United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
before the Court are the Third Motion for Default Judgment
and supporting brief (ECF Nos. 65-66) filed on July 30, 2018
by Plaintiff, Alfa Vision Insurance Company
(“Alfa”). None of the defendants have filed a
responsive pleading. The motion was referred to the
undersigned on July 31, 2018, and it is ready for report and
filed its Complaint for Declaratory Judgment on April 26,
2017. (ECF No. 1). As the complaint improperly included
information that should have been redacted under Fed.R.Civ.P.
5.2, the Court entered an Order (ECF No. 5) striking the
complaint and directing the Plaintiff to file an amended
complaint, properly redacted in compliance with Rule 5.2.
Alfa filed its Amended Complaint for Declaratory Judgment on
April 27, 2017. (ECF No. 7).
28, 2017, Alfa filed a motion for default judgment which was
denied without prejudice on July 13, 2017, to give Separate
Defendant Yair Garza's estate the full opportunity to
litigate the claim against him. (ECF Nos. 28, 31). With leave
of the Court, Alfa filed amended complaints substituting the
Centennial Bank Trust Department, as Personal Special
Representative of the Estate of Yair Garza, deceased, on
August 24, 2017, and adding State Farm Fire & Casualty
Company as the homeowners' insurance carrier for
Christian Moya on November 8, 2017. (ECF Nos. 38, 43).
February 5, 2018, Alfa filed a Second Motion for Default
Judgment (ECF Nos. 49-50), which was referred to the
undersigned on February 16, 2018. On February 22, 2018, Alfa
filed an amendment to its motion (ECF Nos. 53-54), which was
also referred to the undersigned on February 28, 2018. On
March 7, 2018, the undersigned issued a report and
recommendation in connection with these two motions
recommending the denial of the motions without prejudice and
the Clerk of Court be directed to enter default against
Centennial Bank and State Farm. (ECF No. 57). It was further
recommended that guardians ad litem be appointed to represent
the minor defendants, O.M. and G.A. Id. Chief U.S.
District Judge P. K. Holmes, III adopted the report and
recommendation on March 12, 2018. (ECF No. 58).
April 23, 2018, the undersigned appointed counsel as
guardians ad litem to represent the minor defendants, O.M.
and G.A., in compliance with the safeguard in Rule 55(b) of
the Federal Rules of Civil Procedure. (ECF No. 61). On July
30, 2018, Alfa filed the instant Third Motion for Default
Judgment and supporting brief. (ECF Nos. 65-66). None of the
Defendants have answered the Second Amended Complaint or
filed a response to the motion, and the Clerk has entered a
default against all Defendants. (ECF Nos. 30, 60, 67).
Motion, Alfa moves the Court for a default judgment against
all Defendants. (ECF Nos. 65-66). Specifically, pursuant to
A.C.A. §§ 16-111-101, et. seq., and
Fed.R.Civ.P. 57, Alfa seeks a declaratory judgment that there
is no coverage under its policy of insurance for any bodily
injury or property damage sustained by any party arising out
of the September 3, 2016, motor vehicle accident, and Alfa
further seeks a declaratory judgment that there is no duty on
its part to provide a defense and/or indemnity to any party,
including but not limited to, Mora and/or Mata, in the event
any civil suit is filed against them. Id.
a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default.” Fed.R.Civ.P. 55(a).
None of the Defendants have answered or otherwise defended in
this matter, and the Clerk has entered default against each
Defendant. Entry of default by the Clerk is a prerequisite to
the grant of a default judgment under Rule 55(b), but whether
to grant default judgment is a separate question within the
discretion of the Court. See Murray v. Lene, 595
F.3d 868, 871 (8th Cir. 2010). After default has been
entered, the defendant is deemed to have admitted all
well-pleaded factual allegations in the complaint.
Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir.
2010); see also Fed. R. Civ. P. 8(b)(6) (stating
that any “allegation other than one relating to the
amount of damages is admitted if a responsive pleading is
required and the allegation is not denied”).
Nonetheless, before the Court may enter a default judgment
setting forth the declaration Alfa seeks, it must be
satisfied that the moving party is entitled to such judgment
on the basis of the sufficiency of the complaint and the
substantive merits of Alfa's claim. See Murray,
595 F.3d at 871 (internal citation omitted). At that
juncture, “it remains for the [district] court to
consider whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law.” Id.
upon the default of the Defendants in this action, and for
purposes of the instant motion seeking default judgment, the
following facts from Alfa's Second Amended Complaint for
Declaratory Judgment are deemed admitted by the Defendants.
issued an Arkansas private passenger automobile policy of
insurance, Policy No. 11-03-007659951, to its named insured,
Separate Defendant Adele Amaya-Mata (“Mata”),
with a policy period of July 7, 2016 through January 7, 2017,
insuring a 1994 Honda Accord LX, VIN J8CD5636RCO94816. (ECF
No. 43, ¶ 13). On September 3, 2016, Mata's son,
Separate Defendant German Mora (“Mora”), who was
then a minor and has since reached the age of majority, and
who was then a resident of Mata's household, was involved
in a motor vehicle accident while driving the insured
vehicle. (Id., ¶ 14). Mora did not have a
valid, in force, operator's license or permit at the time
of the motor vehicle accident. (Id., ¶ 15). The
motor vehicle accident occurred when Mora, who was fleeing
from an Arkansas State Police Trooper on Midland Boulevard in
Fort Smith, Sebastian County, Arkansas at a high rate of
speed, lost control of the insured vehicle and crashed into
multiple other vehicles, as well as a home. (Id.,
¶ 16). Damage was caused to the insured vehicle, as well
as to motor vehicles owned by Separate Defendant Federico
Alvarado (“Alvarado”), Separate Defendant
Valentino Uribe (“Uribe”), and Separate Defendant
Christian Moya (“Moya”). (Id., ¶
was also done to a home owned by Separate Defendant Claudia
Salinas (“Salinas”) located at 4239 Wirsing
Avenue, Fort Smith, Arkansas. (Id., ¶ 18).
Salinas and G. A., a minor, were injured when the insured
vehicle collided into the vehicles of Alvarado, Uribe and
Moya, causing them to impact Salinas' home, resulting in
interior damage to the home, including the room in which
Salinas and G. A. were sleeping. (Id., ¶ 19).
Separate Defendant O. M. and Separate Defendant Yair Garza,
deceased, were passengers in the insured vehicle at the time
of the accident, and they suffered injuries and underwent
medical treatment, resulting in medical bills being incurred.
(Id., ¶¶ 20, 21). Mora was not listed as a
driver or operator on Mata's application for the policy
(Id., ¶ 24), and he was operating the insured
vehicle at the time of the accident without a valid, in
force, operator's license or permit and, per the terms of
the policy, he had no reasonable belief of entitlement to do
so (Id., ¶ 25).
contends there is no coverage under its insurance policy
issued to Separate Defendant Adele Amaya-Mata for any bodily
injury, wrongful death and/or property damage proximately
caused by the September 3, 2016 accident, including a
subrogation claim made by State Farm to Alfa for monies it
paid to Separate Defendant Moya pursuant to his
homeowner's insurance claim. Alfa further contends it has
no duty to defend and/or indemnify Separate Defendants Mata
and/or Mora in the event any suit is filed against either
and/or both arising out of the accident and seeks a
declaration from this Court to that effect. ...