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 summary judgment. Doc. #35.
Rule 56 of the Federal Rules of Civil Procedure,
“[s]ummary judgment is proper only when the record
demonstrates that no genuine issue of material fact exists
and the movant is entitled to judgment as a matter of
law.” Luv N' Care, Ltd. v. Groupo Rimar,
844 F.3d 442, 447 (5th Cir. 2016). “A factual issue is
genuine if the evidence is sufficient for a reasonable jury
to return a verdict for the non-moving party, and material if
its resolution could affect the outcome of the action.”
Burton v. Freescale Semiconductor, Inc., 798 F.3d
222, 226 (5th Cir. 2015) (internal quotation marks omitted).
On a motion for summary judgment, a court must
“consider the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in its
favor.” Edwards v. Cont'l Cas. Co., 841
F.3d 360, 363 (5th Cir. 2016).
seeking summary judgment, “[t]he moving party bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
record which it believes demonstrate the absence of a genuine
issue of material fact.” Nola Spice Designs,
L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536
(5th Cir. 2015) (internal quotation marks and alterations
omitted). If the moving party satisfies this burden,
“the non-moving party must go beyond the pleadings and
by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.”
Id. (internal quotation marks omitted).
motion for summary judgment cannot be granted merely because
it is unopposed. Hibernia Nat. Bank v. Administracion
Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.
1985); see L.U. Civ. R. 7(b)(3)(E) (“If a
party fails to respond to any motion, other than a
dispositive motion, within the time allotted, the court may
grant the motion as unopposed.”). Summary judgment can
only be granted “if the motion and supporting
materials--including the facts considered undisputed--show
that the movant is entitled to it ….”
Fed.R.Civ.P. 56(e)(3); see Vasudevan v. Adm'rs of
Tulane Ed. Fund, 706 Fed. App'x 147, 152 (5th Cir.
2017) (affirming grant of summary judgment on unopposed
motion where supporting materials showed movant entitled to
[I]f the moving party fails to establish by its summary
judgment evidence that it is entitled to judgment as a matter
of law, summary judgment must be denied-even if the
non-movant has not responded to the motion. But where the
movant's summary judgment evidence does establish its
right to judgment as a matter of law, the district court is
entitled to grant summary judgment, absent unusual
McDaniel v. S.W. Bell Tel., 979 F.2d 1534, 1992 WL
352617, at *1 (5th Cir. 1992) (unpublished table decision)
(internal citations omitted) (citing John v. State of
Louisiana (Bd. of Trs. for State Colls. &
Univs.), 757 F.2d 698, 708 (5th Cir. 1985)).
Factual & Procedural History
about November 15, 2016, Jeffery Townsend applied for
homeowner's insurance coverage from National Security
Fire & Casualty Insurance Company for a residence located
at 5681 County Road 92 in Greenwood, Mississippi
(“Property”). Doc. #35-2 at 1; Doc. #35-3 at
33-34. In his application, Townsend made several
representations, including that (1) he had “full
unconditional ownership” of the Property, certifying
that he “own[ed] title in fee simple to any land upon
which an insured building is located;” (2) no one
“with a financial interest in [the] property [had] been
convicted for arson, fraud, or other property crime within
the last 10 years;” (3) he paid $40, 000.00 for the
Property; and (4) he purchased the Property on June 2, 2015.
Doc. #35-2 at 1-2. Based on Townsend's application,
National Security issued to Townsend homeowner's
insurance policy number 1353067-783868 (“Policy”)
effective November 15, 2016, to November 15, 2017. Doc. #35-1
January 29, 2017, a fire destroyed the Property, rendering it
a total loss. Doc. #35-9 at 1; see Doc. #35-3 at 21.
While investigating the claim, National Security discovered
“a number of inconsistencies” in Townsend's
application. Doc. #35-8 at 2. Specifically, in Townsend's
April 10, 2017, examination under oath, he admitted that (1)
he did not have full ownership of the Property; (2) Demetrius
Nellum and/or Nina Olugu was the record owner of the Property
at the time he completed the application; (3) he paid $34,
000.00 for the Property; and (4) he acquired title to the
Property from Olugu through an “Owner Financing
Mortgage Contract” that was executed September 1, 2016.
Doc. #35-3 at 65-66, 99-102; see Doc. #35-10 at 1.
Consequently, on May 11, 2017, National Security returned to
Townsend all of the premiums he paid on the Policy and
declared the Policy “void as of its date of
issuance.” Doc. #35-11 at 1.
May 11, 2017, National Security filed a complaint for
declaratory relief in this Court against Townsend seeking a
judgment declaring the Policy “void ab initio”
because of material misrepresentations by Townsend in his
insurance application, and that it owes no further duty to
Townsend. Doc. #1 at 4. After being granted an extension of
time to respond to the complaint, Townsend filed his
“Affirmative Defenses and Response to Motion for
Declaratory Judgment” on June 30, 2017. Doc. #6; Doc.
#7. On September 21, 2017, with leave of the Court, National
Security filed an amended complaint adding Nellum and Olugu
as defendants. Doc. #18. The amended complaint seeks a
declaration that Townsend's misrepresentations rendered
the Policy voidable, and that National Security, having
properly voided the Policy, owes no further duty to Townsend,
Nellum, or Olugu. Id. at 6.
never answered the amended complaint. Nellum was served on
September 25, 2017, but never answered the amended
complaint. Doc. #22 at 2. On October 30, 2017, Olugu
answered the amended complaint and asserted a
“Counterclaim for Declaratory Judgment” against
National Security seeking (1) a declaration that she does not
have a mortgage interest in the Property and (2)
“reasonable attorney's fees and costs incurred to
defend herself” because National Security “failed
to adequately investigate this matter” before adding
her as a defendant. Doc. #25 at 5-6. National Security
answered Olugu's counterclaim on November 16, 2017. Doc.
the course of discovery, Townsend served his initial
disclosures in which he admitted that “[w]hen the
application was executed by defendant Townsend, Mr. Nellum
was the record owner of the property.” Doc. #35-5 at 2.
Thereafter, National Security filed a motion for summary
judgment. Doc. #35. Olugu responded on March 16,
2018, Doc. #43; National Security replied one week later,
Doc. #45. Neither Townsend nor Nellum responded to National
Security's motion for ...