United States District Court, M.D. Georgia, Macon Division
ORDER DENYING PLAINTIFF'S MOTION FOR ENTRY OF
E. SELF, III, JUDGE.
the Court is Plaintiff Auto-Owners Insurance Company's
Motion for Entry of Default Judgment [Doc. 16] against
Defendant Turner-Ragan American Legion, Georgia Post 594
(“American Legion”). Plaintiff filed this motion
pursuant to Federal Rule of Civil Procedure 55(b)(2) after
the Clerk's entry of default against Defendant American
Legion on November 28, 2018. [Doc. 16, at ¶ 5]. After
reviewing Plaintiff's submissions and the applicable law,
the Court DENIES Plaintiff's motion.
April 28, 2016, Defendant Lawrence Smith allegedly sustained
an injury when he fell after sitting in a broken chair during
a visit to Defendant American Legion's facility. [Doc. 1,
at ¶ 10-11]. At the time of Defendant Smith's
injury, Plaintiff alleges that a general commercial liability
insurance policy was in effect between it and Defendant
American Legion. [Id. at ¶ 22]. On July 19,
2016, Defendant American Legion allegedly received notice
from counsel for Defendant Smith that he intended to make a
claim for injuries arising out his fall. [Id. at
¶ 15]. Plaintiff asserts that it did not receive notice
of this claim until January 27, 2017. [Id. at ¶
16]. On April 11, 2018, Defendants Lawrence and Everlene
Smith filed a complaint in the State Court of Houston County,
Georgia, against Defendant American Legion seeking damages
for Defendants Lawrence and Everlene Smiths'
injuries. [Doc. 1, at ¶ 17; Doc. 11, at ¶
17; Doc. 12, at ¶ 17]; see also [Doc. 1-2].
Although Plaintiff is not a party to the state court
proceedings, it allegedly faces potential liability because
Defendant “American Legion seeks a defense and
indemnity under the [p]olicy for the claims asserted against
it” in the state court proceedings. [Doc. 1, at ¶
filed this action seeking a declaratory judgment that
“[it] has no duty to defend or indemnify American
Legion.” [Id. at ¶ 30]. Plaintiff argues
that Defendant American Legion failed to satisfy the
insurance policy's notice requirement by waiting
approximately six months before notifying it of Defendant
Smith's injury. [Id. ¶ 25]. Plaintiff
further argues that the notice requirement is a precondition
to its obligation to provide coverage under the insurance
policy and that Defendant American Legion's failure to
satisfy this precondition discharges any obligation Plaintiff
may have had under the policy to defend or indemnify
Defendant American Legion. [Id.].
filed this action on June 21, 2018 and Defendant's
Lawrence and Everlene Smith filed Answers on July 23, 2018;
however, Defendant American Legion has not filed an answer or
otherwise acknowledged this action. See [Docs. 1, 11
& 12]. After the period for Defendant American Legion to
file a responsive pleading expired, Plaintiff applied for the
Clerk of Court to enter a default against Defendant American
Legion. [Doc. 15]. The Clerk entered the default and
Plaintiff filed the instant motion asking the Court to enter
a default judgment against Defendant American Legion. See
generally [Doc. 16]. Defendant American Legion has yet
to acknowledge this action.
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). But the clerk's entry
of default does not require the Court to enter a default
judgment and the Eleventh Circuit has repeatedly held that
“default judgments are generally
disfavored.”Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1245 (11th Cir. 2015); DIRECTV, Inc. v.
Trawick, 359 F.Supp.2d 1204, 1206 (M.D. Ala. 2005)
(noting that clerk's entry of default does not require
entry of default judgment).
of default judgment is clearly inappropriate when only one of
the defendants is in default. See Frow v. De La
Vega, 82 U.S. 552, 554 (1872) (“[A] final decree
on the merits against the defaulting defendant alone, pending
the continuance of the cause, would be incongruous and
illegal.”). Applying the rule announced in
Frow, courts in this Circuit routinely deny motions
for default judgment in cases with facts that are materially
identical to the facts of this case. See, e.g.,
Owners Ins. Co. v. Daniels, Civil Action No.
7:12-cv-27 (HL), 2012 U.S. Dist. LEXIS 61307, at *3 (M.D. Ga.
May 2, 2012) (“When a default is entered against one
defendant in a multi-defendant case, the preferred practice
is for the court to withhold granting a judgment until the
trial of the action on the merits against the remaining
defendants. This is especially true when an insurer seeks a
declaratory judgment that an insurance policy does not
trigger a duty to defend or indemnify both the defaulting
defendant and the other named defendants who may appear and
contest the insurer's allegations.”) (internal
citations and quotations omitted); Auto-Owners Ins. Co.
v. Envtl. House Wrap, Inc., No. 3:17-cv-817-J-34PDB,
2018 WL 3244008, at *3 (M.D. Fla. May 14, 2018); Atrium 5
Ltd. v. Hossain, Case No: 6:16-cv-1964- Orl-22TBS, 2017
WL 2562543 (M.D. Fla. May 26, 2017); Clarendon Am. Ins.
Co. v. All Bros. Painting, Inc., Case No:
6:13-cv-934-Orl-37TBS, 2013 WL 12149556, at **4-5 (M.D. Fla.
Sept. 12, 2013). In light of the United States Supreme
Court's direction and this Circuit's precedent in
cases with this procedural posture, the Court denies
Plaintiff's motion for default judgment.
reasons discussed above, the Court DENIES
Plaintiff's motion for entry of default judgment.