West Bend Mutual Insurance Co. v. Jensen

          REPORT AND RECOMMENDATION

          Leo I. Brisbois United States Magistrate Judge.

         This matter came before the undersigned United States Magistrate Judge pursuant to an Order of Reference, [Docket No. 50], made in accordance with the provisions of 28 U.S.C. § 636, and upon Plaintiff's Motion for Default Judgment Against Defendant Kirk L. Bigby. [Docket No. 39]. The Court held a hearing on the present Motion on September 19, 2018, after which Plaintiff's Motion was taken under advisement. (Minute Entry [Docket No. 61]). At the September 19, 2018, Motions Hearing, Elisa Hatlevig appeared for and on behalf of the Plaintiff; Kevin Pillsbury appeared for and on behalf of the Bluefin Bay Defendants;^[1] and Paul A. Thompson appeared for and on behalf of the Trustee Defendants. (Id.). There was no appearance at the September 19, 2018, Motions Hearing on behalf of Defendant Bigby.

         For the reasons discussed herein, the Court recommends that Plaintiff's Motion for Default Judgment Against Defendant Kirk L. Bigby, [Docket No. 39], be GRANTED.

         I. Background

         Plaintiff West Bend Mutual Insurance Company (hereinafter “Plaintiff”) initiated the present action on March 14, 2018, by filing its Complaint. [Docket No. 1].^[2] Through its Complaint, Plaintiff seeks an Order of this Court declaring the terms and conditions of the Commercial General Liability Policy at issue in the present case “and what obligations, if any, exist” for Plaintiff to defend and “indemnify Kirk Bigby in the underlying” state court civil action. (Compl., [Docket No. 1], at 13).

         The record before the Court indicates that on the night of December 8, 2015, Defendant Tofte Management d/b/a Bluefin Bay held an event at Bluefin Bay Resort for its employees, such as Defendant Bigby, and their guests which Defendant Kirk Bigby attended. (Id. at 3). The event included dinner, drink tickets, and “fake money” for gambling. (Id.). Marcus Roberts was an employee of the company providing the gambling tables and dealers for the event. (Id. at 4).

         After the conclusion of the event Defendant Bigby encountered Mr. Roberts outside the event in the morning hours of December 9, 2015. (Id.). During this encounter Defendant Bigby fatally shot Mr. Roberts. (Id.). As a result, Defendant Bigby was criminally charged in Minnesota State Court “with Second Degree Murder with Intent and Second Degree Murder without Intent (while committing a felony).” (Id.). On May 26, 2017, Defendant Bigby pled guilty to “Second Degree Murder without Intent (while committing a felony).” (Id.).

         On December 4, 2017, the Trustee Defendants in the present case filed a state court civil action against the Bluefin Bay Defendants, as well as, Defendant Bigby. (Id. at 5). Because Plaintiff insured the Bluefin Bay Defendants under a Commercial General Liability policy at the time of the December 9, 2015, incident, and because Defendant Bigby was an employee of the Bluefin Bay Defendants at the time of the incident, Plaintiff is defending Defendant Bigby under a reservation of rights in the underlying state court civil action. (Id.).

         As noted above, Plaintiff filed the present Complaint, [Docket No. 1], on March 14, 2018. Plaintiff caused Defendant Bigby to be personally served with a summons and a copy of the Complaint on March 23, 2018. (Summons Returned Executed [Docket No. 25]). Accordingly, Defendant Bigby's response to the present Complaint was due April 13, 2018. Plaintiff also effected service upon the Bluefin Bay Defendants and the Trustee Defendants. (Summons Returned Executed [Docket No. 26-36]).

         On April 4, 2018, the Trustee Defendants filed their Answer, [Docket No. 4], to Plaintiff's Complaint. On April 6, 2018, the Bluefin Bay Defendants filed their Answer. [Docket No. 7].

         On July 13, 2018, after Defendant Bigby's time to respond to the present Complaint had lapsed without any response or appearance on his behalf, the undersigned issued an Order instructing Plaintiff to: (1) Notify Defendant Bigby within 3 business days that he was required to file a responsive pleading or move for an extension of time to do so; and (2) file an application for entry of default against Defendant Bigby unless within 5 business days, Defendant Bigby filed the required pleading or advised the Court in writing of any good cause for not doing so. (Order [Docket No. 38]).

         On August 20, 2018, after Defendant Bigby's time to respond had lapsed without any response or appearances on his behalf, Plaintiff filed an Application for Clerk's Entry of Default against Defendant Bigby. [Docket No. 53]. On August 23, 2018, the Clerk of Court entered a Clerk's Entry of Default against Defendant Bigby. [Docket No. 55].

         On July 24, 2018, Plaintiff filed the present Motion for Entry of Default Judgment Against Defendant Kirk L. Bigby, [Docket No. 39], along with various documents supporting its Motion. [Docket Nos. 41, 42, 45]. Although they were provided notice of the present Motion, [Docket No. 45], neither the Bluefin Bay Defendants nor Defendant Bigby responded to the present Motion. On September 10, 2018, the Trustee Defendants filed an untimely response to the present Motion. [Docket No. 57].^[3]

         On August 15, 2018, the Honorable John R. Tunheim referred the present Motion to the undersigned United States Magistrate Judge. (Order of Reference [Docket No. 50]).

         II. Plaintiff's Motion for Entry of Default Judgment Against Defendant Kirk L. Bigby. [Docket No. 39].

         Plaintiff's motion for default judgment seeks an Order of this Court entering “default judgment against Defendant Kirk Bigby for failure to properly answer the Complaint or otherwise plead.” (Plf.'s Mot. [Docket No. 39]).

         In their written response the Trustee Defendants argued that Plaintiff is not entitled to default judgment against Defendant Bigby for a number of reasons. (Defs.' Mem., [Docket No. 57], at 1-4). The Trustee Defendants at the Motions Hearing, however, appeared to concede that they lack the standing necessary to make such an argument when their counsel acknowledged the Trustee Defendants were not attempting to be “heard standing in the shoes of Defendant Bigby.” (September 19, 2018, Motions Hearing, Digital Record at 10:31-10:32).^[4] Instead, the Trustee Defendants' counsel stated that he was only there for his own clients because they had “a right to be heard, ” and the admission of fact in the current case could have consequences on the underlying state court matter. (Id. at 10:31-10:42). To the extent the Trustee Defendants do argue that Plaintiff is not entitled to default judgment against Defendant Bigby, the Trustee Defendants fail to provide, and this Court has not found, any authority which would provide that the Trustee Defendants are entitled to argue on behalf of Defendant Bigby that default judgement against Defendant Bigby is improper.

         A. Standard of Review

         Rule 12(a)(1) of the Federal Rules of Civil Procedure directs defendants to file an answer or other responsive pleading within twenty-one (21) days after receiving service ...