Opinion
1:21-cv-00363-JPH-DLP
07-01-2021
NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Plaintiff, v. CYNTHIA ZIMMERMAN, Defendant.
ORDER ON MOTION FOR DEFAULT JUDGMENT
JAMES PATRICK HANLON, UNITED STATES DISTRICT JUDGE
On February 16, 2021, North American filed a complaint against Defendant, Cynthia Zimmerman, seeking judicial confirmation of the recission of a life insurance policy. Dkt. 1. Ms. Zimmerman has not responded or defended this case. On April 30, 2021, Clerk's entry of default was entered against Ms. Zimmerman. Dkt. 12. North American now seeks default judgment. For the reasons below, North American's motion for default judgment is GRANTED. Dkt. [10].
A. Liability
Federal Rule of Civil Procedure 55 creates a two-step process for a party seeking default judgment. See VLM Food Trading Int'l, Inc. v. Illinois Trading Co., 811 F.3d 247, 255 (7th Cir. 2016). First, the plaintiff must obtain an entry of default from the Clerk. Fed.R.Civ.P. 55(a). Upon default, the well-pleaded allegations in the complaint relating to liability are taken as true. VLM Food, 811 F.3d at 255. Second, after obtaining entry of default, the plaintiff may seek an entry of default judgment. Fed.R.Civ.P. 55(b).
Here, an entry of default was issued against Ms. Zimmerman, dkt. 12, and North American seeks default judgment, dkt. 10. Therefore, the allegations in the complaint, when taken as true, establish liability. See Fed. R. Civ. P. 55(b).
B. Damages
While the Court must accept as true allegations relating to liability, "damages must be proved unless they are liquidated or capable of calculation." Wehrs v. Wells, 688 F.3d 886, 892 (7th Cir. 2012). Here, however, North American seeks only "a judicial declaration that the subject policy is void and effectively rescinded." See dkt. 1 at 2. Because this action seeks a declaratory judgment, North American "must apply to the court for a default judgment." Fed.R.Civ.P. 55(b)(2).
Rule 55(b) requires North American to establish the following for the grant of a default judgment: "(1) when and against what parties the default was entered; (2) the pleading as to which default was entered; (3) that the defaulting parties are neither infants nor incompetent; (4) that the defendants are not in military service; and (5) that notice has been served on the defaulting party." Firemen's Insurance Company of Washington, D.C. v. Swinney, No. 1:17-cv-00573-TWP-TAB, 2017 WL 6620882, at *2 (S.D. Ind. Dec. 27, 2017).
Here, the Clerk issued entry of default against Ms. Zimmerman on April 30, 2021, "for failure to plead or otherwise defend this action." Dkt. 12. And North American submitted an affidavit stating that, based on the information in its policy file, Ms. Zimmerman is neither infant nor incompetent. Dkt. 11 at 2. North American also declared that Ms. Zimmerman is not currently in military service and attached a Servicemember's Civil Relief Act Status Report dated April 13, 2021. Id.; dkt. 11-1. Finally, North American stated that it personally served the Summons and Complaint on Ms. Zimmerman on February 24, 2021, and filed proof of service. Dkt. 11 at 2, dkt. 5.
Conclusion
North American's motion for default judgment is GRANTED. Dkt [10]. The Court DECLARES that: North American shall have Judgment of recission of Policy '475. Policy '475 is hereby rescinded and declared to be void, extinguishing any rights or benefits that would otherwise have been available under Policy '475, and that might otherwise be claimed by any person. Final judgment shall issue by separate entry.
SO ORDERED.
Distribution:
Nicholas J. Bezier
GODFREY & KAHN, SC
nbezier@gklaw.com
Paul F. Heaton
GASS WEBER MULLINS LLC
pheaton@gklaw.com
Derek Leonard Mandel
MANDEL HORN, P.C.
dmandel@mhmrlaw.com
Cynthia Zimmerman
4511 West South Street
Trafalgar, IN 46181