United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Brisbois United States Magistrate Judge.
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; 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.
reasons discussed herein, the Court recommends that
Plaintiff's Motion for Default Judgment Against Defendant
Kirk L. Bigby, [Docket No. 39], be GRANTED.
West Bend Mutual Insurance Company (hereinafter
“Plaintiff”) initiated the present action on
March 14, 2018, by filing its Complaint. [Docket No.
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).
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).
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.).
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
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.
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
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]).
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].
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.
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]).
Plaintiff's Motion for Entry of Default Judgment Against
Defendant Kirk L. Bigby. [Docket No. 39].
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]).
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). 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.
Standard of Review
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 ...