Scott v. Quality Fab & Mechanical, L.L.C.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

THERESA SCOTT, ET AL. CIVIL ACTION

VERSUS NO. 19-1808-WBV-JVM

QUALITY FAB & MECHANICAL, LLC, ET AL. SECTION: D (1)

ORDER AND REASONS

Before the Court is a Motion for Default Judgment, filed by plaintiffs, Theresa

Scott and Francheska Rebardi, on May 3, 2019.1 As of the date of this Order, the

Motion is unopposed.

Also before the Court is a Motion for Relief From Entry of Default (“the “Motion

For Relief”), filed by defendants, Quality Fab and Mechanical, LLC, Quality Fab and

Mechanical Contractors, Inc., St. Rose Driving Range, LLC, and Bruce M. Bourgeois,

on July 17, 2019.2 The Motion for Relief is opposed,3 and Defendants have filed a

Reply.4

After careful consideration of the parties’ memoranda and the applicable law,

Defendants’ Motion For Relief From Entry of Default is DENIED and Plaintiffs’

Motion for Default Judgment is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 27, 2019, Theresa Scott and Francheska Rebardi (collectively,

“Plaintiffs”), filed a Complaint in this Court against Quality Fab and Mechanical,

1 R. Doc. 14.

2 R. Doc. 24.

3 R. Doc. 33.

4 R. Doc. 36.

LLC, Quality Fab and Mechanical Contractors, Inc., St. Rose Driving Range, LLC,

and Bruce M. Bourgeois (collectively, “Defendants”), asserting Title VII claims of

employment discrimination based upon sexual harassment and hostile work

environment.5 Plaintiffs allege that Scott began working for Quality Fab &

Mechanical, LLC (“Quality Fab”), on January 5, 2017, in accounts payable, and was

promoted within a few weeks to payroll clerk.6 Plaintiffs also assert that Rebardi

began working at Quality Fab in March 2017 as an accounts receivable clerk.7

Plaintiffs allege that on March 29, 2017, Bourgeois, who is their supervisor and one

of the owners of Quality Fab, invited them to have a drink at the St. Rose Driving

Range, a driving range and bar owned by Bourgeois, to show his appreciation for their

hard work after a difficult day and to discuss a recent issue with an unpaid invoice.8

Plaintiffs allege that they were both drugged and raped by Bourgeois at the driving

range that night.9 Plaintiffs allege that, upon their return to work, co-workers began

making comments to them about how both Plaintiffs had gotten drunk that prior

Wednesday evening, and other comments regarding Bourgeois that made the

Plaintiff’s feel fear, anxiety, uneasiness and panic.10 Bourgeois’ wife, who also works

at the company and was Plaintiffs’ supervisor, told Plaintiffs that Bourgeois “always

gets what he wants.”11

5 R. Doc. 1.

6 Id. at ¶ 4.

7 Id.

8 Id. at ¶ 6.

9 Id. at ¶¶ 7-23.

10 Id. at ¶¶ 15-16.

11 Id. at ¶ 19.

Plaintiffs allege that they both underwent rape kit evaluations at University

Medical Center in New Orleans, and that the hospital reported the matter to the

Louisiana State Police (“LSP”).12 Plaintiffs assert that the LSP opened a criminal

investigation into the matter, obtained video footage from the driving range on the

night in question, and that there is an ongoing investigation.13 On the following

Monday, plaintiff Scott met with Bourgeois’ wife to discuss her frustration over the

things Bourgeois and her co-workers were saying to her and to plaintiff Rebardi.

Plaintiff Scott asked Mrs. Bourgeois to please stop her co-workers and Bourgeois from

making inappropriate comments. Plaintiffs allege Mrs. Bourgeois refused and said

that Plaintiffs “had brought this upon themselves.14 Plaintiffs allege that they did

not return to work “knowing that the taunts would not stop and that no-one in

management would do anything to stop it.”15

Plaintiffs assert that Scott filed a Complaint of Discrimination with the EEOC

on September 20, 2017, and was issued a right to sue letter on December 10, 2018.16

Plaintiffs also assert that Rebardi filed a Complaint of Discrimination on January 25,

2018, but had not received a right to sue letter from the EEOC before the Complaint

was filed.17 Plaintiffs, however, supplemented the record with Rebardi’s Notice of

Right to Sue Letter, which is dated March 12, 2019.18

12 Id. at ¶¶ 22 & 23.

13 Id. at ¶ 22.

14 Id. at ¶ 24.

15 Id.

16 Id. at ¶ 26.

17 Id. at ¶ 27.

18 R. Doc. 39.

The record reflects that the Defendants were served with a copy of the

Complaint on March 17, 2019, and that responsive pleadings were due by April 8,

2019.19 Defendants, however, failed to file responsive pleadings by that date. On

April 23, 2019, with no responsive pleadings having been filed, the Court issued a

Show Cause Order, requiring the Plaintiffs to show good cause in writing within 21

days why the Defendants should not be dismissed for failure to prosecute.20 Pursuant

to that Order, Plaintiffs filed a Motion for Entry of Default as to all of the Defendants

on May 1, 2019, for their failure to plead under Fed. R. Civ. P. 55(a).21 The Clerk

granted the Motion and issued an Entry of Default on May 2, 2019.22 On May 3, 2019,

Plaintiffs filed the instant Motion for Default Judgment, asking the Clerk to enter a

default judgment as to all Defendants and to set a hearing to determine the amount

of the judgment.23

Thereafter, on June 17, 2019, Defendants filed a Motion to Enroll counsel of

record.24 That Motion was granted on June 19, 2019,25 yet defense counsel failed to

take any action or file any pleadings. As a result, the Court issued an Order on July

15, 2019, setting a status conference with the Court for July 18, 2019.26

On July 17, 2019, in response to the Court’s July 15th Order, Defendants filed

the instant Motion For Relief From Entry of Default, asserting that the entry of

19 R. Docs. 6, 7, 8 & 9.

20 R. Doc. 10.

21 R. Doc. 12.

22 R. Doc. 13.

23 R. Doc. 14.

24 R. Doc. 21.

25 R. Doc. 22.

26 R. Doc. 23.

default is void and should be set aside because Defendants were never served with a

copy of the Complaint in accordance with Fed. R. Civ. P. 4.27 Defendants allege that,

“[N]either Bruce Bourgeois nor Lorna Bourgeois have any recollection of being served

and were not at the location of claimed service together but for a very brief period of

time and neither Bruce nor Lorna had any actual knowledge that such lawsuit had

been filed against him.”28 Defendants further assert that defense counsel spoke with

a representative of the Louisiana State Police (“LSP”), who advised that the criminal

investigation into the underlying allegations of sexual assault was closed over a year

ago.29 Defendants do not submit any evidence to support this claim, but assert, in a

footnote, that they “will supplement the record with an affidavit or other form of

admissible proof from the Louisiana State Police as soon as possible.”30 Defendants

also assert in the July 17, 2019 pleading that they are “awaiting production of the

closed investigatory file from the Louisiana State Police and will supplement the

Court upon receipt.” 31 As of the date of this Order, Defendants have not

supplemented the record with any evidence from the LSP. Nonetheless, Defendants

dispute the allegations in the Complaint.

Turning to the issue of service, Defendants assert that although service was

purportedly made by David Centanni, a private process server, on March 17, 2019 by

personal service at the domicile of Bruce and Lorna Bourgeois, the Bourgeois’ have

27 R. Doc. 24 at p. 1.

28 Id. at pp. 1-2.

29 R. Doc. 24-1 at p. 2.

30 Id. at n. 1.

31 Id. at p. 3.

no recollection of being served on that date.32 In support of that position, Defendants

submitted an “Affidavit of Bruce and Lorna Bourgeois,” in which they both claim that,

“I have never been personally served, nor have I received domiciliary service of any

notice, citation, process, or pleading regarding the above captioned matter, or for any

related or associated hearing or cause of action herein.”33 Defendants claim that they

sought security camera footage from the home of Bruce and Lorna Bourgeois, but it

had already been written over by the time they retained counsel.34 Defendants seek

relief from the entry of default under Fed. R. Civ. P. 60(b), asserting that the

judgment is void and should be set aside because Defendants have sworn to the Court

and to their attorneys that they did not receive proper service.35

Alternatively, should the Court find that service was proper, Defendants assert

that good cause exists to set aside the entry of default under Fed. R. Civ. P. 60(b)(6).36

Specifically, Defendants argue that all three criteria considered by Courts in

determining whether sufficient grounds exist for setting aside a default judgment are

met in this case because: (1) the default was not willful on their part; (2) Plaintiffs

will not be prejudiced if the entry of default is set aside; and (3) Defendants can

present a meritorious defense to the allegations in the Complaint.37

Defendants claim the default was not willful because they were never served

with a copy of the Complaint, so they were not aware of the legal proceedings against

32 Id. at pp. 3, 6-7.

33 R. Doc. 24-2.

34 R. Doc. 24-1 at p. 3.

35 Id. at pp. 5-7.

36 Id. at pp. 7-10.

37 Id. (citing Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000)).

them and had no knowledge of the matter.38 Defendants argue that default

judgments are generally disfavored, and that setting aside the entry of default would

not prejudice Plaintiffs because they never confirmed a judgment pursuant to the

default.39 Finally, Defendants claim they can present a complete defense to the

allegations in the Complaint based upon information contained in the closed

investigatory file of the LSP regarding the underlying incident.40 Defendants assert

that the allegations in the Complaint are “incendiary and wrought with selective

facts, and outright falsehoods in many areas.”41 Defendants also point out that the

Fifth Circuit has noted that motions to set aside entries of default are more commonly

granted than motions to set aside default judgments.42

Plaintiffs oppose the Defendants’ Motion, asserting that the Defendants were

properly served through their agents for service of process, Bruce and Lorna

Bourgeois, as evidenced by a Declaration of their private process server, as well as a

photograph taken at the time of service.43 Plaintiffs point out that in their

subsequent Affidavits, submitted with Defendants’ Opposition to Set Aside Default,44

Bruce and Lorna Bourgeois do not dispute that the photograph correctly depicts them

being served. Defendants concede that, despite their earlier Affidavit declaring “I

have never been personally served, nor have I received domiciliary service of any

notice, citation, process, or pleading regarding the above captioned matter,” they are

38 R. Doc. 24-1 at p. 7.

39 Id. at p. 8.

40 Id. at pp. 8-9.

41 Id. at p. 9.

42 Id. at p. 10 (citing In re OCA, 551 F.3d 359, 370 (5th Cir. 2008)).

43 R. Doc. 33 at p. 1 (citing R. Doc. 33-1).

44 R. Doc. 33.

now aware that there is “evidence to the contrary” that service was made through

Mr. and Mrs. Bourgeois on March 17, 2019.45 Plaintiffs argue there is no excuse for

why Bruce and Lorna Bourgeois chose to ignore service when, as agents for the

defendant-companies, they presumably have been served many times. Plaintiffs

assert that Bruce and Lorna Bourgeois are not novices when it comes to being served

because Defendants have been sued in at least seven other cases filed in this Court

and in eleven cases filed in St. Charles Parish, and Bruce and Lorna Bourgeois would

have been served as agents for service of process in those cases.46 Plaintiffs point

out that Bruce Bourgeois has been the agent for service of process for his companies

for almost 30 years, while Lorna Bourgeois has been the agent for service of process

for the St Charles Driving Range since 2004.47 Plaintiffs assert that not only have

Bruce and Lorna Bourgeois ignored service of process in this case, they have also

ignored seven notices that were mailed to them at their home and office between the

entry of default on May 2, 2019, and their enrollment of counsel on June 19, 2019.48

Plaintiffs further argue that Defendants have failed to put forth a viable excuse

for their failure to respond, asserting only that they do not recall getting served,

despite the fact that a picture taken by the process server clearly shows them

reviewing the citation and pleading on March 17, 2019.49 Plaintiffs assert that

Defendants knew what this suit was about because they had previously received two

45 Id. at p. 1 (citing R. Doc. 33-2); R. Doc. 36.

46 R. Doc. 33 at pp. 1-3.

47 Id. at p. 5 (citing R. Docs. 33-4, 33-5 & 33-6).

48 R. Doc. 33 at p. 3 (citing R. Docs. 13, 14, 15, 16, 17, 18 & 19).

49 R. Doc. 33 at p. 4.

notices of claims from the EEOC regarding the Plaintiffs. Plaintiffs argue that, under

Fifth Circuit precedent, an intentional failure to answer is sufficient for a court to

deny a motion to set aside a default.50 Plaintiffs argue that the Court should also

deny the Defendants’ Motion because they did not act expeditiously to correct the

default.51 Plaintiffs claim that Bruce Bourgeois spoke to the Magistrate Judge’s law

clerk on May 17, 2019, after missing a telephone conference scheduled for that day,

and subsequently participated in the rescheduled conference on May 30, 2019, but

that Defendants still took no action to address the default until filing the instant

Motion on July 17, 2019, the day before a status conference noticed by the Court.

Plaintiffs also argue that Defendants have failed to put forth a viable defense

to their employment discrimination claims for sexual harassment and hostile work

environment.52 Although Defendants claim that Plaintiffs cannot prove they were

drugged and sexually assaulted, Plaintiffs argue that defense has no bearing on their

employment discrimination claims, which do not require proof that they were actually

drugged and sexually assaulted. Finally, Plaintiffs argue the default judgment will

not result in an unreasonable damage award because Title VII claims are limited to

lost wages, emotional distress/punitive damages, and attorney’s fees.53 As such,

Plaintiffs assert that the Court should not be concerned that it will be called upon to

award any extraordinary amounts if the default is not set aside.

50 Id. (citing Matter of Dierschke, 975 F.2d 181, 184-85 (5th Cir. 1992)).

51 R. Doc. 33 at p. 4 (citing In re Chinese Manufactured Drywall Products Liability Litigation, 742 F.3d

576, 594 (5th Cir. 2014)).

52 R. Doc. 33 at pp. 5-6.

53 Id. at p. 9.

In response, Defendants assert that the entry of default should be set aside for

good cause so that Defendants are afforded an opportunity to defend themselves from

the serious charges alleged in the Complaint.54 Defendants maintain that their

failure to file responsive pleadings was not willful because, as stated in their updated

Affidavits, Bruce and Lorna Bourgeois “earnestly maintain that they have no

recollection of being served, and that they represented the same to their counsel.”55

Defendants assert that Plaintiffs have not argued that they will be prejudiced if the

entry of default is set aside, and Defendants maintain that they have shown that

Plaintiffs’ allegations of sexual assault and drugging have been found to be

unsubstantiated by the LSP.56 Defendants further argue that while Plaintiffs have

argued why the default judgment should not be set aside, they have failed to argue

why the entry of default should not be set aside under Fed. R. Civ. P. 60(b)(6).57

Finally, Defendants argue that the entry of default will cause irreparable harm if it

is not set aside, as Defendants “seek to vigorously defend any such incendiary claims

with the assistance of counsel and the full due process of the law.”58

54 R. Doc. 36.

55 Id. at p. 2 (citing R. Docs. 36-1 & 36-2).

56 R. Doc. 36 at p. 3.

57 Id. at p. 4.

58 Id.

II. LAW AND ANALYSIS

A. Defendants’ Motion For Relief From Entry of Default.

1. Legal standard for setting aside an entry of default.

According to the Fifth Circuit, Fed. R. Civ. P. 55(c) and 60(b) allow a district

court to set aside an entry of default or default judgment for “good cause.”59 Although

default judgments are “generally disfavored in the law,” 60 that policy is

“counterbalanced by considerations of social goals, justice and expediency, a weighing

process [that] lies largely within the domain of the trial judge’s discretion.”61 To

determine whether good cause exists to set aside a default, courts consider the

following three factors: (1) whether the default was willful; (2) whether setting aside

the default judgment would prejudice plaintiffs; and (3) whether a meritorious

defense is presented.62 Courts can also consider other factors, including whether the

defendant acted expeditiously to correct the default.63 “A finding of willful default

ends the inquiry, for when the court finds an intentional failure of responsive

pleadings there need be no other finding.”64 Further, when a defendant’s neglect is

at least a partial cause of its failure to respond, the defendant has the burden to

convince the court that its neglect was excusable, rather than willful, by a

preponderance of the evidence.65

59 Lacy v. Sitel Corp., 227 F.3d 290, 291-92 (5th Cir. 2000).

60 Id. at 292 (quotation omitted).

61 In re Chinese Manufactured Drywall Products Liability Litigation, 742 F.3d 576, 594 (5th Cir. 2014)

(quoting Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999)) (quotation

marks omitted).

62 Lacy, 227 F.3d at 292 (quotation and quotation marks omitted).

63 In re Chinese Drywall, 742 F.2d at 594 (citing Lacy, 227 F.3d at 292).

64 In re Chinese Drywall, 742 F.2d at 594 (quoting Lacy¸ 227 F.3d at 292) (quotation marks omitted).

65 In re Chinese Drywall, 742 F.2d at 594 (citations omitted).

2. Defendants have not shown that good cause exists to set aside the

entry of default.

a. Defendants’ failure to file responsive pleadings was willful.

After reviewing the evidence presented by both parties, the Court finds that

Defendants have failed to show that good cause exists to set aside the entry of default

in this case. Turning to the three-factor analysis set forth by the Fifth Circuit in Lacy

v. Sitel Corp.,66 the Court finds that Defendants’ failure to file responsive pleadings

in this case was willfull. When Defendants filed the instant Motion For Relief, they

submitted a joint “Affidavit of Bruce and Lorna Bourgeois,” in which they each state

that, “I have never been personally served, nor have I received domiciliary service of

any notice, citation, process, or pleading regarding the above captioned matter, or for

any related or associated hearing or cause of action herein.”67 In response, Plaintiffs

submitted a Declaration from David Centanni, a private process server retained by

Plaintiffs, stating that he personally served citations and certified copies of the

Complaint upon Bruce and Lorna Bourgeois on March 17, 2019, at their home in

Destrehan, Louisiana.68 The Declaration also states that the photograph attached

thereto was taken by Centanni of Bruce and Lorna Bourgeois at the time he

personally served them on March 17, 2019 at their home, which photograph depicts

them reviewing the documentation that he personally served upon them.69 The

photograph attached to Centanni’s Declaration includes a picture of the home and of

66 227 F.3d at 291-92.

67 R. Doc. 24-2.

68 R. Doc. 33- 1 at p. 1.

69 Id.

Bruce and Lorna Bourgeois reviewing documents.70 Defendants now concede that

there is photographic evidence showing service. When confronted with the same

photograph during the Court’s July 18, 2019 status conference, defense counsel did

not dispute the authenticity of the photographs. In their Reply brief, which was filed

after the July 18, 2019 status conference, Defendants do not address the photograph.

Instead, Defendants submitted new Affidavits from Bruce and Lorna Bourgeois, in

which they each state that they “earnestly maintain that they have no recollection of

being served.”71

While Bruce and Lorna Bourgeois may “earnestly believe” that they were not

personally served with the Complaint, the photograph submitted by Plaintiffs clearly

contradicts that purported belief. The Court finds that the photograph constitutes

clear evidence that Defendants were served with a copy of the Complaint through

Bruce and Lorna Bourgeois, their agents for service of process, on March 17, 2019.

Defendants have neither argued or put forth any evidence to dispute the veracity or

authenticity of the photograph taken by the process server, or to dispute that the

photograph constitutes clear evidence that service was perfected on March 17, 2019.

Incredibly, Defendants assert that, “Plaintiffs offer nothing in support of this

conclusion [that Defendants’ failure to respond was willful] other than listing cases

in which the Defendants have also been sued.”72 Apparently, in addition to ignoring

service of process in this case, Defendants have chosen to ignore the photographic

70 R. Doc. 33-1 at p. 2.

71 R. Doc. 36 at p. 2 (citing R. Docs. 36-1 & 36-2).

72 R. Doc. 36 at p. 2.

evidence that clearly shows that they were, in fact, served with a copy of the

Complaint. While Defendants claim that they “clearly lacked the sophistication to

understand the difference between the past dealings of the EEOC and a new

complaint before this Honorable Court,” Defendants readily admit that they “are no

novices to being served.”73 Additionally, when the Court asked defense counsel

during the July 18, 2019 status conference how the Defendants discovered that this

suit was pending and retained counsel if they were never served with a copy of the

Complaint, defense counsel stated that the Defendants learned about the suit

because they received subsequent pleadings in the mail. Thus, Defendants’ failure to

file responsive pleadings was not due to excusable neglect.

Because Plaintiffs have submitted photographic evidence showing that

Defendants were served with the Complaint on March 17, 2019, the Court finds that

Defendants’ failure to file responsive pleadings in this case was intentional. The Fifth

Circuit has held that, “A finding of willful default ends the inquiry, for ‘when the

court finds an intentional failure of responsive pleadings there need be no other

finding.’”74 In light of the undisputed evidence showing that Defendants were served

with a copy of the Complaint through their agents for service of process on March 17,

2019, the Court finds that Defendants’ willful failure to file responsive pleadings is

sufficient cause to deny Defendants’ Motion For Relief From Entry of Default.

73 Id.

74 Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000) (quoting Matter of Dierschke, 975 F.2d 181, 184

(5th Cir. 1992)).

Nonetheless, the Court will consider the remaining two factors set forth in Lacy for

determining whether good cause exists to set aside the entry of default.

b. While Plaintiffs have not alleged that they will be prejudiced

by the setting aside of the entry of default, Defendants have

not put forth a meritorious defense to the Plaintiffs’ Title VII

claims for sexual harassment and hostile work environment.

Although Defendants’ willful failure to file responsive pleadings provides a

sufficient basis for denying Defendants’ Motion for Relief, the Court further finds that

an analysis of the two remaining Lacy factors further supports the Court’s decision

to deny Defendants’ Motion. Regarding the second factor, whether setting aside the

entry of default will prejudice the Plaintiffs, the Court agrees with Defendants that

Plaintiffs have not argued that they will be prejudiced if the entry of default is not

set aside. However, the Fifth Circuit has held that, “Even in the absence of willful

neglect by the defendant or unfair prejudice to the plaintiff, a district court may have

the discretion not to upset a default judgment if the defendant fails to present a

meritorious defense sufficient to support a finding on the merits for the defaulting

party.”75 Here, Defendants have not put forth a meritorious defense to the claims

alleged in the Complaint.

In the Complaint, Plaintiffs assert claims under Title VII of the Civil Rights

Act of 1964 for sexual harassment and hostile work environment.76 When, as here, a

Title VII claim of harassment is filed against a supervisor, an employee must show:

(1) that the employee belongs to a protected class; (2) that the employee was subject

75 Lacy, 227 F.3d at 293.

76 R. Doc. 1 at ¶ 28.

to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4)

that the harassment affected a term, condition, or privilege of employment.77 The

only affirmative defense available to employers in a supervisor sexual harassment

case in which an employee alleges a hostile work environment is the one announced

by the Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct.

2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118

S.Ct. 2275, 141 L.Ed.2d 662 (1998).78 Under the Ellerth/Faragher affirmative

defense, an employer can avoid vicarious liability upon proof that: (1) it exercised

reasonable care to prevent and correct promptly any sexually harassing behavior; and

(2) the plaintiff employee unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid harm otherwise.79 An

employer must establish both prongs of the affirmative defense to be protected from

vicarious liability for the supervisor’s harassment.80

In the instant case, Defendants have not alleged, much less shown, that they

have a meritorious defense to Plaintiffs’ Title VII claims. Instead, Defendants claim

that they have a complete defense to Plaintiffs’ claims because the Plaintiffs’

underlying allegations of sexual assault and drugging have been found to be

77 Lauderdale v. Texas Dept. of Criminal Justice, Institutional Div., 512 F.3d 157, 162-63 (5th Cir.

2007) (quoting Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999)) (quotation marks omitted).

78 Garcia v. Algiers Charter Schools Association, Inc., Civ. A. No. 17-8126, 2018 WL 4932052, at *6

(E.D. La. Oct. 11, 2018); See Casiano v. AT&T Corp., 213 F.3d 278, 284 (5th Cir. 2000) (“As noted, this

is the employer’s only affirmative defense in a supervisor sexual harassment case post

Ellerth/Faragher, and it is available only in a hostile environment (no tangible employment action)

situation; never in a quid pro quo (tangible employment action) case.”) (emphasis in original).

79 Garcia, Civ. A. No. 17-8126, 2018 WL 4932052, at * 6 (quoting Faragher, 524 U.S. at 807, 118 S.Ct.

2275) (quotation marks omitted).

80 Casiano, 213 F.3d at 284.

unsubstantiated by the LSP after a detailed and in-depth investigation.81 As

Plaintiffs point out, however, their claims for sexual harassment and hostile work

environment do not require proof that they were actually drugged and sexually

assaulted.82 Rather, Plaintiffs’ claims are based upon how they were treated after

the alleged sexual assault as detailed in the Complaint. Accordingly, Defendants

have not put forth a meritorious defense sufficient to support a finding on the merits

in their favor.83

Based on the foregoing, the Court finds that Defendants have not shown that

good cause exists to set aside the entry of default under the three-factor test set forth

by the Fifth Circuit in Lacy v. Sitel Corp.84 Although Plaintiffs have not alleged that

they will be prejudiced if the entry of default is set aside, the evidence shows that

Defendants’ failure to file responsive pleadings was willful and Defendants have not

put forth a meritorious defense to the Plaintiffs’ claims. The Court, therefore, finds

that a majority of the factors weigh against finding good cause exists to set aside the

entry of default in this case.

c. Defendants also did not act expeditiously to correct the

default.

In Lacy v. Sitel Corp., the Fifth Circuit held that other factors may also be

considered in determining whether good cause exists to set aside a default, including

whether the defendant acted expeditiously to correct the default.85 The Court finds

81 R. Doc. 24-1 at pp. 8-9; R. Doc. 36 at p. 3.

82 R. Doc. 33 at pp. 5-8.

83 See Lacy v. Sitel Corp., 227 F.3d 290, 293 (5th Cir. 2000).

84 Id. at 292.

85 Id. (quoting Matter of Dierschke, 975 F.2d 181, 184 (5th Cir. 1992)) (quotation marks omitted).

that a review of the record in this case demonstrates that Defendants did not act

expeditiously to correct the entry of default. Defendants assert that their counsel has

acted diligently to correct the entry of default because, “The undersigned enrolled on

June 17, 2019 and immediately began a thorough investigation of the service issues

that abound.”86 Defendants further assert that:

Counsel has diligently investigated the matter, stemming

from allegations centered in an alleged incident in 2017,

has requested countless hours of security camera footage,

has located and interviewed the investigating trooper from

LSP, has requested the investigatory file from 2017/2018

and has timely prepared this motion for the Court in a swift

and comprehensive manner.87

Defendants, however, fail to address why nearly a month elapsed between the

enrollment of counsel on June 19, 2019, and the filing of the instant Motion For Relief

From Entry of Default, or any motion whatsoever, with this Court. The Court further

notes that this Motion was filed only after the Court issued an Order setting a status

conference.

It was defense counsels’ failure to take any action in this case for nearly 30

days after their enrollment that caused the Court to issue the July 15, 2019 Order

setting a status conference for July 18, 2019.88 As Plaintiffs point out, it was only

after the Court’s July 15, 2019 Order that Defendants filed the instant Motion For

Relief, which was filed one day before the July 18, 2019 status conference.89 When

the Court questioned defense counsel during the July 18, 2019 status conference

86 R. Doc. 24-1 at p. 3.

87 Id. at p. 9.

88 R. Doc. 23.

89 R. Doc. 33 at p. 5 (citing R. Doc. 24).

about the delay between their enrollment and the filing of the instant Motion For

Relief, counsel stated that they were waiting to file the Motion until they received

evidence from the LSP, including its investigatory file on the underlying alleged

sexual assault. It is unclear to the Court, however, whether Defendants ever obtained

any such evidence from the LSP. A review of the record shows that Defendants still

have not supplemented the record with information or evidence obtained from the

LSP, despite Defendants’ assertion in their Motion For Relief that they “will

supplement the record with an affidavit or other form of admissible proof from the

Louisiana State Police as soon as possible,” to show that there is no ongoing criminal

investigation. 90 Additionally, Defendants assert in their Reply brief that,

“[U]ndersigned counsel has received notice for [sic] counsel from the Louisiana State

Police that they would require a Subpoena Duces Tecum in order to release any

records in the closed criminal investigation of this matter.”91 Defendants, however,

offer no further information regarding whether the LSP records have been requested

or obtained.

Based on the foregoing, the Court finds that Defendants have not acted

expeditiously to correct the default. This finding further supports the Court’s

conclusion that Defendants have failed to show good cause exists to set aside the

entry of default in this case. Because Defendants have failed to show that good cause

90 R. Doc. 24-1 at p. 2, n.1. Although Defendants filed a Motion for Leave to File Supplemental

Memorandum and Exhibits on July 22, 2019 (R. Doc. 30), which the Court denied on July 24, 2019 (R.

Doc. 31), the entirety of the proposed First Supplemental Memorandum (R. Doc. 30-2) was included in

Defendants’ Reply brief (R. Doc. 36), and does not reference any evidence obtained from the LSP.

91 R. Doc. 36 at p. 2.

exists to set aside the entry of default in this case, Defendants’ Motion For Relief

From Entry of Default must be denied.

B. Plaintiffs’ Motion For Default Judgment

1. Legal standard for entering a default judgment.

As explained by the Fifth Circuit, Fed. R. Civ. P. 55 establishes three steps for

obtaining a default judgment: (1) default; (2) entry of default; and (3) default

judgment.92 A default occurs when “a defendant has failed to plead or otherwise

respond to the complaint within the time required by the Federal Rules.”93 Rule 55

provides that the Clerk of Court must enter a party’s default, “When a party against

whom a judgment for affirmative relief is sought has failed to plead or otherwise

defend, and that failure is shown by affidavit or otherwise . . . .”94 Once the Clerk of

Court has found a defendant to be in default, the Court may, upon motion by the

plaintiff, enter a default judgment against the defendant.95 Before granting a motion

for default judgment, however, this Court “has the duty to assure that it has the

power to enter a valid judgment,” and must “look into its jurisdiction both over the

subject matter and the parties.”96 The Fifth Circuit has held that, “A judgment

entered without personal jurisdiction is void.”97

Default judgments are “generally disfavored in the law” in favor of a trial upon

the merits.98 The Fifth Circuit has emphasized that, “Default judgments are a drastic

92 New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996).

93 Id.

94 Fed. R. Civ. P. 55(a).

95 Fed. R. Civ. P. 55(b)(2).

96 Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324 (5th Cir. 2001).

97 Id.

98 Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000) (quotation omitted).

remedy, not favored by the Federal Rules, and resorted to by courts only in extreme

situations.”99 For that reason, default judgments are “available only when the

adversary process has been halted because of an essentially unresponsive party.”100

“This policy, however, is counterbalanced by considerations of social goals, justice and

expediency, a weighing process [that] lies largely within the domain of the trial

judge’s discretion.”101 Further, a party is not entitled to a default judgment as a

matter of right, even where the defendant is technically in default.102 When the Court

has subject matter jurisdiction and personal jurisdiction over the parties, the Court

may only issue a default judgment when circumstances support doing so.103

In determining whether the entry of a default judgment is appropriate under

the circumstances, the Court must consider the following six factors: (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 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.104 Upon the clerk’s entry of default, the movant’s well-

pleaded factual allegations are deemed admitted.105 The Court, however, retains the

99 Sun Bank of Ocala v. Pelican Homestead and Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989) (citations

omitted).

100 Id. (quotation and quotation marks omitted).

101 In re Chinese Manufactured Drywall Products Liability Litigation, 742 F.3d 576, 594 (5th Cir. 2014)

(quoting Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999)) (quotation

marks omitted).

102 Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th

Cir. 1996) (quotation marks omitted).

103 Hampton v. Praetorian Ins. Co., Civ. A. No. 18-3528, 2019 WL 118012, at *3 (E.D. La. Jan. 7, 2019).

104 Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).

105 Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).

obligation to determine whether those facts state a claim upon which relief may be

granted.106 The entry of a default judgment is committed to the sound discretion of

the district judge, and is afforded great deference upon review.107

2. Default judgment is appropriate in this case.

As a preliminary matter, although Plaintiffs have not provided any briefing on

the issue of jurisdiction, it appears that the Court has subject matter jurisdiction over

the claims in the Complaint under 28 U.S.C. § 1331 because Plaintiffs assert claims

under Title VII of the Civil Rights Act of 1964 for sexual harassment and hostile work

environment.108 It also appears that the Court has personal jurisdiction over the

parties because Bruce Bourgeois is a Louisiana domiciliary and the three entity-

defendants are Louisiana entities that are doing business within this District.109 As

previously discussed, service of process on Bruce and Lorna Bourgeois, as the agents

for service of process for the Defendants, was proper because they were personally

served with a copy of the Complaint at their domicile on March 17, 2019.

The Court further finds that an analysis of the six factors set forth by the Fifth

Circuit in Lindsey v. Prive Corp.110 weighs in favor of entering a default judgment in

this case. Regarding the first factor, whether material issues of fact are at issue, the

Court finds that there are no material facts in dispute because Defendants failed to

106 J&J Sports Productions, Inc. v. Tiger Paw Daiquiris & Grill, LLC, Civ. A. No. 14-268-BAJ-RLB,

2015 WL 1800619, at *2 (M.D. La. Apr. 16, 2015) (citations omitted).

107 Fagan v. Lawrence Nathan Associated, Inc., 957 F. Supp. 2d 784, 796 (E.D. La. 2013) (citing James

v. Frame, 6 F.3d 307, 310 (5th Cir. 1993); Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977)).

108 R. Doc. 1 at ¶¶ 1 & 28.

109 Id. at ¶ 3.

110 161 F.3d 886, 893 (5th Cir. 1998).

file responsive pleadings to the Complaint.111 The second factor, whether there has

been substantial prejudice, also weighs slightly in favor of the Plaintiffs. Defendants’

decision to ignore service of the Complaint and their failure to file responsive

pleadings or to seek relief from the entry of default for more than two months has

prejudiced the Plaintiffs’ interest in resolving their claims against Defendants.112

The Court further finds that the third and fourth factors – whether the grounds for

default are clearly established and whether the default was caused by good faith

mistake or excusable neglect – weigh heavily in favor of Plaintiffs. The Court has

already determined that the default was not caused by good faith mistake or

excusable neglect, and that Defendants’ failure to file responsive pleadings in this

case was willful. Thus, these factors weigh in favor of entering a default judgment.

The Court - finds that the fifth factor, the harshness of a default judgment,

weighs in favor of Defendants. Plaintiffs have not submitted any information

regarding the amount of damages they seek for lost wages, punitive damages,

attorney’s fees, costs and judicial interest, so the Court cannot determine whether an

entry of default judgment would be overly harsh. The Court notes, however, that a

default judgment does not establish the amount of damages, and that the Court is

not required to award damages for which there is no basis in fact or law.113

Nonetheless, since the entry of default, Defendants have enrolled counsel who they

111 Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).

112 See United States v. Fincanon, Civ. A. No. 08-61, 2009 WL 301988, at *2 (N.D. Tex. Feb. 6,

2009) (holding that a plaintiff’s interests were prejudiced because the defendant’s failure to respond

to the complaint halted the adversary process).

113 United States for Use of M-CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987).

claim “stand ready to proceed to motion practice, discovery and defense of these

allegations which they take very seriously.”114 Thus, this factor weighs in favor of

Defendants.

Finally, the Court finds that the sixth factor, whether the Court would think

itself obligated to set aside the default judgment on the Defendants’ motion, weighs

in favor of the Plaintiffs. As previously mentioned, the Motion For Default Judgment

is unopposed. Thus, the Court is unaware of any facts that would lead it to set aside

the default judgment if challenged by the Defendants under Fed. R. Civ. P. 60(b).

Further, the Court has already conducted a “good cause” analysis under Fed. R. Civ.

P. 55(c) and has determined that good cause does not exist to set aside the entry of

default in this case. Defendants have not presented the Court with argument

indicating that the Court would reach a different outcome with respect to a motion to

set aside default judgment under Fed. R. Civ. P. 60(b)(6).

Based on the foregoing, the Court finds that a majority of the factors set forth

by the Fifth Circuit in Lindsey v. Prive Corp.115 weighs in favor of entering a default

judgment in this case. Specifically, there are no material issues of fact in this case,

Plaintiffs have been prejudiced by the Defendants’ default, the grounds for default

are clearly established, the default was willful and not caused by good faith mistake

or excusable neglect, a default judgment would be harsh to Defendants, and the Court

would not be obliged to set aside the default judgment upon a motion by Defendants.

114 R. Doc. 36 at p. 3.

115 161 F.3d 886, 893 (5th Cir. 1998).

3. Plaintiffs’ allegations establish a sufficient basis for a default

judgment.

In addition to determining whether default judgment is appropriate, the Court

must decide whether Plaintiffs’ allegations provide a sufficient basis for a default

judgment against Defendants. As a preliminary matter, Defendants do not dispute

Plaintiffs’ assertion that they both exhausted their administrative remedies by timely

filing a discrimination charge with the United States Equal Employment

Opportunity Commission (the “EEOC”), or that Plaintiffs timely filed this suit within

90 days of receiving their Right to Sue letters.116

Title VII prohibits sexual harassment that takes the form of a tangible

employment action, such as a demotion or denial of promotion, or the creation of a

hostile or abusive working environment.117 Here, there is no allegation of a tangible

employment action. Instead, Plaintiffs allege that Bourgeois’ behavior created a

hostile or abusive working environment.

To establish a prima facie case of hostile work environment under Title VII, an

employee must show: (1) that the employee belongs to a protected class; (2) that the

employee was subject to unwelcome sexual harassment; (3) that the harassment was

based on sex; (4) that the harassment affected a term, condition, or privilege of

employment; and (5) that the employer knew or should have known of the harassment

and failed to take prompt remedial action.118 When the claim of harassment is

116 See R. Doc. 1 at ¶¶ 26 & 27.

117 Lauderdale v. Texas Dept. of Criminal Justice, Institutional Div., 512 F.3d 157, 162 (5th Cir. 2007)

(citing Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).

118 Shepherd v. Comptroller of Public Accounts of State of Texas, 168 F.3d 871, 873 (5th Cir. 1999).

against a supervisor, the employee need only prove the first four elements to establish

a hostile working environment claim.119 The employer is vicariously liable for the

harassment by a supervisor unless it can prove a two-step affirmative defense.120

Under the Faragher affirmative defense, the employer must show that: (1) it

exercised reasonable care to prevent and promptly correct harassing behavior; and

(2) the plaintiff-employee unreasonably failed to take advantage of any preventative

or corrective opportunities provided by the employer, or to otherwise avoid harm.121

Because a defaulting defendant is deemed to admit every well-pleaded

allegation in the complaint, the Clerk’s entry of default establishes a defendant’s

liability.122 The Court finds that the allegations in Plaintiffs’ pleadings establish that

Plaintiffs belong to a protected class and that Bruce Bourgeois, their supervisor,

made sexually explicit and offensive comments to Plaintiffs in front of other

coworkers regarding his alleged rape of the Plaintiffs. Specifically, Bruce Bourgeois

asked Scott, in front of Rebardi and other co-workers, “you don’t remember the

Vaseline on your ass?”123 When Plaintiffs asked Lorna Bourgeois, who was also one

119 Lauderdale, 512 F.3d at 162-63 (quoting Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999))

(quotation marks omitted).

120 Stallworth v. Imani Envtl. Group, Inc., 2013 WL 1896193, at *2 (M.D. Ala. May 6, 2013) (citing

Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).

121 Faragher, 524 U.S. at 807, 118 S.Ct. at 2293.

122 Robinson v. Ergo Sols., LLC, 4 F. Supp. 3d 171, 178 (D.D.C. 2014) (quoting AARP v. Sycle, 991 F.

Supp. 2d 234, 238 (D.D.C.2014)) (quotation marks omitted); See J&J Sports Productions, Inc. v. Tiger

Paw Daiquiris & Grill, LLC, Civ. A. No. 14-268-BAJ-RLB, 2015 WL 1800619, at *5 (M.D. La. Apr. 16,

2015) (citing Ins. Co. of the West v. H & G Contractors, Inc., Civ. A. No. C-10-390, 2011 WL 4738197,

at *3 (S.D. Tex. Oct. 5, 2011)) (same); Nishimatsu Constr. Co., Ltd. v. Houston Nat. Bank, 515 F.2d

1200, 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff’s well-pleaded

allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal

the facts thus established”).

123 R. Doc. 1 at ¶ 17.

of their supervisors,124 to stop their co-workers and to stop Bruce Bourgeois from

making inappropriate comments to them, Lorna Bourgeois refused and told Plaintiffs

that they “had brought this upon themselves.”125

The Court further finds that Bruce Bourgeois’ harassment created a hostile

work environment for the Plaintiffs. The Fifth Circuit has held that, in determining

whether an environment is hostile or abusive, the Court must look to the totality of

the circumstances, including the frequency of the discriminatory conduct, its severity,

whether it is physically threatening or humiliating, or a mere offensive utterance,

whether it unreasonably interferes with an employee’s work performance, and

whether the complained of conduct undermined the plaintiff’s workplace

competence. 126 As the Fifth Circuit has explained, “the test – whether the

harassment is severe or pervasive – is stated in the disjunctive. An egregious, yet

isolated, incident can alter the terms, conditions, or privileges of employment and

satisfy the fourth element necessary to constitute a hostile work environment.”127

The Fifth Circuit further explained that the environment must be deemed both

objectively and subjectively offensive, one that a reasonable person would find hostile

or abusive, and one that the victim in fact did perceive to be so.128

124 Id. at ¶ 19.

125 Id. at ¶ 24.

126 Lauderdale v. Texas Dept. of Criminal Justice, Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007)

(internal quotations and quotation marks omitted).

127 Lauderdale, 512 F.3d at 163 (citing Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 434, 35 (5th

Cir. 2005)).

128 Lauderdale, 512 F.3d at 163 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct.

2275, 141 L.Ed.2d 662 (1998)) (quotation marks omitted).

The Court finds that in light of the alleged rapes by Bruce Bourgeois, facts

which are deemed admitted due to the entry of default, his conduct constitutes an

egregious incident that created a hostile and/or abusive environment for Plaintiffs.

Further, Defendants did not oppose the Motion for Default Judgment and, therefore,

have not asserted an affirmative defense to the vicarious liability of the entity-

defendants for the conduct of Bruce Bourgeois. Accordingly, Plaintiffs’ allegations

present a prima facie Title VII claim for sexual harassment against Bruce Bourgeois,

as well as the entity-defendants who are vicariously liable for his actions.

In their Motion for Default Judgment, Plaintiffs seek a default judgment as to

all Defendants, and requested a hearing to determine the amount of the judgment.129

“When a party seeks a default judgment for damages, the Fifth Circuit instructs that

damages should not [be] awarded without a hearing or a demonstration by detailed

affidavits establishing the necessary facts.” 130 Accordingly, the Court grants

Plaintiffs’ request and will set the matter for a hearing to determine the damages to

be awarded.

III. CONCLUSION

Based on the foregoing, the Court finds that Defendants have failed to show

that good cause exists to set aside the entry of default in this case. As explained

above, although Plaintiffs have not alleged that they will be prejudiced if the entry of

default is set aside, the evidence shows that the Defendants’ failure to file responsive

129 R. Doc. 14 at p. 1.

130 Hampton v. Praetorian Ins. Co., Civ. A. No. 18-3528, 2019 WL 118012, at *3 (E.D. La. Jan. 7, 2019)

(quoting United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)).

pleadings was willful, Defendants have not submitted a meritorious defense to the

Plaintiffs’ Title VII claims, and Defendants did not act expeditiously to correct the

default.131 The Court further finds that a default judgment is appropriate in this case

because there are no material issues of fact in this case, Plaintiffs have been

prejudiced by the Defendants’ default, the grounds for default are clearly established,

the default was willful and not caused by good faith mistake or excusable neglect, a

default judgment would be harsh to Defendants, and the Court would not be obliged

to set aside the default judgment upon a motion by Defendants.132 The Court also

finds that Plaintiffs have presented a prima facie case for their Title VII claims for

sexual harassment that created a hostile work environment. As such, Plaintiffs are

entitled to a default judgment in this case. This matter shall be set for a hearing on

the issue of the amount of damages owed by Defendants.

IT IS HEREBY ORDERED that the Defendants’ Motion For Relief From

Entry of Default133 is DENIED.

IT IS FURTHER ORDERED that Plaintiffs’ Motion For Default Judgment134

is GRANTED.

131 See Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000).

132 Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998).

133 R. Doc. 24.

134 R. Doc. 14.

IT IS FURTHER ORDERED that a hearing is set for April 15, 2020, at 9:00

a.m., during which the Court will hear oral argument and live testimony regarding

the amount of judgment.

New Orleans, Louisiana, March 9, 2020.

(lard |S Vitter

WENDY B. VITTER

UNITED STATES DISTRICT JUDGE