Safeco Insurance Co of America v. Sale

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

SAFECO INSURANCE CO CIVIL ACTION NO. 24-1040

OF AMERICA

VERSUS JUDGE S. MAURICE HICKS, JR.

FRANKLIN SALE, ET AL. MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

Before the Court are four motions. Plaintiff Safeco Insurance Company of America

(“Safeco”) filed a Motion for Default Judgment against Defendants Franklin Sale (“Mr.

Sale”) and Shannon Sale (“Mrs. Sale”) (collectively, “Defendants”). See Record

Document 16. Defendants filed an untimely opposition. See record Document 27. In

response to their untimely opposition, Safeco filed a Motion to Strike Defendants’

Opposition. See Record Document 29. Defendants opposed. See Record Document 31.

Safeco replied. See Record Document 32.

In response to Safeco’s Motion for Default Judgment, Defendants filed a Motion to

Vacate the Clerk’s Entry of Default. See Record Document 20. Safeco opposed. See

Record Document 22. Defendants replied. See Record Document 23. Defendants also

filed a Motion to Dismiss for Insufficient Service of Process. See Record Document 24.

Safeco opposed. See Record Document 26. Defendants replied. See Record Document

28.

For the reasons stated below, Safeco’s Motion for Default Judgment (Record

Document 16) is DENIED. However, if Defendants cause any further unwarranted delay,

Safeco may reassert its Motion for Default Judgment. Additionally, to prevent further

delay, the Court ORDERS that Defendants file an Answer to the Complaint within 14 days

of this Order. Safeco’s Motion to Strike Defendants’ untimely opposition (Record

Document 29) is GRANTED. Defendants’ Motion to Vacate the Clerk’s Entry of Default

(Record Document 20) is GRANTED. Defendants’ Motion to Dismiss for Insufficient

Service of Process (Record Document 24) is DENIED.

BACKGROUND

Safeco insured Defendants’ home under Policy Number 053267800-01 (the

“Policy”). See Record Document 1 at ¶ 3. The Policy provides Defendants with coverage

against certain risks relating to their premises designated in Greenwood, Louisiana

71033-2951. See id. at ¶ 8. The Policy provides a Coverage A limit of $900,000 for the

dwelling itself, a Coverage B limit of $100,000 for other structures on the property, a

Coverage C limit of $500,000 for personal property, a Coverage D limit of $180,000 for

additional living expenses, a Coverage E limit of $300,000 for personal liability, and a

Coverage F limit of $1,000 for medical payments. See id.

On or about April 23, 2023, a thunderstorm allegedly caused damage to the

premises located in Greenwood, Louisiana. See id. at ¶ 9. As a result, Defendants

asserted claims and sought payment from Safeco on those claims under the Policy for

damages to the dwelling and other structures on the property in the amount of

$121,412.53. See id. at ¶ 10. Safeco disputes that the amount Defendants seek is due.

See id. at ¶ 11.

Unable to agree on the amount of loss covered by the Policy, Safeco claims the

appraisal provision of the Policy was invoked. See id. at ¶ 12. The Policy’s appraisal

provision provides:

If you and we do not agree on the amount of the loss, including

the amount of actual cash value or replacement cost, then, on

the written demand od either, each shall select a competent

and disinterested appraiser and notify the other of the

appraiser selected within 20 days of such demand. The

appraisers shall first select a competent and disinterested

umpire and failing for 15 days to agree upon such umpire,

then, on request of you or the company after notice of hearing

to the non-requesting party by certified mail, such umpire shall

be selected by a judge of a court of record in the county in

which the property covered is located. The appraisers shall

then appraise the loss, stating separately the actual cash

value or replacement cost of each item, and failing to agree,

shall submit their differences, only, to the umpire. An award in

writing, so itemized, of any two of these three, when filed with

the company shall determine the amount of loss.

See id. at ¶ 13; see also Exhibit A, Policy at Section I, ¶ 7. Pursuant to the Policy’s

appraisal process, Safeco claims it selected Al Mallet of First General Services of the

South Inc. as its appraiser. See Record Document 1 at ¶ 15. Defendants allegedly

identified Michael Williams as their appraiser. See id. Despite the efforts of their

appraisers, Safeco avers the parties remain unable to agree on the amount of loss on

any of the claims. See id. at ¶ 16.

After trying for more than 15 days, Safeco alleges that the parties’ appraisers have

been unable to agree on the appointment of an umpire. See id. at ¶ 17. Safeco claims

that the inability to agree on the umpire triggers the provision permitting “a judge of a court

of record in the county in which the property covered in located” to select an umpire. See

id. To complete the appraisal process as provided by the Policy, Safeco seeks a

declaratory judgment declaring that all parties are required to fully and completely

participate in the appraisal process pursuant to the Policy and that the appraisal process

requires a selection of an umpire pursuant to the Policy. See id. at ¶ 18.

As the appraisers appointed by the parties cannot agree on the selection of an

umpire, Safeco requests that the Court appoint a competent and disinterested umpire

pursuant to the Policy. See id. at ¶ 19. Specifically, Safeco requests the Court appoint as

umpire either George Geep Moore of Forensic Constriction Specialist; Paul LeGrange;

Samuel D. Amoroso, Ph.D., P.E., S.E.; Kevin Vanderbrook, P.E.; or Russell J. Bellard,

P.E. See id. at ¶ 20. Additionally, Safeco requests the Court enter a judgment in its favor

declaring and ordering the following: (1) the appraisal provision in the Policy is clear,

unambiguous, valid, and enforceable; (2) Defendants are required to fully and completely

participate in the appraisal process pursuant to the appraisal provision in the Policy; (3)

the appraisal provision requires a selection of an umpire; (4) the Court will select an

umpire pursuant to the Policy’s appraisal provision; (5) one of Safeco’s listed umpires will

be appointed; and (6) all other general and equitable relief is reasonable. See id. at ¶ 21.

On September 5, 2024, the summons issued by the Court were returned as

executed by Safeco. See Record Document 7. Both Defendants were allegedly served

on August 28, 2024, and an answer was due on September 18, 2024. See id. On October

10, 2024, Safeco submitted a Motion for Entry of Default to Daniel J. McCoy, the Clerk of

Court for the Western District of Louisiana, pursuant to Federal Rule 55(a) and Local Rule

55. See Record Document 12. In its motion, Safeco asserted that the time within which

Defendants were required to serve a responsive pleading or otherwise defend themselves

had expired. See id. at 1–2. On October 10, 2024, the Clerk of Court entered a Notice of

Entry of Default against Defendants. See Record Document 13. The instant Motions

ensued.

LAW AND ANALYSIS

I. Motion to Dismiss for Insufficient Service of Process (Record Document 24).

(a) Legal Standard.

Federal Rule 4(e) provides the rules for service of process:

Unless federal law provides otherwise, an individual—other

than a minor, an incompetent person, or a person whose

waiver has been filed—may be served in a judicial district of

the United States by:

(1) following state law for serving a summons in an action

brought in courts of general jurisdiction in the state where the

district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint

to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or

usual place of abode with someone of suitable age and

discretion who resides there; or

(C) delivering a copy of each to an agent authorized by

appointment or by law to receive service of process.

Lee v. Deutsche Bank Nat’l Trust Co., No. 18-2887, 2019 WL 1057015, at *2 (E.D. La.

Mar. 6, 2019) (quoting FED. R. CIV. P. 4(e)).

In Louisiana, several code articles govern service of process. “Service of citation

or other process may be either personal or domiciliary….” LA. CODE CIV. P. art. 1231.

“Personal service is made when a proper officer tenders the citation or other process to

the person to be served.” LA. CODE. CIV. P. art. 1232. “Domiciliary service is made when

a proper officer leaves the citation or other process at the dwelling house or usual place

of abode of the person to be served with a person of suitable age and discretion residing

in the domiciliary establishment.” LA. CODE CIV. P. art. 1234. “Except as otherwise

provided by law, service shall be made by the sheriff of the parish where service is to be

made or of the parish where the action is pending.” LA. CODE CIV. P. art. 1291. Article 1292

discusses the sheriff’s return:

A. The sheriff shall endorse on a copy of the citation or other

process the date, place, and method of service and sufficient

other date to show service in compliance with law. He shall

sign and return the copy promptly after the service to the clerk

of court who issued it. The return, when received by the clerk,

shall form part of the record, and shall be considered prima

facie correct. The court, at any time and upon such terms as

are just, may allow any process or proof of service thereof to

be amended, unless it clearly appears that material prejudice

would result to the substantial rights of the party against whom

the process issued.

LA. CODE OF CIV. P. art. 1292(A).

“A party may move to dismiss a case for insufficient service of process” under

Federal Rule 12(b)(5). River Healthcare, Inc. v. Baylor Miraca Genetics Labs., LLC, No.

22-135, 2023 WL 2542332, at *8 (M.D. La. Mar. 16, 2023). “‘The party making service

has the burden of demonstrating its validity when an objection to service is made.’” Id.

(quoting Holly v. Metro. Transit Auth., 213 Fed. Appx. 343, 344 (5th Cir. 2007) (citing

Carimi v. Royal Caribbean Cruise Line, Inc., 959 F. 2d 1344, 1346 (5th Cir. 1992))).

“‘When a challenge is made to the adequacy of service of process, the serving party bears

the burden of proving the validity of service or the existence of good cause for failing to

effect service in a timely manner.’” Id. (quoting Ceasar v. La. Bd. of Ethics, No. 17-562,

2018 WL 2090184, at *4 (M.D. La. May 4, 2018) (citations omitted)). When deciding on a

motion to dismiss for ineffective service of process, a district court has wide discretion.

See id.

(b) Summary of the Arguments.

Defendants submit that because Safeco failed to carry its burden to show that

service of process was perfected, this Court should dismiss its Complaint. See Record

Document 24-1 at 4. They contend delivery by process server was ineffective. See id. As

to Mr. Sale, Defendants claim the Complaint does not list service instructions or an

address for domiciliary service. See id. at 5. Furthermore, Defendants argue the

summons issued does not contain an address where Mr. Sale could have been served or

any signatures. See id. With respect to Mrs. Sale, Defendants assert there are no

signatures provided by the person accepting service, and the documents only admit to

serving the summons, not a copy of the Complaint. See id. They submit that without an

address for Mrs. Sale listed in the Complaint, service must be rendered defective. See id.

Additionally, Defendants aver that Safeco’s proof of service by commercial courier

is insufficient to establish proper service. See id. at 6. Defendants argue Safeco has not

indicated that a waiver of service was included in the FedEx delivery. See id. Moreover,

they contend Safeco did not request FedEx to obtain a signature upon delivery, nor is

there any proof that the envelope was delivered to the Defendants’ residence. See id. at

6–7.

Safeco opposes, asserting that Defendants are barred from filing a Rule 12(b)(5)

motion without first setting aside the default. See Record Document 26 at 2. However,

Safeco submits that even on the merits, the Motion to Dismiss fails. See id. Safeco avers

that its proof of service complied with Rule 4. See id. at 6. First, it contends that Rule 4

imposes no requirement for the recipient of service to sign the proof of service. See id. at

7. Second, Safeco argues the signed returns clearly confirm that service occurred at

Defendants’ residence, and this fact is not disputed. See id. at 8. Safeco states that Rule

4 does not mandate that the exact service address appear on the return itself. See id.

Third, Safeco asserts that the returns of service filed into the record and the declaration

of Corporal Terrel confirmed he served the summons and copies of the Complaint on

Defendants. See id.

Additionally, Safeco provides that the FedEx delivery was an additional, not sole,

method of service, and there is no requirement to perfect all methods of service. See id.

at 9. Safeco claims it mailed the summons, Complaint, and pleadings as a courtesy to

Defendants and as a gesture of Safeco’s good faith interest in resolving this matter

efficiently and expeditiously. See id. at 10. Because Safeco’s other methods of service

satisfy Rule 4, it submits that the alleged defect in the FedEx delivery is moot. See id.

Defendants respond, arguing that no statute or rule precludes filing a dispositive

motion while a case is in default. See Record Document 28 at 1. They reiterate that

procedurally proper service of process has not been demonstrated. See id. at 2.

Defendants assert that actual notice is not a substitute for procedural process, and

service returns do not confirm the location of service. See id. at 3–4. Furthermore, they

contend that Safeco admits service by commercial courier was not perfected. See id. at

7. Defendants submit they have been prejudiced by the improper service of process,

causing a delay in resolving their claim with Safeco and a delay in receiving the funds

necessary to return their residence to its pre-storm condition. See id. at 8.

(c) Analysis.

When dealing with the sufficiency of service of process, presumptions exist under

both Louisiana and federal law. “In Louisiana, a sheriff’s return of a copy of process ‘shall

be considered prima facie correct.’” McLaurin v. ABC Ins. Co., No. 24-2302, 2024 WL

4948692, at *4 (E.D. La. Dec. 3, 2024) (quoting LA. CODE CIV. P. art. 1292). To rebut this

presumption, Defendants must prove by a preponderance of the evidence that service

was not properly made. See id. Under federal law, “[w]hen service is challenged, the

serving party bears the burden of proving its validity or good cause for failure to effect

timely service.” Green v. City of Monroe, No. 22-00884, 2023 WL 4195049, at *3 (W.D.

La. June 9, 2023). “‘A signed return of service constitutes prima facie evidence of valid

service, which can be overcome only by strong and convincing evidence.’” Id. (quoting

People’s United Equip. Fin. Corp. v. Hartmann, 447 Fed. Appx. 522, 524 (5th Cir. 2011)

(citations and internal quotation marks omitted)). “‘The Court may consider affidavits or

declarations in resolving Rule 12(b)(5) motions.’” Id. (quoting Kitchen v. Walk-On’s

Bistreaux & Bar, No. 19-1062, 2020 WL 2404911, at *1 (W.D. La. May 12, 2020)). See

Thomas v. New Leaders for New Schs., 278 F.R.D. 347, 351 (E.D. La. 2011) (“The Court

may consider such affidavits when resolving a Rule 12(b)(5) challenge without converting

the motion into a motion for summary judgment.”).

Under Federal Rule 4(e), Safeco can properly serve Defendants by either adhering

to Louisiana or federal law. Corporal Terrel conducted personal service on Mr. Sale and

domiciliary service on Mrs. Sale. According to Corporal Terrel’s signed return and

declaration, he confirms that he personally served the summons and a copy of the

Complaint to Mr. Sale at 9194 Main Street, Greenwood, Louisiana, 71033-2951. See

Record Document 26-2 at 1. Additionally, Corporal Terrel stated he left the summons and

a copy of the Complaint directed to Mrs. Sale with Mr. Sale at 9194 Main Street,

Greenwood, Louisiana, 71033-2951. See id. There is nothing in the record that

contradicts the fact that the Greenwood address is the dwelling house or usual place of

abode for both Defendants. Additionally, there is nothing to negate the fact that Mr. Sale

is of suitable age and discretion and resides in the domiciliary establishment. The return

reflects that Corporal Terrel endorsed a copy of the citation with the date, place, and

method of service.

Additionally, Safeco clarified that the FedEx delivery was not the sole method of

service; rather, it was another way to provide Defendants with notice of service. After

reviewing the record, including Corporal Terrel’s declaration, the Court finds that Safeco

properly served Defendants through personal service on Mr. Sale and domiciliary service

on Mrs. Sale. Defendants have not submitted sufficient evidence to successfully rebut the

above presumptions. Unlike the defendants in McLaurin, Defendants here do not provide

any testimony, affidavits, or other evidence showing service was improper. See id.

Instead, Defendants merely argue the FedEx delivery was insufficient, and the executed

summons was not notarized and did not contain Defendants’ exact address. Defendants

misapply both Louisiana and federal law because their analysis focuses on the non-

resident statutes. Defendants are Louisiana residents; thus, Louisiana’s long-arm statute

and its accompanying statutes do not apply here. See Lee, 2019 WL 1057015, at *2. The

Court finds that Safeco properly served both Defendants; therefore, Defendants’ Motion

to Dismiss for Insufficient Service of Process (Record Document 24) is DENIED.

II. Motion to Vacate Clerk’s Entry of Default (Record Document 20).

(a) Legal Standard.

Federal Rule 55(c) provides that “‘for good cause shown, the court may set aside

an entry of default.’” Am. Safety LLC v. Alger, No. 20-3451, 2021 WL 1753808, at *2 (E.D.

La. May 4, 2021). The Fifth Circuit considers three factors “to determine whether good

cause is shown: (1) whether the failure to act was willful; (2) whether setting the default

aside would prejudice the adversary; and (3) whether a meritorious claim has been

presented.” Id. “‘These factors are not exclusive; instead, they are to be regarded simply

as a means to identify good cause.’” Id. Courts within the Fifth Circuit agree that

“‘[d]efaults are not favored and their strict enforcement “has no place in the Federal

Rules.”’” Id.

(b) Summary of the Arguments.

Defendants argue that the Court should void the entry of default for lack of proper

service. See Record Document 20-1 at 6. Defendants contend service is improper

because no affidavit of service has been filed to indicate proper service. See id. at 7.

Additionally, they assert that Safeco’s declaration showing proof of service is insufficient

because it is not notarized. See id. at 8. Defendants advance that the documents

submitted to establish proper proof of service are wholly insufficient and provide little

detail to establish perfected service. See id. at 9. Furthermore, they submit that Safeco’s

proof of service by commercial courier is insufficient to establish proper service. See id.

Defendants also assert that the entry of default was premature and therefore void

under La. R.S. § 13:3205. See id. at 10. Under this statute, Defendants argue that no

default judgment can be rendered against them until 30 days after an affidavit has been

filed in the record attesting to proper service. See id. Defendants contend that even if the

mailed service was properly perfected, the entry of default was still premature because

they are allowed 60 days from when the request was sent to submit the signed waiver

with an answer to the Complaint. See id. at 11.

Additionally, Defendants contend that good cause exists to vacate the entry of

default. See id. Defendants submit they have exhibited no willfulness in their failure to

respond, and Safeco suffers no prejudice in setting aside the default. See id. at 11–13.

Moreover, Defendants argue they have meritorious defenses to the Complaint. See id. at

13. Specifically, they advance that the Complaint inappropriately and prematurely seeks

a judgment that the appraisal provision is clear, unambiguous, valid, and enforceable

when the appraisal process had only just begun. See id. at 14.

Safeco opposes, arguing that Defendants’ Motion to Vacate is a transparent

dilatory tactic and should be denied. See Record Document 22 at 5. Safeco asserts that

Defendants’ attempt to challenge service of process based on an incorrect legal standard

is meritless, and they cannot establish good cause to vacate the default. See id. Safeco

avers that the requirements set forth in Federal Rule 4 should be applied instead of those

in La. R.S. § 13:3205 because Defendants are Louisiana residents. See id. at 7. Safeco

submits that although the returns were not notarized, 28 U.S.C. § 1746 permits unsworn

declarations made under penalty of perjury in lieu of notarization. See id. at 11.

Furthermore, while the returns do not specify the exact address, Safeco argues that this

omission does not invalidate service, especially since Defendants had actual knowledge

of the lawsuit. See id.

Safeco also contends that Defendants fail to establish good cause to vacate the

default. See id. at 12. It advances that Defendants have provided no legitimate basis for

their assertions. See id. Moreover, Safeco asserts that Defendants’ default was willful

because they made their initial appearance 70 days after receiving actual notice of the

lawsuit and 27 days after the Clerk of Court entered default against them. See id. at 12–

13.

Additionally, Safeco submits that setting aside the default would contravene

principles of equity and judicial economy and prejudice Safeco. See id. at 13. Safeco

contends that it has incurred substantial costs in litigating this matter, and the adversary

process has been delayed because of Defendants. See id. at 14. Safeco also argues that

Defendants fail to present a meritorious defense because their unsubstantiated

assertions do not challenge the merits of the Complaint or Motion for Default Judgment.

See id. at 15–16.

Defendants reply, reiterating that Safeco is not entitled to a default judgment. See

Record Document 23 at 2. They submit that service issues provide good cause to vacate

the entry of default. See id. Additionally, Defendants argue they acted expeditiously to

correct the default prior to entry of judgment, as they were able to hire counsel and oppose

the entry of default prior to the Court’s ruling on the default judgment. See id. at 3–4.

Defendants also contend that Safeco’s refusal to move forward indicates no prejudice.

See id. at 4. Furthermore, they reassert they have presented many meritorious defenses,

such as Safeco improperly naming the appraisers in its Complaint. See id. at 5–6.

(c) Analysis.

Defendants request that the Court vacate the Clerk’s entry of default for lack of

proper service. See Record Document 20-1 at 6. As stated previously, Defendants

incorrectly apply the Louisiana long-arm statute and its accompanying provisions to the

instant case. Thus, the entry of default was not premature because the time periods in

La. R.S. § 13:3205 do not apply here. Furthermore, the Court’s above analysis confirms

that service on both Defendants was proper. The only inquiry the Court will conduct is

whether good cause exists to vacate the entry of default.

Sufficient proof has been submitted to the Court to indicate that Defendants

received the summons and a copy of the Complaint. Even so, they have not exhibited

any willfulness in their failure to file an Answer. Defendants have filed a Motion to Vacate

and a Motion to Dismiss and have responded to Safeco’s motions. While Safeco may

have suffered additional costs as a result of Defendants’ delay, this case is less than one

year old, and a resolution on the merits rather than by default is favored by Fifth Circuit

case law.

Defendants also present two meritorious defenses. First, they dispute that the

appraisal provision is clear, unambiguous, valid, and enforceable. See Record Document

20-1 at 13–14. Second, they disagree with the list of appraisers in the Complaint. See id.

at 14. Defendants wish to respond as to the truth of the statements on the record. See id.

Therefore, Defendants’ Motion to Vacate the Clerk’s Entry of Default (Record Document

20) is GRANTED.

III. Motion to Strike Untimely Opposition (Record Document 29).

(a) Legal Standard.

“When an act may or must be done within a specific time, the court may, for good

cause, extend the time: (A) with or without motion or notice if the court acts, or if a request

is made, before the original time or its extension expires; or (B) on motion made after the

time has expired if the party failed to act because of excusable neglect.” FED. R. CIV. P.

6(b)(1). Rule 6 gives a court wide discretion when deciding whether to decline to consider

an untimely filing. See Beauregard Parish Sch. Bd. v. Honeywell Inc., No. 05-1388, 2008

WL 762076, at *1 (W.D. La. Mar. 19, 2008). When determining whether a party’s neglect

is excusable, “the court should consider all relevant circumstances including the danger

of prejudice to the non-movant, the length of delay and its impact on the proceedings, the

reason for the delay, and whether the movant acted in good faith.” Jackson v. La. Tech

Univ., No. 11-0524, 2011 WL 5866010, at *4 (W.D. La. Nov. 22, 2011). “Delay alone,

however, does not constitute prejudice…[r]ather, ‘plaintiff must show that the delay will

result in the loss of evidence, increased difficulties in discovery, or greater opportunities

for fraud and collusion.’” Id.

(b) Summary of Arguments.

Safeco submits that Defendants’ untimely opposition to its Motion for Default

Judgment should be stricken to ensure compliance with established deadlines and

procedural fairness. See Record Document 29-1 at 1. November 7, 2024 was the

deadline for opposing Safeco’s Motion for Default Judgment. See id. at 4. Safeco argues

Defendants provided no notice to Safeco’s counsel, and their opposition, which was filed

38 days late, was the first indication of their intent to respond to the Motion for Default

Judgment. See id. at 4–5. Should the Court deny this Motion to Strike, Safeco requests

leave to file a reply to Defendants’ opposition. See id. at 6.

Defendants oppose, arguing Safeco must demonstrate that the allegations in their

opposition have no relevance and that Safeco will be prejudiced by the Court’s

acceptance of the opposition. See Record Document 31 at 3. They submit that the Motion

to Strike does not satisfy these requirements. See id. Additionally, Defendants contend

their filings in the instant case are procedurally proper. See id. at 5. They also object to

Safeco’s request for an extension of time to file a reply. See id. at 8.

Safeco replies, arguing that Defendants rely on an incorrect legal standard and

offer no valid justification for their blatant disregard of the Court’s deadlines. See Record

Document 32 at 1. Safeco submits that this misapplication of the law does nothing to

relieve Defendants of their burden under Rule 6(b)(1)(B) to demonstrate good cause and

excusable neglect and seek leave of Court for their untimely filing. See id. Safeco

contends that Defendants shift the burden onto Safeco instead of explaining why their

opposition was filed 38 days after the deadline. See id. Safeco advances that Defendants

persistent failure to comply with the Local Rules and Federal Rules of Civil Procedure

supports striking their opposition to preserve fairness and judicial efficiency. See id.

(c) Analysis.

On October 24, 2024, the Clerk entered a Notice of Motion Setting as to Safeco’s

Motion for Default Judgment. See Record Document 17. The deadline for Defendants to

file an opposition was November 7, 2024. See id. On November 6, 2024, Defendants filed

their Motion to Vacate the Clerk’s Entry of Default. See Record Document 20. On

December 15, 2024, Defendants filed their opposition to Safeco’s Motion for Default

Judgment. See Record Document 27.

Counsel for Defendants failed to seek leave to file their untimely opposition to

Safeco’s Motion for Default Judgment, and their opposition was more than a month late.

Defendants did file a Motion to Vacate on November 6, ahead of the November 7

deadline. At first glance, the Court assumed this Motion to Vacate was considered their

opposition. Since counsel for Defendants sought no leave of Court and filed something

before the November 7 deadline, the Court does not find that Defendants failed to act

because of excusable neglect. Therefore, Safeco’s Motion to Strike (Record Document

29) is GRANTED, and the Court will not consider Defendants’ untimely opposition. See

FED. R. CIV. P. 6(b)(1)(B); see also Reed v. Gautreaux, No. 19-130, 2019 WL 6219854, at

*3 (M.D. La. Nov. 21, 2019). Instead, the Court will consider Defendants’ Motion to Vacate

as an opposition to Safeco’s Motion for Default Judgment.

IV. Motion to Enter Default Judgment (Record Document 16).

(a) Legal Standard.

“‘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, the clerk

must entry the party’s default.’” Wells v. Gautreaux, No. 23-1558, 2025 WL 850010, at *1

(M.D. La. Mar. 19, 2025) (quoting FED. R. CIV. P. 55(a)). “Once default has been entered,

the court may enter a default judgment against the defendant upon motion by the plaintiff.”

Id. (citing FED. R. CIV. P. 55(b); N.Y. Life Ins. Co. v. Brown, 84 F. 3d 137, 141 (5th Cir.

1996)). When “‘considering a motion for default judgment, the court accepts as true the

well-pleaded allegations of facts in the complaint (except regarding damages) but must

determine whether those facts state a claim upon which relief may be granted.’” Id.

(quoting BSG Clearing Sols. N. Am., LLC v. V&T Commc’ns, LLC, No. 17-1093, 2018 WL

4677906, at *2 (W.D. Tex. Aug. 3, 2018)). Therefore, “for a plaintiff to obtain a default

judgment, ‘[t]here must be a sufficient basis in the pleadings for the judgment entered.’”

Id. (quoting Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l Bank, 515 F. 2d 1200, 1206 (5th

Cir. 1975)). A party in default “is deemed to have admitted all well-pleaded allegations of

the complaint.” Id.

After the clerk has entered default and the plaintiff has sought a default judgment,

“a court employs a two-part analysis to determine whether a default judgment should be

entered against a defendant.” Id. at *2. “‘First, the court must consider whether the entry

of default judgment is appropriate under the circumstances.’” Id. (quoting J&J Sports

Prods., Inc. v. KCK Holdings, LLC, No. 14-269, 2015 WL 4656714, at *3 (M.D. La. Aug.

5, 2015) (citing Lindsey v. Prive Corp., 161 F. 3d 886, 893 (5th Cir. 1998))). Under part

one, there are six factors to consider (the “Lindsey 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.”

Id.

Under part two, “‘the court must assess the merits of the plaintiff’s claims and find

sufficient basis in the pleadings for the judgment.’” Id. When making this determination,

“the [c]ourt may consider only well-pleaded facts; conclusions of law are not presumed to

be true.” Id. “[F]actual allegations need only ‘be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even

if doubtful in fact).’” Id.

After establishing “that the procedural requirements for default judgment have

been satisfied, the [c]ourt must also evaluate whether declaratory relief is appropriate….”

Steadfast Ins. Co. v. Picke Const. Corp., No. 10-3286, 2011 WL 1303144, at *2 (E.D. La.

Mar. 30, 2011). A court must conduct a three-step inquiry. See id. “First, the court must

determine whether the declaratory action is justiciable.” Id. “Second, if the court has

jurisdiction, it must determine whether it has the ‘authority’ to grant declaratory relief.” Id.

Third, “the court must determine whether the exercise its discretion to decide or dismiss

the declaratory action.” Id.

(b) Summary of the Arguments.

Safeco avers that a default judgment is appropriate under the circumstances, and

the Lindsey factors favor entering a default judgment against Defendants. See Record

Document 16-3 at 9–10. Safeco argues that Defendants’ failure to file responsive

pleadings prejudices Safeco by halting the adversarial process. See id. at 11. Additionally,

Safeco contends Defendants have made no attempts to excuse their failure to respond

as a good faith mistake or excusable neglect. See id. Safeco submits that the declaratory

judgment requested does not prejudice Defendants because it merely advances the

appraisal process to which the parties agreed to under the Policy. See id.

Safeco argues it has demonstrated an adequate basis for a declaratory judgment

on the merits against Defendants. See id. First, there is an actual controversy between

the parties. See id. at 12. Second, the Court has authority to grant the requested

declaratory relief. See id. at 14. Third, the Court should exercise its discretion to grant the

declaratory judgment requested in the Complaint. See id. at 15. Having satisfied all

requirements, Safeco asserts that the Court should find it is entitled to a declaratory

judgment against Defendants pursuant to the terms of the Policy. See id. at 16.

Since Defendants’ untimely opposition has been struck, the Court will instead

consider Defendants’ Motion to Vacate as the opposition to Safeco’s Motion for Default

Judgment. The Motion to Vacate was filed before the opposition deadline and asserts

arguments relevant to default judgment. Those arguments are summarized above.

(c) Analysis.

First, the Court will conduct the two-part inquiry to determine whether the

procedural requirements of default have been met. Under part one, the Court considers

the Lindsey factors to determine whether an entry of default against Defendants is

appropriate. See Wells, 2025 WL 850010, at *2. First, Defendants have filed a Motion to

Vacate in response to Safeco’s Motion for Default Judgment and a Rule 12(b)(5) Motion

to Dismiss. In those motions, Defendants argue certain material facts are in dispute, such

as whether the Policy’s appraisal provision is clear, unambiguous, valid, and enforceable.

Second, even though Defendants have not filed an Answer, they have made an

appearance in this litigation and have filed responsive pleadings.

Third, the grounds for granting default are clearly established, as they are

“supported by the procedural history of this case with regard to [Defendants] and the

Clerk’s entry of default against [them].” Id. The fourth and sixth factors relate to one

another and will be analyzed together. Since Defendants have filed responsive pleadings

and this case is less than a year old, the Court may have some basis “to find that

[Defendants’] failure to respond was the result of a good faith mistake or excusable

neglect.” Id. At this stage, there is not enough evidence to show Defendants willfully

decided not to respond to the Complaint. Fifth, Defendants’ appearance and responsive

pleadings do not support the harshness that results from a default judgment. The Court

finds that most of the Lindsey factors favor not entering a default judgment against

Defendants. Since part one of the procedural inquiry has not been met, the Court will not

conduct the further inquiries at this time.

“Default judgments are disfavored due to a strong policy in favor of decisions on

the merits and against resolution of cases through default judgments.” Baton Rouge

Sheet Metal Workers’ Local Union #21 Pension Fund v. Paul, No. 21-00152, 2022 WL

1658240, at *1 (M.D. La. May 25, 2022). A court should only resort to a default judgment

“‘in extreme situations.’” Id. at *2. Safeco’s Complaint was filed on August 5, 2024, making

this case less than a year old. See Record Document 1. Defendants have appeared in

some fashion and filed two responsive pleadings. Therefore, a default judgment is not

warranted at this time, and Safeco’s Motion for Default Judgment (Record Document 16)

is DENIED. However, if Defendants cause any further unwarranted delay, Safeco may

reassert its Motion for Default Judgment. Additionally, to prevent further delay, the Court

ORDERS that Defendants file an Answer to the Complaint within 14 days of this Order.

CONCLUSION

For the reasons stated above, Safeco’s Motion for Default Judgment (Record

Document 16) is DENIED. However, if Defendants cause any further unwarranted delay,

Safeco may reassert its Motion for Default Judgment. Additionally, to prevent further

delay, the Court ORDERS that Defendants file an Answer to the Complaint within 14 days

of this Order.

IT IS FURTHER ORDERED that Safeco’s Motion to Strike Defendants’ untimely

opposition (Record Document 29) is GRANTED. Defendants’ Motion to Vacate the Clerk’s

Entry of Default (Record Document 20) is GRANTED. Defendants’ Motion to Dismiss for

Insufficient Service of Process (Record Document 24) is DENIED.

An Order consistent with this Ruling shall issue herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 9th day of April, 2025.

UNITED STATES DISTRICT COURT JUDGE

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