United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
the Court is a Report and Recommendation from the Magistrate
Judge, recommending the Court grant Amber Carter's Motion
for Default Judgment against the remaining defendants. (Doc.
No. 26.) Joe Neel, a nonparty in this case who claims to be
an advocate for Virginia Neel, filed timely objections. (Doc.
No. 27.) Virginia Neel cannot be represented by a person who
is not an attorney. 28 U.S.C. § 1654; see Eagle
Assoc. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir.
1991) (holding that § 1654 “does not allow for
unlicensed laymen to represent anyone other than
themselves”). Nonetheless, out of an abundance of
caution, the Court has considered Joe Neel's objections
as if they were from Virginia Neel. For the following
reasons, the Objections are overruled and the Report and
Recommendation is adopted.
Federal Rule of Civil Procedure 55(c), the Court may set
aside the Clerk's Entry of Default (Doc. No. 16) for good
cause. Factors to consider when determining whether good
cause exists include “whether (1) the default was
willful, (2) a set-aside would prejudice the plaintiff, and
(3) the alleged defense was meritorious.” United
Coin Meter Co., Inc. v. Seaboard Coastline RR.,
705 F.2d 839, 844 (6th Cir. 1983) (citing Medunic v.
Lederer, 533 F.2d 891, 893 (3d Cir. 1976)). Neel's
two objections go to prejudice and whether she has a
an interpleader action to determine which of the three
defendants is entitled to the proceeds from Eric
Hazelwood's annuity fund. (Doc. No. 1.) All parties agree
that upon Hazelwood's death, if there is no designee for
the benefits, Hazelwood is deemed to have designated:
“(a) his surviving spouse; or if none (b) his surviving
children, in equal shares; or if none (c) his surviving
parents, in equal shares; or if none (d) his surviving
brothers and sisters, in equal shares; or if none (e) his
estate; in that order of priority, as his beneficiary.”
(Doc. No. 1 at 2.)
appears that (a) through (d) do not apply because none exist.
Although Virginia Neel was the biological parent of
Hazelwood, Cecil and Imogene Boone subsequently legally
adopted him, making them the “surviving parents”
under subsection (c). Because Cecil and Imogene Boone
predeceased Hazelwood, the Monroe County Commission in West
Virginia named Carter the sole beneficiary of Hazelwood's
estate (Doc. No. 29-1 at 1), and therefore under subsection
(e), she is entitled to the annuity benefits.
objects that she should be counted as a “surviving
parent” under subsection (c) because she is
Hazelwood's biological mother who raised him. (Doc. No.
27.) She argues that her parents, Cecil and Imogene Boone,
adopted Hazelwood because Cecil Boone was terminally ill with
cancer, and Neel wanted Hazelwood to receive Cecil
Boone's social security benefits. (Id. at 2.) In
other words, while Cecil and Imogene Boone were the adoptive
parents so that Hazelwood could get money, Neel did not stop
raising her child as the mother. (Id.) This can be a
meritorious defense only if “there is some possibility
that the outcome of the suit after a full trial will be
contrary to the result achieved by default.”
Dassault Systemes, SA v. Childress, 663 F.3d 832,
843 (quoting United States v. $22, 050.00 U.S.
Currency, 595 F.3d 318, 326 (6th Cir. 2010)). Here, the
controlling West Virginia law is clear: “Upon the entry
of such order of adoption, any person previously entitled to
parental rights . . . shall be divested of all legal rights,
including the right of inheritance from or through the
adopted child under the statutes of descent and distribution
from the state . . . .” In re Hunter H., 744
S.E.2d 228, 232 ( W.Va. 2013) (citing W.Va. Code §
48-22-703(a)). Under Cecil and Imogene Boone's adoption
of Hazelwood, Neel was divested of her parental rights.
contends that Hazelwood's will is still being probated
under protest. (Doc. No. 27 at 2.) However, Carter attached a
certified letter from the Clerk of the Monroe County
Commission stating that the Commission approved the final
settlement of Hazelwood's estate on January 3, 2018, and
the estate was ordered closed at that time. (Doc. No. 29-1 at
1.) This objection is overruled.
has not given a reason for her failure to appear prior to the
Clerk's Entry of Default, nor has she shown any
meritorious defense. Although there is no allegation that
Carter or the Pension Plan likely would be severely
prejudiced by any delay, the other two factors outweigh
because there appears no reason to delay entry of judgment.
Good cause does not exist to set aside the Clerk's Entry
the Report and Recommendation (Doc. No. 26) is
ADOPTED. Amber Carter's Motion for
Default Judgment (Doc. No. 17) is GRANTED.
The Annuity Fund is directed to pay Carter the proceedings of
the annuity. No. attorney's fees are awarded to any
party. The ...