Midvale Indemnity Company v. Bowie et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-01263-SKC-KAS
MIDVALE INDEMNITY COMPANY, a Wisconsin corporation,
Plaintiff/Counter Defendant,
v.
JENNIFER PREVITALI, also known as Jennifer Bowie, and
SHAWN BOWIE,
Defendants/Counter Claimants.
ADRIAN DOMINGUEZ, and
SEAN CARNAHAN, individually and as parent and representative of minors S.C., S.C.,
and F.C.,
Defendants.
____________________________________________________________________
ORDER ON DEFENDANT SHAWN BOWIE’S MOTION TO SET ASIDE ENTRY OF
DEFAULT
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the court on Defendant Shawn Bowie’s Motion to Set Aside
Default Judgment Pursuant to Rule 55(c) of the Federal Rules of Civil Procedure
[#23]1 (the “Motion”). Plaintiff Midvale Indemnity Company filed a Response [#27] in
opposition to the Motion [#23], and Defendant Bowie filed a Reply [#28].2 The Motion
[#23] has been referred to the undersigned. See Memorandum [#47]. The Court has
1 “[#23]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Order.
2 The Court notes that Defendant Bowie was represented by Attorney Robert Pitler at the time the
Motion [#23] was filed. However, Attorney Pitler has since withdrawn as counsel of record, and
Defendant Bowie currently proceeds in this litigation pro se. See Order Granting Withdrawal [#49].
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reviewed the briefs, the entire case file, and the applicable law. For the reasons set forth
below, the Court GRANTS the Motion [#23].3
I. 	Background
This matter arises from a lawsuit filed on January 22, 2025, in Denver District
Court, Case No. 2025CV30253 (the “Underlying Action”). Compl. [#1] at 2. In the
Underlying Action, Defendant Sean Carnahan, individually and as representative of his
three minor children, sued Defendant Bowie, among others, for fraudulent transfer, civil
conspiracy, child abuse, and tortious interference with business relations. Id. at 12-14.
Defendant Bowie was allegedly an assistant pastor and deacon at New Heights Baptist
Church (“New Heights”) with which all Defendants—at one point or another—were
affiliated. Id. at 10-11. Plaintiff allegedly issued an insurance policy to New Heights,
effective from April 1, 2023, through April 1, 2024, that provided business owners
coverage to New Heights (the “Policy”). Id. at 5.
Plaintiff filed the instant lawsuit on April 21, 2025. Id. at 1. Through the instant
lawsuit, Plaintiff asserts that, pursuant to the allegations in the Underlying Action, Plaintiff
has no duty to indemnify Defendants in the Underlying Action. Id. at 15-16. Plaintiff alleges
that Defendant Bowie, among others, is not insured under the Policy, and that the Policy
only covers employees of New Heights to the extent they commit acts within the course
and scope of their employment. Id. at 16. Ultimately, Plaintiff asserts that the allegations
3 “A motion to set aside a clerk’s entry of default is not a dispositive motion.” Goodwin v. Hatch,
No. 16-cv-00751-CMA-KLM, 2018 WL 3454972, at *4 (D. Colo. July 18, 2018) (citing Finely v.
CSA-Credit Sols. of Am., Inc., No. CIV-08-250, 2008 WL 5280551, at *1 (E.D. Okla. Dec. 18,
2008)). 	Accordingly, 	such 	motions—as 	distinguished 	from 	motions 	to 	set 	aside 	default
judgment—are subject to disposition by a magistrate judge under 28 U.S.C. § 636(b)(1)(A).
Allstate Fire & Cas. Ins. Co. v. Novosad, No. 16-12481, 2016 WL 5430191, at *1 n.2 (E.D. Mich.
Sept. 29, 2016) (collecting cases).
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in the Underlying Action do not give rise to coverage under the Policy. Id. at 17. As such,
Plaintiff requests a declaration from the Court that it owes no duty to defend in the
Underlying Action. Id. at 18. Plaintiff also requests recoupment of costs it has incurred in
defending the Underlying Action. Id. at 19.
The Clerk of Court issued a summons for Defendant Bowie on April 22, 2025. See
Summons [#4-6]. Plaintiff filed a Motion for Entry of Default on July 1, 2025. See Motion
for Entry of Default [#13]. In that Motion [#13], Plaintiff alleged that process was served
on the secretary of New Heights on May 7, 2025. Id. at 2. Plaintiff stated that New Heights
is Defendant Bowie’s regular place of business, and therefore, service of process was
proper pursuant to Colo. R. Civ. P. 4(e)(1). Id. Given Defendant Bowie’s failure to plead
or otherwise defend within the 21 days following service, Plaintiff argued that a Clerk’s
entry of default was proper. See id. at 3-4. The Clerk of Court entered default against
Defendant Bowie on July 7, 2025. See Clerk’s Entry of Default [#14].
Through the instant Motion [#23], Defendant Bowie asks the Court to set aside the
entry of default pursuant to Rule 55(c). Motion [#23] at 1. Defendant Bowie asserts that
Plaintiff did not properly serve him, and therefore, the Court lacks personal jurisdiction
over him. Id. at 2. In support, Defendant Bowie attaches an affidavit in which he attests
that he was a deacon at New Heights from January 11, 2023, through February 26, 2025.
First Bowie Aff. [#23-2] at ¶ 3. He states that a deacon is “considered a position of non-
paid ministry.” Id. He therefore contends that service upon New Heights’ secretary was
improper because (1) he was not considered an “employee” of New Heights and (2) he
was no longer affiliated with New Heights at the time service was effectuated. See id.
[#23] ¶¶ 2, 3, 6; see also Motion [#23] at 2. He further attests that he had no actual
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knowledge of this proceeding until his wife, Defendant Jennifer Previtali Bowie, was
served with process. First Bowie Aff. [#23-2] ¶ 2.
Through its Response [#27], Plaintiff contends that Defendant Bowie fails to meet
his burden of proof to set aside the Clerk’s entry of default. Response [#27] at 2-3.
Specifically, Plaintiff states that New Heights was Defendant Bowie’s place of employment
on May 7, 2025—the date service occurred. Id. at 3. Plaintiff also states that Defendant
Bowie identified himself as a New Heights assistant pastor through filings in the
Underlying Action, such as a Case Management Order in which Bowie stated he “denies
that he has caused any harm to the minor [p]laintiffs, specifically as a result of his work
as 	assistant 	pastor.” 	Id. 	(emphasis 	added) 	(quoting 	Underlying 	Action’s 	Case
Management Order). Plaintiff contends that Defendant Bowie’s representation in the
Case Management Order—which was made after service in the instant action was
effectuated—directly contradicts his assertion that he is a deacon and that he was
unaffiliated with New Heights at the time service occurred. Id.
In his Reply [#28], Defendant Bowie maintains that it is “uncontradicted” that he
was not employed by New Heights on May 7, 2025. See Reply [#28] at 1. He further
argues that the Underlying Action’s Case Management Order upon which Plaintiff relies
is “not reliable” and that Plaintiff fails to provide any “supporting documentation”. Id. at 2.
In sum, Defendant Bowie maintains that he was not employed by New Heights at the time
of service, and there is no evidence that the individual who accepted service “was
[Defendant Bowie’s] supervisor, secretary, administrative assistant, bookkeeper, human
resources representative, or managing agent.” Id. at 3; see also Second Bowie Aff. [#28-
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2] at 1 (attesting that he has “never held [himself] out as assistant pastor and no one in
[New Heights] would have ever thought of [him] as assistant pastor.”).
II. 	Applicable Law
In relevant part, Fed. R. Civ. P. 55(c) states that “[t]he court may set aside an entry
of default for good cause.” However, “the good cause required by Fed. R. Civ. P. 55(c) for
setting aside entry of default poses a lesser standard for the defaulting party than the
excusable neglect which must be shown for relief from judgment under Fed. R. Civ. P.
60(b).” Dennis Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 775 n.6
(10th Cir. 1997) (citations omitted). The primary factors in determining whether a
defendant has met the good cause standard are: “(1) whether the default was the result
of culpable conduct of the defendant, (2) whether the plaintiff would be prejudiced if the
default should be set aside, and (3) whether the defendant presented a meritorious
defense.” Hunt v. Ford Motor Co., 65 F.3d 178 (Table), 1995 WL 523646, at *3 (10th Cir.
Aug. 29, 1995) (citing In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992)).
“The standard for setting aside an entry of default under Rule 55(c) is fairly liberal
because ‘[t]he preferred disposition of any case is upon its merits and not by default
judgment.’” Crutcher v. Coleman, 205 F.R.D. 581, 584 (D. Kan. 2001) (quoting Gomes v.
Williams, 420 F.2d 1364, 1366 (10th Cir. 1970)). However, the district court has broad
discretion in determining whether to set aside an entry of default. Pinson v. Equifax Credit
Info. Servs., Inc., 316 F. App’x 744, 750 (10th Cir. 2009) (reviewing decision to set aside
entry of default for an abuse of discretion).
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III. Analysis
A. 	Culpability of Defendant Bowie
“If the default was the result of the defendant’s culpable conduct, the district court
may refuse to set aside the default on that basis alone.” Hunt, 1995 WL 523646, at *3
(citation omitted). Here, Defendant Bowie attests that he was never properly served and
“had no actual knowledge of [this] proceeding until [Defendant Previtali Bowie] was
recently served.” First Bowie Aff. [#23-2] at 1. Defendant Previtali Bowie was served on
July 8, 2025. See Executed Summons [#16]. Nearly one month thereafter, Defendant
Bowie entered an appearance and filed the instant Motion [#23].
Ultimately, there is no indication that Defendant Bowie willfully defaulted in this
case. Defendant Bowie has since entered an appearance, filed a proposed Answer [#41-
1] pending disposition of this Motion [#23],4 and appeared at the October 2, 2025
Scheduling Conference. See Notice of Entry of Appearance [#22]; Proposed Answer
[#41-1]; Courtroom Minutes [#37]. Though there may be issues regarding whether he was
served in accordance with Fed. R. Civ. P. 4, the Court need not decide that issue. See
Viegas v. Owens, No. 23-cv-02939-PAB-MDB, 2024 WL 6822392, at *2 (D. Colo. Jan. 24,
2024) (granting motion to set aside entry of default and declining to address the issue of
improper service), recommendation adopted, 2024 WL 6822391 (D. Colo. Apr. 3, 2024).
Accordingly, the Court finds that this factor weighs in favor of setting aside the Clerk’s
entry of default. See id.
4 On October 14, 2025, Defendant Bowie filed a Proposed Answer and Counterclaim [#41, #41-
1]. Defendant Bowie asks that his Proposed Answer [#41-1] be accepted for filing pending
resolution of the instant Motion [#41]. See [#41] at 1.
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B. 	Prejudice to Plaintiff
Defendant Bowie contends that no party will be prejudiced if his Motion [#23] is
granted because the case is in its early stages. See Motion [#23] at 2. “Prejudice is
established when a plaintiff’s ability to pursue the claim has been hindered by, for
example, loss of available evidence, increased potential for fraud or collusion, or
substantial reliance upon the judgment.” SecurityNational Mortg. Co. v. Head, No. 13-cv-
03020-PAB-BNB, 2014 WL 4627483, at *3 (D. Colo. Sept. 15, 2014) (cleaned up). “There
is no prejudice to the plaintiff where ‘the setting aside of the default has done no harm to
the plaintiff except to require [him] to prove [his] case.’” Crapnell v. Dillon Cos., Inc., No.
14-cv-01713-KLM, 2015 WL 328524, at *7 (D. Colo. Jan. 23, 2015) (quoting Head, 2014
WL 4627483, at *3). Additionally, “prejudice to the plaintiff is also mitigated where the
defendant acted quickly to remedy the mistake.” Id. at *6 (citing Apex Mobility Transp.,
LLC v. First Transit, Inc., No. 14-cv-02645-REB-MEH, 2015 WL 59553, at *3 (D. Colo.
Jan. 2, 2015)).
The Court finds that Plaintiff has not shown it would be prejudiced if the entry of
default were set aside. See generally Response [#27] (failing to discuss prejudice); see
also Estate of Ortiz v. Lithia Motors, Inc., No. 08-cv-00907-PAB-KLM, 2009 WL 1258969,
at *2 (D. Colo. May 5, 2009) (setting aside entry of default where plaintiff did not identify
any undue prejudice it would suffer if entry of default were vacated). Defendant Bowie
acted promptly upon entry of default and the case was (and still is) in an early procedural
posture. Moreover, Plaintiff would have to proceed with its case against the other
Defendants regardless of whether it had obtained default against Defendant Bowie. The
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setting aside of default does no harm to Plaintiff beyond requiring it to prove its case,
which is no harm at all. See Crapnell, 2015 WL 328524, at *7.
C. 	Meritorious Defenses
“To determine whether a defense is meritorious, a court ‘examines the allegations
contained in the moving papers to determine whether the movant’s version of the factual
circumstances surrounding the dispute, if true, would constitute a defense to the action.’”
Head, 2014 WL 4627483, at *3 (quoting In re Stone, 588 F.2d 1316, 1319 (10th Cir.
1978)). “The movant must provide ‘a sufficient elaboration of facts to permit the trial court
to judge whether the defense, if movant’s version were believed, would be meritorious.’”
Id.
The Motion [#23] and Reply [#28] are silent as to this factor. In his proposed
Answer [#41], Defendant Bowie sets forth various affirmative defenses. See Proposed
Answer [#41-1] at 5. For example, he alleges that he is an insured person pursuant to the
Policy terms because he provided and/or engaged in “counseling activities” which entitles
him to coverage. Id. He further asserts the defenses of estoppel and unclean hands. Id.
at 5-6. These defenses, as written, are insufficient for the Court to determine whether they
are meritorious. See In re Stone, 588 F.2d at 1319 (noting that a movant must
“sufficient[ly] elaborat[e]” facts “to permit the trial court to judge whether the defense, if
movant’s version were believed, would be meritorious.”). Therefore, the Court finds that
Defendant Bowie has failed to establish a meritorious defense. Nonetheless, “the Court
need not consider every factor in determining whether to set aside an entry of default.”
Maes v. Bland, No. 18-cv-00052-PAB-NYW, 2019 WL 4187528, at *3 (D. Colo. Sept. 3,
2019) (setting aside entry of default where defendant failed to demonstrate a meritorious
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defense, but satisfied culpability and prejudice factors). Having found that Defendant
Bowie’s culpability and the prejudice to Plaintiff weigh in favor of setting aside the Clerk’s
entry of default, the Court concludes that the Clerk’s entry of default should be set aside.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#23] is GRANTED.
IT IS FURTHER ORDERED that the Clerk’s Entry of Default against Defendant
Shawn Bowie [#14] is VACATED.
IT IS FURTHER ORDERED that Defendant Shawn Bowie’s Proposed Answer
[#41-1] is accepted as filed.
IT IS FURTHER ORDERED that the Clerk of Court shall separately docket and
appropriately identify Defendant Bowie’s Answer [#41-1].
IT IS FURTHER ORDERED that Plaintiff shall respond to the Counterclaim, see
[#41-1] at 6-7, within 21 days of this Order.
Dated: December 18, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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