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Starstone National Insurance Co. v. Polynesian Inn, LLC

United States District Court, M.D. Florida, Orlando Division

July 19, 2019

STARSTONE NATIONAL INSURANCE COMPANY, Plaintiff,
v.
POLYNESIAN INN, LLC, ANDREW JAMES BICKFORD and JANE DOE, Defendants.

          REPORT AND RECOMMENDATION

          THOMAS B. SMITH, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         Background

         The 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., ¶ 3).

         Plaintiff 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).

         Discussion

         “When 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. Id.

         The 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.

         If the 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)).

         A. Appropriateness of the Clerk's Entry of Default

         When 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).

         In this 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).

         Plaintiff's return of service shows that on January 29, 2019, the process server served Jeremy Ganoe by serving his co-habitant, Zackary Ganoe[1] 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.

         B. It is Premature to ...


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