United States District Court, M.D. Tennessee, Nashville Division
NEWBERN, MAGISTRATE JUDGE
WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion for Entry of
Default Judgment Against Defendants Cynthia Tyler-Howard
a/k/a Cynthia Howard and RuQayyah Howard (Doc. No. 24).
Plaintiff filed the instant action alleging claims of civil
fraud, unjust enrichment, conversion, and negligence against
Cynthia Howard; aiding and abetting fraud against RuQayyah
Howard and Kenneth Purvis; and insurance fraud and
constructive trust against all Defendants. (Doc. No. 1).
Plaintiff filed proof of service of process of Cynthia Howard
and RuQayyah Howard, but have not served Kenneth Purvis. On
August 8, 2019, the Clerk granted Entry of Default as to
Cynthia Howard and RuQayyah Howard. (Doc. No. 23).
STATEMENT OF FACTS 
Allstate Life Insurance Company of New York (“Allstate
Life”), issued a structured settlement annuity
contract, No. 95004776 (the “Annuity”), by which
it was obligated to make monthly payments of $3, 820.00, with
a monthly 3% increase. The term of the payments was August
20, 1994 through July 20, 2014, and thereafter for the life
of Kamar Purvis. Monthly payments after August 20, 2014, were
contingent on Kamar Purvis being alive. Kamar Purvis died on
July 8, 2004. Allstate Life had no notice of his death and
continued to deposit payments into a Citibank account in the
name of Cynthia Tyler M/N/G Kamar Purvis. Allstate continued
to deposit payments into the Citibank account until July 20,
alleges Defendants held out Kamar to be alive in order to
continue to receive payments. In August 2007, Allstate Life
was served with a petition for transfer of the structured
settlement payment to Henderson Receivables Original LLC. The
petition included an affidavit and several other documents
purportedly signed by Kamar Purvis. (Doc. No. 1-9). On July
11, 2010, Cynthia Howard wrote to Allstate Life requesting
information as guardian to Kamar Purvis. (Doc. No. 1-11). On
July 16, 2018, Cynthia Howard submitted an information
request form to Allstate Life indicating that Kamar Purvis
was “living” and giving his “knew [sic]
address” in Nashville, Tennessee. (Doc. No. 1-12). On
November 9, 2018, Cynthia Howard called Allstate and told the
Allstate representative that Kamar Purvis was 31 years old
and living with her.
Life claims it paid $338, 831.67 to Cynthia Howard for the
benefit of Kamar Purvis between August 20, 2017 and July 20,
2018. (Doc. No. 14). Plaintiff claims these payments also
unjustly enriched Cynthia Howard's other children,
RuQayyah Howard and Kenneth Purvis, because “during
their minority, [Kenneth Purvis and RuQayyah Howard] resided
with [Cynthia Howard] and inevitably benefited from the funds
[Cynthia Howard] was receiving and to which she was not
entitled.” (Comp., Doc. No. 1, ¶ 41).
STANDARD OF REVIEW
Rule 55(b) governs the entry of default judgment. “When
an application is made to the court under Rule 55(b)(2) for
the entry of judgment by default, the district judge is
required to exercise sound judicial discretion in determining
whether the judgment should be entered.” 10A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civ.3d § 2685 (1998).
“This element of discretion makes it clear that the
party making the request is not entitled to a default
judgment as of right.” Id. The court should
deny a motion for default judgment when the complaint fails
to state a claim upon which relief can be granted. Lee v.
United Serv. Assocs., Inc., No. 4:07-cv-57, 2007 WL
2788459 at * 1 (E.D. Tenn. Sept. 24, 2007) (citing Bailey
v. Harrison, 107 F.3d 870 (6th Cir. 1997)).
matters where default judgment is sought against some, but
not all, defendants, Rule 54(b) is also implicated. Under its
terms, “when multiple parties are involved, the court
may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.”
Fed.R.Civ.P. 54(b). Federal courts have long followed a
general rule that, when default is entered against fewer than
all defendants in a multi-defendant action in which joint
liability is claimed, default judgment should be withheld
until merits determinations are made for those defendants not
in default. See De'Mario Driver v. Fabish, No.
3:13-cv-01087, 2017 WL 413719 at * 1 (M.D. Tenn. Jan. 31,
2017) (citing Frow v. De La Vega, 82 U.S. 552, 554
(1874)). A court may enter a default judgment against one of
several co-defendants upon express determination that there
is no just reason for delay. See Richardson v.
Russell, No. 3:15-cv-869, 2016 WL 2939909 at * 2 (M.D.
Tenn. Apr. 26, 2016).
seeks default judgment against Cynthia Howard and RuQayyah
Howard in the amount of $338, 831.67 for the amount of the
Overpaid Funds, $103, 419.58 in prejudgment interest (through
August 13, 2019), plus daily interest accruing thereafter in
the amount of $92.83 from August 13, 2019, until the date of
entry of judgment. In addition, Plaintiff seeks the issuance
of a writ of possession against Defendants as to all real and
personal property owned by Defendants, and reasonable
attorney's fees and expenses.
District Court Clerk granted Plaintiff's motion for entry
of default against Cynthia Howard and RuQayyah Howard on
August 8, 2019. Plaintiff filed affidavits in support of its
claim for damages. (Doc. Nos. 11 and 16).
case, Plaintiff brings claims for civil fraud, unjust
enrichment, conversion, and negligence against Cynthia
Howard; for aiding and abetting fraud against RuQayyah
Howard, and Kenneth Purvis; and for insurance fraud and
constructive trust against all Defendants. (Doc. No. 1). A
review of the Complaint shows a dearth of factual allegations
against RuQayyah Howard and Kenneth Purvis. The Complaint
asserts that RuQayyah Howard and Kenneth Purvis have been
“unjustly enriched” because they resided with
their mother, Cynthia Howard, while they were minor children
and “inevitably benefited from the funds [Cynthia
Howard] was receiving.” (Compl., Doc. No. 1,
¶¶ 9, 41). ...