Collins v. Andrews

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

STEPHANIE COLLINS, )

)

Plaintiff, )

)

v. ) CIV. ACT. NO. 1:20-cv-296-ECM

) (WO)

KELVIN MITCHELL ANDREWS and )

ALLIED COMPANY OF THE )

WIREGRASS, d/b/a ALLIED FENCE )

COMPANY, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On September 28, 2022, this Court entered a Memorandum Opinion and Order

granting in part Plaintiff Stephanie Collins’ (“Collins”) motion for default judgment as to

her 42 U.S.C. § 1981 claims of race discrimination, hostile work environment, and

retaliation against Defendants Kelvin Andrews (“Andrews”) and Allied Company of the

Wiregrass d/b/a Allied Fence Company (“Allied”) (collectively, the “Defendants”), and

awarding Collins back pay, compensatory damages, punitive damages, and interest on

those claims, (doc. 23); and a Final Judgment reflecting that judgment was entered in favor

of Collins and against the Defendants, (doc. 24). Now pending before the Court is a motion

for relief from judgment pursuant to Rule 60 filed by the personal representative of

Andrews’ estate, purportedly on behalf of both Defendants. (Doc. 31).1 The Defendants

assert that they are entitled to relief pursuant to Federal Rule of Civil Procedure 60(b)(1),

or alternatively Rule 60(b)(6). The motion is fully briefed and ripe for review. For the

reasons explained below, the motion for relief from judgment is due to be denied.

II. STANDARD OF REVIEW

Rule 60(b)(1) authorizes the court to relieve a party from a final judgment upon a

showing of “mistake, inadvertence, surprise, or excusable neglect.” “Excusable neglect is

generally an ‘equitable inquiry’ based upon the particular circumstances of the case.”

Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1355 (11th Cir.

2009) (quoting Pioneer Inv. Servs. Co. v Brunswick Assocs. Ltd. P’Ship, 507 U.S. 380, 395

(1993)). To warrant Rule 60(b)(1) relief from a default judgment, the “defaulting party

must show that: ‘(1) it had a meritorious defense that might have affected the outcome;

(2) granting the motion would not result in prejudice to the non-defaulting party; and (3) a

good reason existed for failing to reply to the complaint.’” In re Worldwide Web Sys., Inc.,

328 F.3d 1291, 1295 (11th Cir. 2003) (quoting Fla. Physician’s Ins. Co. v. Ehlers, 8 F.3d

780, 783 (11th Cir. 1993)).

Rule 60(b)(6) authorizes the court to relieve a party from a final judgment for “any

other reason that justifies relief.” “[R]elief under Rule 60(b)(6) is available only in

‘extraordinary circumstances.’” Buck v. Davis, 580 U.S. 100, 123 (2017) (quoting

1 The personal representative of Andrews’ estate is not a party to this action and has not moved to intervene.

Because the motion is due to be denied on the merits, the Court will assume without deciding that the

personal representative is a proper party to move for Rule 60 relief on behalf of the Defendants.

Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). To warrant relief under Rule 60(b)(6), the

moving party must not only show “‘sufficiently extraordinary’ circumstances,” but also

that “absent such relief, an ‘extreme’ and ‘unexpected’ hardship will result.” Doe v.

Drummond Co., 782 F.3d 576, 612 (11th Cir. 2015) (citation omitted).

III. BACKGROUND

A. Procedural History

On May 1, 2020, Collins sued the Defendants in this Court, asserting claims of race

discrimination, hostile work environment, and retaliation pursuant to § 1981, as well as

state law claims of outrage and invasion of privacy. (Doc. 1). On June 29, 2021, a copy of

the summons and complaint was served on Andrews—individually and as Allied’s agent.

(Docs. 15, 16). Thereafter, no answer was filed, and Collins filed an application to the

Clerk of Court for an Entry of Default. (Doc. 17). The Clerk completed the Entry of Default

on August 16, 2021. (Doc. 19). The Entry of Default was mailed to the Defendants.

On September 29, 2021, Collins filed a motion for entry of default judgment (doc.

19), a copy of which was mailed to the Defendants. The Court subsequently entered an

Order requiring Collins to submit evidence in support of her request for a default judgment

and damages, (doc. 20), and Collins thereafter filed a brief and evidentiary submissions,

(docs. 21, 22). Among other evidence, Collins submitted an audio recording of Andrews,

which she had referenced in her complaint and in which Andrews made numerous

abhorrent and disparaging comments about women and African–Americans. Over the span

of approximately four minutes, Andrews used the n-word ten times, told Collins she was

not a human, and told Collins she would never equal a white human, among other abhorrent

comments. Collins also submitted a handwritten letter from Andrews to Collins’ attorney

in which Andrews does not dispute this recording. (Doc. 21-2 at 4). The letter, in its

entirety, reads as follows:

All statemen she recorder is the truth. I stand behind them If she had not

talk back to me this fuss would not happen. She would not do as I ask. Then

given me order she made me mad and I tool her off. And this was in private

until she made it public. All she wants is a free ride.

(Id.) (errors in original). Collins also submitted the affidavit of Michael Magrino

(“Magrino”), the process server who had served Andrews with the complaint. Magrino

stated that he spoke with Andrews at his home on October 21, 2021, and showed Andrews

a copy of the handwritten letter. (Id. at 1). According to Magrino, Andrews confirmed that

he wrote the letter. (Id.).

On September 28, 2022, the Court entered a Memorandum Opinion and Order

granting Collins’ motion for default judgment as to her § 1981 claims and awarding Collins

$14,787.09 in back pay plus prejudgment interest; $50,000.00 in compensatory damages

plus prejudgment interest; and $150,000.00 in punitive damages plus prejudgment interest.

(Doc. 23). Final Judgment was entered the same day. (Doc. 24).

Collins subsequently filed a motion for attorney’s fees and costs. (Docs. 25, 26).

The Court entered an Order for the Defendants to respond to the motion by November 5,

2022, and a copy of this Order was mailed to the Defendants. (Doc. 27). The Defendants

did not respond. On May 8, 2023, the Court entered a Memorandum Opinion and Order

awarding Collins $34,400.00 in attorney’s fees and $400.00 in costs. (Doc. 29). On July

19, 2023, the Defendants filed the instant Rule 60 motion for relief from judgment.

B. Motion for Relief from Judgment

In support of their motion, the Defendants submitted an affidavit signed by Amanda

Crum (“Crum”), the personal representative of Andrews’ estate and Andrews’ daughter.

(Doc. 31 at 16–17). According to Crum, Andrews died on January 18, 2023, and previously

had “extreme health issues that left him with many physical and mental problems.” (Id. at

16). In November 2018, Andrews was hospitalized for a heart attack. Sometime after this

hospitalization, Andrews underwent amputation of nearly all of his fingers and both legs.

Crum asserts that the amputations as well as Andrews’ overall health left him “in a bad

physical and mental condition,” and that “there were times when he was completely

incoherent and could not even speak or care for himself.” (Id.). Crum also asserts that she

does not know whether Andrews was aware of Collins’ lawsuit “or if he could have

understood the nature of it,” but that Andrews’ “mental and physical state was poor from

2018” until his death. (Id. at 16–17).

In her response in opposition, Collins submitted, among other things, an affidavit

signed by her attorney, Ashton Ott (“Ott”). Ott recounts that on July 17, 2021, she was

contacted by Attorney Derek Yarbrough (“Yarbrough”), who requested a copy of Collins’

complaint. Ott sent Yarbrough a copy of the complaint the same day. On August 2, 2021,

Ott followed up with Yarbrough by email, noting that the answers were two weeks past

due. Yarbrough responded that he would reach out to Andrews and “see what the insurance

company said.” (Doc. 36-2 at 6). Shortly thereafter, Yarbrough informed Ott that Andrews

had decided not to hire him.

Collins also submitted an affidavit signed by Magrino, in which Magrino recounts

three separate in-person interactions with Andrews during the pendency of Collins’

lawsuit. Magrino first describes the circumstances of his serving Andrews with the

summons and complaint on June 29, 2021. When Magrino arrived at Andrews’ home that

day, Andrews’ daughter answered the door. Andrews eventually came to the front porch

where Magrino was, and Magrino said he had some papers for Andrews and gave Andrews

the papers. Andrews’ daughter was present when Magrino handed over the papers.

Magrino describes his interaction with Andrews as “normal,” and that Andrews was “alert

and engaged in casual conversation.” (Doc. 36-1 at 2).

Magrino also saw Andrews at Andrews’ home on October 21, 2021. As described

earlier, Magrino showed Andrews a copy of the handwritten letter from Andrews to

Collins’ attorney, and Andrews confirmed that he wrote it. According to Magrino,

Andrews was “alert, engaged in conversation and was aware that Stephanie Collins had

filed a lawsuit against him.” (Id. at 3 (emphasis added)). Andrews also indicated that he

remembered Magrino from when he served Andrews with the lawsuit. (Id.).

Finally, on October 11, 2022, Magrino personally served Andrews with Collins’

motion for attorney’s fees and costs. According to Magrino, Andrews was again “alert,

engaged in conversation and was aware that Stephanie Collins had filed a lawsuit against

him.” (Id.). Andrews also indicated that he remembered Magrino from his prior two visits.

IV. DISCUSSION

The Defendants assert that they are entitled to Rule 60(b)(1) relief because

Andrews’ poor health supplies the “good reason” for their failure to respond to Collins’

complaint, they have a meritorious defense, and Collins would not be prejudiced if the final

judgment were set aside. The Defendants contend that “there is not any clear evidence that

[Andrews] could comprehend [the complaint] or that he received any other filing regarding

the default,” although they concede the record contains evidence that Andrews was served

and that copies of the other filings were mailed to him. (Doc. 31 at 5). The Defendants

also contend that they have a meritorious defense to Collins’ lawsuit—Collins’ allegations

are untrue—and that Andrews’ poor health, financial condition, and other considerations

provide a meritorious defense to punitive damages. Additionally, the Defendants argue

that this case falls within Rule 60(b)(6), although they do not independently analyze this

provision or explain how it applies here.

To obtain relief under Rule 60(b)(1), the Defendants must show that “a good reason

existed” for failing to respond to Collins’ complaint. See In re Worldwide Web Sys., Inc.,

328 F.3d at 1295. The Defendants have proffered insufficient evidence to show that

Andrews’ health prevented him from responding to the complaint. Crum’s statement that

she does not know whether Andrews was aware of Collins’ lawsuit “or if he could have

understood the nature of it” merely reflects Crum’s knowledge; it is speculative as to

Andrews’ health or ability to respond. Moreover, Crum’s other contentions that Andrews

was in poor health and suffered from specific ailments, without more, are insufficient to

establish that his health prevented him from responding. See Brown v. Devos, 2020 WL

5892017, at *1 (M.D. Fla. Oct. 5, 2020) (“Typically, ‘[i]llness, by itself, will not support a

finding of excusable neglect.’” (citation omitted)); Abbey v. Mercedes-Benz of N. Am., Inc.,

2007 WL 879581, at *1 (S.D. Fla. Mar. 20, 2007) (opining that “illness alone is not a

sufficient basis for setting aside a judgment” under Rule 60(b)(1) and explaining that

“[s]hould illness prevent compliance with an order or deadline, the party should at least

bring illness to the attention of the court in a timely manner” (citation omitted)).2 Although

Crum contends that “there were times when [Andrews] was completely incoherent and

could not even speak or care for himself,” (doc. 31 at 16), this contention, which is

nonspecific as to a date or timeframe, is insufficient to support a finding that Andrews’

health conditions prevented him from responding to Collins’ complaint after he was served

in June 2021 and until final judgment was entered in September 2022.

Additionally, Collins has produced evidence that Andrews was aware of the lawsuit

and understood the nature of it. Evidence of Andrews’ awareness and understanding

includes (1) the letter he admittedly wrote in which he admitted making the statements in

the recording and said he stood by them, (2) his consultation with an attorney regarding the

lawsuit, (3) his conferring with his insurance carrier regarding coverage for the lawsuit,

and (4) Magrino’s affidavit testimony regarding his multiple interactions with Andrews in

which Andrews was alert and aware that Collins had filed a lawsuit against him. In sum,

the record evidence fails to establish that the Defendants had a good reason for failing to

respond to Collins’ complaint. For this reason alone, the Defendants’ motion is due to be

denied to the extent they request relief under Rule 60(b)(1).

Even if the Defendants had shown that they had a good reason for failing to respond,

they are not entitled to Rule 60(b)(1) relief for the additional, independent reason that they

2 Although the Court recognizes that Brown and Abbey are nonbinding, the Court finds the analysis in those

cases persuasive.

have failed to establish a meritorious defense. “[T]o establish a meritorious defense, the

moving party must make an affirmative showing of a defense that is likely to be

successful.” In re Worldwide Web Systems, Inc., 328 F.3d at 1296. Simply “asserting a

general denial” is insufficient. Id. The Defendants’ mere assertion that Collins’ allegations

are not true is insufficient because it is simply a general denial. See id. Moreover, the

Defendants’ unsupported assertion is contradicted by ample record evidence, including

Andrews’ own statements in the recording and the letter which corroborate Collins’

allegations.

The Defendants’ argument regarding punitive damages fares no better. As indicated

above, Collins was awarded $150,000.00 in punitive damages: three times the amount of

compensatory damages. The Defendants contend in conclusory fashion that Andrews’

poor health, his financial condition, and other considerations discussed in BMW of North

America, Inc v. Gore, 517 U.S. 559 (1996), operate as a meritorious defense to the punitive

damages award.3 They contend, for example, that Andrews “may not have had any mental

awareness in regard to the statements that he made.” (Doc. 31 at 7). This contention is

speculative, unsupported by evidence, and contradicted by record evidence showing that

Andrews was aware of the statements he made to Collins and stood by them. Moreover,

the Defendants do not elaborate regarding Andrews’ financial condition or provide

evidence sufficient to support a finding that his financial condition supplies a meritorious

defense. Their invocation of unspecified Gore considerations is also insufficient to

3 The Defendants acknowledge that Andrews’ health would not be a defense to Collins’ § 1981 claims.

establish a meritorious defense to the punitive damages award. Thus, the circumstances

cited by the Defendants, considered separately or together, fall short of the requisite

“affirmative showing of a defense that is likely to be successful.” See In re Worldwide Web

Systems, Inc., 328 F.3d at 1296; see also Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,

1283 (11th Cir. 2008) (concluding that punitive damages, which were 9.2 times greater

than compensatory damages, were not excessive in a § 1981 case involving repeated

instances of discriminatory misconduct, including multiple racially offensive comments).

Because they have failed to meet their burden to show that they had a good reason

for failing to respond to Collins’ complaint or that they have a meritorious defense, and

considering the particular circumstances of this case, see Conn. State Dental Ass’n, 591

F.3d at 1355, the Court concludes that the Defendants have failed to establish excusable

neglect warranting relief from the default judgment. Consequently, their motion is due to

be denied to the extent they request relief under Rule 60(b)(1).4

The Defendants also have not established entitlement to relief under Rule 60(b)(6).

As the Defendants acknowledge, Rule 60(b)(6) relief is available only in “cases that do not

fall into any of the other categories” in Rule 60(b)(1) through (5). United States v. Real

Prop. & Residence Located at Route 1, Box 111, Firetower Rd., Semmes, Mobile Cnty.,

920 F.2d 788, 791 (11th Cir. 1991). The Eleventh Circuit “consistently has held that

60(b)(1) and (b)(6) are mutually exclusive,” and “[t]herefore, a court cannot grant relief

under (b)(6) for any reason which the court could consider under (b)(1).” Solaroll Shade

4 The Court pretermits discussion of whether setting aside the final judgment would prejudice Collins.

& Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th Cir. 1986). The

Defendants offer no other circumstances to warrant relief from the default judgment except

for Andrews’ purported excusable neglect attributable to his health issues. Because

excusable neglect is a basis for relief under Rule 60(b)(1), and Rule 60(b)(1) and 60(b)(6)

are mutually exclusive, the Court cannot grant the Defendants relief under Rule 60(b)(6)

due to Andrews’ health issues. See Grant v. Pottinger-Gibson, 725 F. App’x 772, 777 (11th

Cir. 2018) (per curiam) (reaching a similar conclusion regarding a party’s mistake about

the legal effect of a filing);5 Solaroll, 803 F.2d at 1133. In any event, the Court is also not

persuaded that this case presents the extraordinary circumstances required to warrant Rule

60(b)(6) relief. See Buck, 580 U.S. at 123; Doe, 782 F.3d at 612. Consequently, the

Defendants’ motion is due to be denied to the extent they request relief under Rule 60(b)(6).

V. CONCLUSION

For the reasons stated, and for good cause, it is

ORDERED that the Defendants’ motion for relief from judgment (doc. 31) is

DENIED.

DONE this 19th day of October, 2023.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE

5 Although the Court acknowledges that Grant is nonbinding, the Court finds its analysis persuasive.