United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH, UNITED STATES MAGISTRATE JUDGE.
case comes before me without oral argument on Plaintiff
StarStone National Insurance Company's Motion for Entry
of Final Default Judgment Against Jane Doe, as Personal
Representative of the Estate of Zackery Ryan Ganoe (Doc. 79).
Defendant Polynesian Inn, LLC, d/b/a Days Inn of Kissimmee
(the “Insured”) has filed a response in
opposition to the motion (Doc. 86). For the following
reasons, I respectfully recommend that the motion be
denied without prejudice.
Insured operates a hotel in Kissimmee, Florida (Doc. 1 at 1;
Doc. 63, ¶ 1). It has, in connection with that hotel, a
primary commercial general liability policy issued by
Northfield Insurance Company and a follow-form excess
liability policy issued by Plaintiff (Doc. 1, ¶¶
20-21, 28). On April 11, 2017 Andrew James Bickford and
Zackery Ganoe were guests at the hotel (Id., ¶
14). While on the property, Emerita Mapp stabbed Mr. Ganoe to
death, and slashed Mr. Bickford's throat (Id.,
¶¶ 14-16). Ms. Mapp subsequently pled no-contest to
first-degree murder and attempted first-degree murder and is
serving a life sentence without the possibility of parole
(Id., ¶ 19). Polynesian is facing two claims as
a result of these attacks, one for wrongful death, the other
for grievous bodily injury both allegedly resulting from
negligent security on its hotel premises (Id.,
brings this action for a declaratory judgment to determine
the extent of its exposure under its insurance policy.
Plaintiff believes that whether there is coverage depends in
large part upon whether Mr. Ganoe and Mr. Bickford were the
victims of “assaults” and “batteries”
as those terms are defined in the Northfield policy
(Id.). On April 11, 2019 the Clerk entered a default
against Jane Doe, as Personal Representative of the Estate of
Zachery Ryan Ganoe (“the Estate”) (Doc. 62). Now,
Plaintiff seeks entry of final default judgment against the
Estate. The Insured opposes the motion on the ground that a
ruling now would create the possibility of later,
inconsistent judgments in the case (Doc. 86).
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by
these rules and that failure is shown by affidavit or
otherwise, the clerk must enter the party's
default.” Fed.R.Civ.P. 55(a). However, a
defendant's default alone does not require the court to
enter a default judgment. DIRECTV, Inc. v. Trawick,
359 F.Supp.2d 1204, 1206 (M.D. Ala. 2005). Before judgment is
entered pursuant to Rule 55(b), there must be a sufficient
basis in the pleadings to support the relief sought.
district court may enter a default judgment against a
properly served defendant who fails to defend or otherwise
appear if the factual allegations of the complaint, which are
assumed to be true, provide a sufficient legal basis for
entry of a default judgment. Nishimatsu Constr. Co. v.
Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975). In defaulting, a defendant “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.”
Id. “The defendant is not held to admit facts
that are not well-pleaded or to admit conclusions of law. In
short ... a default is not treated as an absolute confession
of the defendant of his liability and of the plaintiff's
right to recover.” Id.
facts in the complaint are sufficient to establish liability,
then the court must conduct an inquiry to ascertain the
amount of damages. See Adolph Coors Co. v. Movement
Against Racism & the Klan, 777 F.2d 1538, 1543-44
(11th Cir. 1985). “Damages may be awarded only if the
record adequately reflects the basis for the award via a
hearing or a demonstration of detailed affidavits
establishing the necessary facts.” See id. at
1544 (quoting United Artists Corp. v. Freeman, 605
F.2d 854 (5th Cir. 1979) (per curiam)).
Appropriateness of the Clerk's Entry of Default
Plaintiff requested the entry of a Clerk's default
against the Estate it explained that when this case was
filed, the personal representative of the Estate had not been
named, but Plaintiff assumed it would be decedent's
mother, hence the “Jane Doe” designation (Doc.
60, ¶ 3). The probate court gave Plaintiff until January
29, 2019 to serve the Estate (Id., ¶¶
3-4). In December 2018, Plaintiff was made aware that Jeremy
Ganoe was appointed as personal representative of the Estate
(Id., ¶ 5; Doc. 60-1; Doc. 60-2). Through
investigation, Plaintiff learned that Jeremy Ganoe resides at
612 Morgantown Street, Point Marion, PA 15474 (Id.,
¶ 6; Doc. 60-3).
Court, an individual may be served by giving a copy of the
summons and complaint to the individual personally; giving a
copy of the summons and complaint to an age-appropriate
person who lives at the individual's “dwelling or
usual place of abode;” serving a copy on the
person's agent “authorized by appointment or by
law” to receive process; or by a manner permitted under
the laws of the state in which the district court is located
for an action brought in a court of jurisdiction in that
state. Fed.R.Civ.P. 4(e).
return of service shows that on January 29, 2019, the process
server served Jeremy Ganoe by serving his co-habitant,
Zackary Ganoe who is over the age of fifteen (Doc. 56 at
1). Under the guidelines established by Rule 4(e), service on
the Estate was proper. Once served, the Estate was required
to respond on or before February 19, 2019. See
Fed.R.Civ.P. 12(a)(1)(A)(i) (“A defendant must serve an
answer within 21 days after being served with the summons and
complaint[.]”). The Estate has failed to respond to the
complaint and the time to do so has passed, thus the Clerk
properly entered default against the Estate.
It is Premature to ...