Moses v. Nicholson Construction Company, et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT MOSES 	CIVIL ACTION
VERSUS 	NO. 24-2874
NICHOLSON CONSTRUCTION COMPANY, 	SECTION: “D” (2)
ET AL.
ORDER AND REASONS
Before the Court is a Motion to Set Aside Clerk of Court’s Entry of Default,
filed by Defendant Nicholson Construction Company (“Nicholson”).1 Plaintiff Robert
Moses has filed an Opposition.2 After careful consideration of the record, the parties
memoranda, and the applicable law, the Court GRANTS the Motion.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
This suit arises out of an automobile accident.3 On September 18, 2023, in
Jefferson Parish, Louisiana, Plaintiff was operating his 2016 GMC Terrain when it
collided with a 2018 Ford Pickup Truck owned by Nicholson and operated by
Defendant Mac Nam.4 Plaintiff allegedly suffered physical and mental injuries
resulting from this accident.5
On September 16, 2024, Plaintiff filed suit in the 24th Judicial District Court
for the Parish of Jefferson, State of Louisiana, against Nicholson, Mac Nam, Zurich
American Insurance Company and Progressive Paloverde Insurance Company.6 	In
1 R. Doc. 27.
2 R. Doc. 28. Nicholson did not file a reply brief.
3 R. Doc. 9-1 at p. 1.
4 Id. at pp. 1–2.
5 Id. at p. 2.
6 Id. at p. 1. Plaintiff filed a Voluntary Motion to Dismiss all claims against Zurich American Insurance
Company, which the 24th Judicial District Court granted on December 2, 2024. R. Doc. 9-3 at pp. 1–
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his Petition, Plaintiff specifically prayed “that there be judgment herein in favor of
petitioner and against defendants jointly, severally and in solido.”7 On November 13,
2024, Plaintiff filed a First Supplemental and Amended Petition for Damages, setting
forth an additional allegation that his claims exceed $75,000.8 Thereafter, on
December 	13, 	2024, 	Nicholson 	filed 	a 	Notice 	of 	Removal 	in 	this 	Court 	and
subsequently filed an Amended Notice of Removal on January 3, 2025.9
On April 4, 2025, the Court issued an Order to Show Cause directing Plaintiff
to file proof of service or show good cause, in writing, why the defendant, Mac Nam,
should not be dismissed for failure to prosecute pursuant to FRCP 4(m).10 No
response was filed.11 The Court issued a Second Order to Show Cause, directing the
same, on April 22, 2025.12 Plaintiff filed a Memorandum in Response to the Second
Order to Show Cause stating that Mac Nam was served via certified mail,13 but
indicated that the “green card” was never returned by the Post Office to the office of
Plaintiff’s 	counsel.14 The 	Court 	notes 	that 	the 	Postal 	Service 	tracking 	return
suggested that service was merely “left with individual” and fails to identify Mac
Nam.15 On October 8, 2025, the Court held a telephone status conference to discuss
2. Plaintiff also filed a Voluntary Partial Motion to Dismiss With Prejudice all claims asserted against
Progressive Paloverde Insurance Company in this Court. R. Doc. 11. The Court granted the Motion on
February 5, 2025. R. Doc. 13.
7 R. Doc. 9-1 at p. 3.
8 R. Doc. 9-2.
9 R. Doc. 1; R. Doc. 9.
10 R. Doc. 14.
11 Counsel subsequently apologized to the Court for the oversight, and the Court accepts the sincerity
of that apology. See R. Doc. 16 at p. 1.
12 R. Doc. 15.
13 R. Doc. 16.
14 Id. at p. 1.
15 R. Doc. 16-2.
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the 	status 	of 	effectuating 	service 	against 	Mac 	Nam, 	wherein 	Plaintiff 	sought
additional time to effectuate service on that defendant.16 	The Court granted
Plaintiff’s request for additional time and issued a Third Order to Show Cause
directing Plaintiff to file proof of service or show good cause, in writing, why the
defendant Mac Nam should not be dismissed for failure to prosecute pursuant to
FRCP 4(m).17
Subsequently, on October 16, 2025, Jodi Luckoski, a paralegal employed at the
office of Plaintiff’s counsel, filed an affidavit into the record attesting to the fact that
“she 	mailed 	the 	Citation, 	Petition 	for 	Damages, 	Interrogatories, 	Request 	for
Production of Documents, and Notice of removal” to Mac Nam at his residence at 199
Pierce Street, Apt. A834, Somerset, NJ 08873.18 Service was received and signed for
by “K. Kristen.”19 On November 12, 2025, Plaintiff filed a Motion for Entry of Default
against Mac Nam.20 Nicholson opposed the Motion.21 The Clerk of Court entered
default against Mac Nam on November 17, 2025.22
One day later, on November 18, 2025, Nicholson filed the instant Motion to Set
Aside Clerk of Court’s Entry of Default.23 In the Motion, Nicholson alleges that
“Plaintiff failed to render sufficient service of process on Mac Nam in accordance with
La. R.S. 13:3204. As such, good cause exists to set aside the Entry of Default entered
16 R. Doc. 20.
17 Id.
18 R. Doc. 21.
19 Id.
20 R. Doc. 24.
21 R. Doc. 25.
22 R. Doc. 26.
23 R. Doc. 27.
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against Mac Nam[]”24 pursuant to Fed. R. Civ. P. 55(c).25 Nicholson specifically avers
that “Mr. Nam was not and has not been served in this matter. He does not reside at
199 Pierce Street, Apt. A834, Somerset, NJ 08873. Mr. Nam’s correct address is 3613
Biscayne Pl., Philadelphia, PA 19154. Therefore, Mr. Nam was not properly served
because service was attempted at an incorrect address.”26 Nicholson further contends
that good cause exists to set aside the entry of default against Mac Nam because the
default was not willful and that setting aside the default would not prejudice
Plaintiff.27 Thus, according to Nicholson, its Motion should be granted.28
Plaintiff opposes the Motion.29 As an initial matter, Plaintiff argues that:
Nicholson has not demonstrated any real ‘standing’ to request the relief
sought. The relief sought is strictly on behalf of Mac Nam who has
neither appeared in this matter on his own behalf or through counsel.
Traditionally, standing requires an allegation that the one seeking relief
has suffered an injury in fact. Nicholson has not set forth any ‘facts’
indicating that they suffered injury as a result of the entry of default
against Mac Nam.30
Therefore, according to Plaintiff, “Nicholson fails to demonstrate a true interest in
setting aside this default[]”31 and thus Nicholson’s Motion should be denied.32
24 R. Doc. 27-1 at p. 1.
25 Id.
26 Id. at p. 3.
27 Id. at p. 4.
28 Id.
29 R. Doc. 28.
30 Id. at p. 2.
31 Id. Plaintiff also “strongly suggests that the service on Mac Nam as indicated by the affidavit filed
into the record on October 16, 2025, is proper.” Id. Nonetheless, Plaintiff advises that he “has taken
action in attempt to once again serve Mac Nam at the Philadelphia, Pennsylvania address supplied by
counsel for Nicholson. This was done on November 19, 2025 and plaintiff is currently awaiting return
of the ‘green card’ indicating service at that address.” Id. As of the date of this Order and Reasons,
Plaintiff has not filed any proof of service evincing that service has been properly effectuated against
Mac Nam at the Philadelphia address provided by defense counsel.
32 R. Doc. 28 at p. 2.
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II. 	LEGAL STANDARD
Rule 55(c) of the Federal Rules of Civil Procedure provides that a “court may
set aside an entry of default for good cause, and it may set aside a final default
judgment under Rule 60(b).”33 In determining whether good cause exists to set aside
an entry of default, “courts consider three non-exclusive factors: ‘whether the default
was willful, whether setting it aside would prejudice the adversary, and whether a
meritorious defense is presented.’”34 “Other factors may also be considered, including
whether ‘the defendant acted expeditiously to correct the default.’”35
Moreover, “federal courts should not be agnostic with respect to the entry of
default judgments, which are ‘generally disfavored in the law’ and thus ‘should not
be granted on the claim, without more, that the defendant had failed to meet a
procedural time requirement.’”36 Defaults are therefore “‘generally disfavored.’”37
And “‘[u]nless it appears that no injustice results from the default, relief should be
granted.’”38
III. 	ANALYSIS
Nicholson asks the Court set aside the entry of default entered against Mac
Nam.39 Plaintiff, however, contends that Nicholson lacks standing to request such
33 Fed. R. Civ. P. 55(c).
34 Koerner v. CMR Construction & Roofing, L.L.C., 910 F.3d 221, 225 (5th Cir. 2018)(quoting Lacy v.
Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000) (internal quotation mark omitted)).
35 Lacy, 227 F.3d at 292 (quoting In re Dierschke, 975 F.2d 181, 184 (5th Cir.1992)).
36 Lacy, 227 F.3d at 292 (quoting Mason & Hanger-Silas Mason Co. v. Metal Trades Council, 726 F.2d
166, 168 (5th Cir.1984)).
37 Koerner, 910 F.3d at 225 (quoting Mason & Hanger-Silas Mason Co., 726 F.2d at 168).
38 Koerner, 910 F.3d at 225 (quoting In re OCA, Inc., 551 F.3d 359, 370–71 (5th Cir. 2008)).
39 R. Doc. 27.
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relief on behalf of Mac Nam.40 Accordingly, the Court first addresses whether
Nicholson possesses standing to request the setting aside of the entry of default
against Mac Nam. The Court then addresses whether good cause exists under Fed.
R. Civ. 55(c) to set aside the entry of default. For the reasons set forth below, the
Court finds that Nicholson has standing to request such relief and has demonstrated
that good cause exists to set aside the entry of default against Mac Nam.
A. Nicholson has standing to request the setting aside of the entry of default
against Mac Nam.
Plaintiff alleges that “Nicholson has not set forth any ‘facts’ indicating that
they suffered injury as a result of the entry of default against Mac Nam.”41 The Court
disagrees.42
“To establish standing . . . 	a plaintiff must demonstrate (i) that she has
suffered or likely will suffer an injury in fact, (ii) that the injury likely was caused or
will be caused by the defendant, and (iii) that the injury likely would be redressed by
the requested judicial relief.”43 Put differently, the doctrine of standing requires that
a plaintiff “allege [] a personal stake in the outcome” of a case or controversy.44
40 R. Doc. 28 at p. 2.
41 Id.
42 Nicholson did not address standing in the instant Motion, nor did it file a reply brief in support of
the instant Motion. Regardless, the Fifth Circuit has unequivocally espoused its disdain for defaults,
and the Court therefore undergoes a standing analysis. See, e.g., Sindhi v. Raina, 905 F.3d 327, 331
(5th Cir. 2018)(“We have adopted a policy in favor of resolving cases on their merits and against the
use of default judgments.”)(citation modified); see also Sun Bank of Ocala v. Pelican Homestead & Sav.
Ass’n, 874 F.2d 274, 276 (5th Cir. 1989)(“Default judgments are a drastic remedy, not favored by the
Federal Rules and resorted to by courts only in extreme situations.”).
43 Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367, 380 (2024).
44 Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009)(citation modified).
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The Court finds that Nicholson has a “personal stake” in challenging the entry
of default against Mac Nam. In his state court petition, Plaintiff requests a “judgment
herein 	in 	favor of 	petitioner and against 	defendants 	jointly, severally and in
solido[,]”45 as Plaintiff claims that Mac Nam was acting in the course and scope of his
employment with Nicholson when the accident with Plaintiff occurred.46 Thus, as
conceded by Nicholson, “any potential judgment against Mr. Nam would be paid by
his former employer Nicholson Construction Company.”47 This is sufficient to satisfy
standing.
First, the entry of default against Mac Nam would be an injury-in-fact against
Nicholson, as Nicholson concedes that it would be financially liable for any judgment
against Mac Nam.48 Second, Nicholson’s injury is caused by the entry of default
against Mac Nam.49 And third, setting aside the entry of default against Mac Nam
will redress the injury against Nicholson.50
As a final point, although the Fifth Circuit has not squarely addressed the
precise issue of solidary obligor standing in the entry of default context, it has
provided guidance close to this issue. In Harrell v. DCS Equipment Leasing Corp.,51
numerous plaintiffs sued five corporate entity defendants who were jointly and
45 R. Doc. 9-1 at p. 3.
46 Id.
47 R. Doc. 27-1 at p. 4.
48 See Alliance for Hippocratic Medicine, 602 U.S. at 381 (“An injury in fact can be a physical injury, a
monetary injury, an injury to one's property, or an injury to one's constitutional rights, to take just a
few common examples.”)(emphasis added).
49 Id. at 380–81.
50 Id.
51 951 F.2d 1453, 1455 (5th Cir. 1992).
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severally liable regarding investments in computer equipment leasing programs.52
Plaintiffs alleged violations of RICO, state and federal securities law, common law
fraud, and breach of fiduciary duty.53 All five corporate entity defendants were
controlled by an individual defendant, Barry Trupin.54
Prior to trial, the district court entered default judgment against the five
corporate defendants.55 At trial, the jury found that Trupin did not violate any laws.56
The jury, however, found that Trupin was the alter ego of the corporate entity
defendants.57 Accordingly, to shield himself of financial liability, Trupin asked the
district court to set aside the default judgments against the five corporate entity
defendants.58 The 	district 	court 	set 	aside 	the 	default 	judgments, 	stating 	that
“under Fed. R .Civ. P. 55(c), the jury's verdict was good cause for setting aside the
default judgments.”59
On appeal, plaintiffs argued that Trupin lacked standing to request that the
district court set aside the default judgments.60 The Fifth Circuit disagreed and
explained:
We reject this contention. Fed. R. Civ. P. 60(b) expressly authorizes only
a party or a party’s legal representative to obtain relief by motion from
a final judgment. The Eleventh Circuit has stated that the term legal
representative was intended to reach only those individuals who were
52 Id. The Court acknowledges that there were more than five defendants in Harrell, but for purposes
of this Order and Reasons, the Court limits its discussion to these defendants. Id.
53 Id.
54 Id.
55 Id.
56 Id. at 1457.
57 Id.
58 Id. (“The only finding that might possibly be a finding against Barry Trupin was the jury's finding
that he was the alter ego of the corporations involved in the computer-lease operation.”).
59 Id. at 1458.
60 Id. at n.14.
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in a position tantamount to a party or whose legal rights were otherwise
so bound up with the parties that their rights were directly affected by
the final judgment. As the plaintiffs and the intervenors seek to hold
Barry Trupin liable on the default judgments, they cannot be heard to
say that his legal rights were not affected by those default judgments.61
The Court finds the Fifth Circuit’s reasoning to be analogous to the instant dispute.
Although Rule 55(c) is silent as to who may move to set aside an entry of default, it
is closely related to Rule 60(b).62 Thus, applying the Rule 60(b) rationale, the Court
finds that Nicholson also may petition the Court to set aside Mac Nam’s entry of
default because Nicholson’s legal rights are otherwise so bound up with Mac Nam
that its rights would be directly impacted by an entry of default. Nicholson was Mac
Nam’s employer,63 has potential financial liability for any judgment entered against
Mac Nam,64 and Mac Nam was in the course and scope of his employment when the
accident giving rise to the suit occurred.65 And if a default judgment were to be
entered against Mac Nam, Plaintiff would likely seek to satisfy the judgment, in its
entirety, 	from Nicholson 	as an 	obligor in 	solido.66 Therefore, 	the 	Court 	finds
Nicholson’s request to set aside the entry of defaults to be proper.
61 Id. (citation modified).
62 A.P. Moller – Maersk A/S v. Safewater Lines (I) Pvt., Limited, 784 Fed. Appx. 221, 225 (5th Cir.
2019)(quoting In re OCA, Inc., 551 F.3d at 369 (citation omitted))(“‘[i]n assessing a motion to vacate a
default 	judgment, 	we 	have 	interpreted Rule 60(b)(1) as 	incorporating 	the Rule 	55 ‘good cause’
standard applicable to entries of default[.]’”).
63 R. Doc. 9-1 at p. 3.
64 R. Doc. 27-1 at p. 4.
65 R. Doc. 9-1 at p. 3.
66 Under Louisiana law, “[s]olidary is an alternative term for joint and several in the context of a
liability or obligation.” In re Hari Aum, LLC, 714 F.3d 274, 277 (5th Cir. 2013)(quoting Black's Law
Dictionary 1521 (9th ed. 2009)(internal quotation marks removed)).
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Moreover, 	other 	courts 	have 	held 	that 	a 	jointly 	and/or 	severally 	liable
defendant has standing to challenge an entry of default against a co-defendant.67
Thus, 	adopting 	the 	same 	reasoning, 	the 	Court 	additionally 	determines 	that
Nicholson, as an obligor in solido, has standing to ask the Court to set aside the entry
of default against Mac Nam.
B. Good cause exists under Rule 55(c) to set aside the entry of default against
Mac Nam.
Having determined that Nicholson has standing to request the Court to set
aside the entry of default against Mac Nam, the Court next considers whether good
cause exists under Rule 55(c) to set aside the entry of default against Mac Nam.
Nicholson alleges that the entry of default against Mac Nam should be set aside for
Plaintiff’s failure to properly serve Mac Nam under La. R.S. § 13:3204.68 Plaintiff
disagrees and argues that Nicholson has failed to meet its burden of demonstrating
that the entry of default should be set aside.69
67 See Diamond Services Corp. v. Oceanografia SA de CV, Civil Action No. 10–0177., 2013 WL 312368,
at *3 (W.D. La. Jan. 24, 2013)(“Although this Court was unable to find cases within the Fifth Circuit
so holding, other courts have held a defendant against whom liability has been alleged jointly and/or
severally has standing to challenge an entry of default against a co-defendant.”); see also In re
Uranium Antitrust Litig., 617 F.2d 1248, 1256 n.32 (7th Cir. 1980) (permitting jointly and/or severally
liable defendants, which were subsidiaries of defaulting parties, to challenge a default judgment
because the non-defaulting defendants would be adversely affected by the default judgment
financially); Sack v. Seid, No. 01 C 6747, 2002 WL 31409573, at *2 (N.D. Ill. 2002) (holding that non-
defaulting defendant had standing to challenge entry of default against defaulting defendants);
Rodriguez v. Irwin, No. 7:10–CV–102–FL., 2011 WL 737316, at *3–4 (E.D. N.C. Feb. 23, 2011)(finding
that a jointly liable non-defaulting defendant had standing to challenge entry of default against non-
appearing defendant).
68 Nicholson maintains that “Mr. Nam was not and has not been served in this matter. He does not
reside at 199 Pierce Street, Apt. A834, Somerset, NJ 08873. Mr. Nam’s correct address is 3613
Biscayne Pl., Philadelphia, PA 19154. Therefore, Mr. Nam was not properly served because service
was attempted at an incorrect address.” R. Doc. 27 at p. 3.
69 R. Doc. 28.
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The Court finds that good cause exists for setting aside the entry of default
against Mac Nam because service on Mac Name was improper under Fed. R. Civ. P.
4. Specifically, Rule 4(e)(2)(B) provides that service may be effectuated by “leaving a
copy of each at the individual's dwelling or usual place of abode with someone of
suitable age and discretion who resides there[.]”70 Mac Nam was purportedly served
via domiciliary service at 199 Pierce Street, Apt. A834, Somerset, NJ 08873, but his
correct address is 3613 Biscayne Pl., Philadelphia, PA 19154.71 Service was received
and signed for by “K. Kristen.”72 Plaintiff has failed to offer any background
information regarding K. Kristen. This is insufficient.73
Accordingly, because Mac Nam “was not properly served under Rule 4, the
Court finds that the default was not willful, setting aside the default would not
prejudice the Plaintiff, and a meritorious defense has been presented.”74 Nicholson
has also acted expeditiously in attempting to correct the default,75 as it filed the
instant Motion one day after the clerk entered default against Mac Nam.76 The Fifth
Circuit has mandated that “‘a district court must set aside a default judgment as void
70 Fed. R. Civ. P. 4(e)(2)(B). Fed. R. Civ. P. 4(e)(1) also provides that service may be effectuated by
“following state law for serving a summons in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is made[.]” Accordingly, Nicholson alleges
that service was insufficient as to Mac Nam pursuant to La. R.S. § 13:3204. R. Doc. 27-1 at p. 1. The
Court finds the failure to personally serve Mac Nam does not comply with such statute.
71 R. Doc. 27-1 at p. 3.
72 R. Doc. 21.
73 In the context of setting aside a default judgment, the Fifth Circuit has “recognize[d] that once the
validity of service of process has been contested, the plaintiff bears the burden of establishing its
validity.” Carimi v. Royal Carribean Cruise Line, Inc. 959 F.2d 1344, 1346 (5th Cir. 1992)(citing Aetna
Business Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981)).
74 J&J Sports Productions, Inc. v. Bundee’s, Inc., CIVIL ACTION NO: 18-03480, 2019 WL 5102239, at
*2 (E.D. La. Oct. 11, 2019)(Guidry, J.).
75 Lacy, 227 F.3d at 292.
76 R. Doc. 26; R. Doc. 27.
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if it determines that it lacked personal jurisdiction over the defendant because of
defective service of process.’”77 The Court heeds such mandate.78
Where does that leave this case? This matter was removed to this Court on
December 13, 2024.79 Now, over a year later, there has been no Scheduling
Order issued, no pretrial motion deadlines set, no pretrial conference or trial set,
and likely no discovery. The matter remains stagnant, awaiting service and
appearance of all parties. Plaintiff advised in his opposition memorandum that he
has taken steps to serve Mr. Nam at the address provided by defense counsel. To
date, the record fails to include any follow up to those efforts. Plaintiff has brought
this case and bears the responsibility to prosecute it. Failure to serve defendant
Nam will result in that defendant being dismissed without prejudice.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the Motion
to Set Aside Clerk of Court’s Entry of Default80 is GRANTED. The Entry of Default
against Mac Nam81 is SET ASIDE.
77 Espinoza v. Humphries, 44 F.4th 275, 276 (5th Cir. 2022)(quoting Harper Macleod Solics. v. Keaty
& Keaty, 260 F.3d 389, 393 (5th Cir. 2001) (cleaned up)).
78 The Court also acknowledges that Nicholson may have another meritorious defense emanating from
the Supreme Court’s decision in Frow v. De La Vega. 82 U.S. 552 (1872). In Frow, the Supreme Court
stated that “if the suit should be decided against the complainant on the merits, the bill will be
dismissed as to all the defendants alike—the defaulter as well as the others. If it be decided in the
complainant's favor, he will then be entitled to a final decree against all. But a final decree on the
merits against the defaulting defendant alone, pending the continuance of the cause, would be
incongruous and illegal.” Id. at 554. Thus, [a]s a general rule then, when one of several defendants
who is alleged to be jointly liable defaults, judgment should not be entered against that defendant
until the matter has been adjudicated with regard to all defendants, or all defendants have defaulted.”
Mary Kay Kane, 10A F EDERAL PRACTICE AND PROCEDURE (WRIGHT & MILLER) § 2690 (4th ed. Sept.
2025 update).
79 R. Doc. 1.
80 R. Doc. 27.
81 R. Doc. 26.
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IT IS FURTHER ORDERED that ON OR BEFORE February 11, 2026
plaintiff shall file proof of service or show good cause, in writing, why the defendant
Mac Nam should not be dismissed for failure to prosecute pursuant to FRCP 4(m).
Failure to comply with this Order, or show good cause in writing as to why
this defendant should not be dismissed, shall result in dismissal without
prejudice of defendant, Mac Nam, without further notice.
New Orleans, Louisiana, January 28, 2026.
______________________________
WENDY B. VITTER
United States District Judge
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