.” Doc. #28. The
stipulation, which is signed by Brand (on his own behalf and
on behalf of B&B), counsel for the plaintiffs, Mitchell,
and New Life, stipulates to the dismissal with prejudice of
Mitchell and New Life. Id. Over the next week, the
plaintiffs, in support of their motion for default judgment,
filed two affidavits, a memorandum brief, and a letter from a
medical doctor opining on Dooley's mental condition. Doc.
#31; Doc. #32; Doc. #34; Doc. #35.
to “Rule 55 of the Federal Rules of Civil Procedure,
federal courts have the authority to enter a default judgment
against a defendant who has failed to plead or otherwise
defend upon motion of the plaintiff.” J & J
Sports Prods., Inc. v. Morelia Mexican Rest., Inc., 126
F.Supp.3d 809, 813 (N.D. Tex. 2015). “Under Fifth
Circuit law, there are three steps to obtaining a default
judgment: first, default by the defendant; second,
clerk's entry of default; and third, entry of a default
judgment.” Gray v. MYRM Holdings, L.L.C., No.
A-11-cv-180, 2012 WL 2562369, at *3 (W.D. Tex. June 28, 2012)
(citing N.Y. Life. Ins. Co. v. Brown, 84 F.3d 137,
141 (5th Cir. 1996)) (emphases omitted). The first two steps
have been satisfied here. Thus, the only issue left to
consider is whether default judgment should be
entered. In making this determination, the Court
conducts a three-question analysis: (1) “whether the
entry of default judgment is procedurally warranted;”
(2) “whether there is a sufficient basis in the
pleadings for the judgment;” and (3) “what form
of relief, if any, the plaintiff should receive.” J
& J Sports, 126 F.Supp.3d at 814.
determining whether a default judgment is procedurally
warranted, a court should consider: (1) “whether
material issues of fact are at issue;” (2)
“whether there has been substantial prejudice;”
(3) “whether the grounds for default are clearly
established;” (4) “whether the default was caused
by a good faith mistake or excusable neglect;” (5)
“the harshness of a default judgment;” and (6)
“whether the court would think itself obliged to set
aside the default on the defendant's motion.”
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir.
where as here, a party fails to respond to or answer the
complaint, there are no material issues of fact at issue.
See John Perez Graphics & Design, LLC v. Green Tree
Inv. Grp., Inc., No. 3:12-cv-4194, 2013 WL 1828671, at
*3 (N.D. Tex. May 1, 2013) (“Green Tree has not filed a
responsive pleading or otherwise appeared in this case, and
thus has not contested any facts presented in Plaintiff's
a failure to respond causes prejudice because “failure
to respond … threatens to bring the adversary process
to a halt, effectively prejudicing Plaintiff's interests
in pursuing its rights afforded by law.” Id.
as mentioned above, the grounds for default (default and
entry of default) have been clearly ...