United States District Court, N.D. Mississippi, Greenville Division
OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE.
declaratory judgment action is before the Court on National
Security Fire & Casualty Insurance Company's motion
for default judgment against Demetrius Nellum. Doc. #37.
11, 2017, National Security Fire & Casualty Insurance
Company filed a complaint for declaratory judgment against
Jeffery Townsend, praying for a judgment declaring a
homeowner's insurance policy it issued on property in
Greenwood, Mississippi, “void ab initio”
due to material misrepresentations in the application for
insurance. Doc. #1. On September 21, 2017, with leave
of the Court, National Security filed an amended complaint
adding as defendants Demetrius Nellum and Nina Olugu. Doc.
#18. Nellum was personally served on September 25, 2017. Doc.
December 20, 2017, the Clerk of the Court issued a notice
that Nellum's answer was past due. Doc. #32. The next
day, National Security filed a motion for entry of default
against Nellum. Doc. #33. On December 26, 2017, the Clerk
entered default against Nellum. Doc. #34. National Security
then moved for a default judgment against Nellum on February
21, 2018. Doc. #37. Nellum never responded to the motion.
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); see Fed. R. Civ. P. 55(a).
Fifth Circuit law provides “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). Here, the first and
second steps have been satisfied. Thus, the only issue left
to consider is whether default judgment should be
entered. In making this determination, courts
conduct 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 facts at issue. See
Nishimatsu Constr. Co., Ltd. v. Hous. Nat'l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975) (“The defendant, by
his default, admits the plaintiff's well-pleaded
allegations of fact ….”).
a failure to respond causes substantial prejudice because
“failure to respond … threatens to bring the
adversary process to a halt, effectively prejudicing
Plaintiff's interests.” Ins. Co. of the W. v. H
& G Contractors, Inc., No. C-10-390, 2011 WL
4738197, at *3 (S.D. Tex. Oct. 5, 2011).
as mentioned above, the grounds for default-actual default
and entry of default- have been clearly established here.
See Doc. #32; Doc. #34.
there is no evidence before the Court that the default was
caused by a good faith mistake or excusable neglect.
Nellum has had more than seven months to attempt to set aside
the default. And, “while default judgment is a harsh
remedy, any harshness is mitigated where, as here, the
defendant has had substantial time to correct the
default.” Helena Chem. Co. v. ...