United States District Court, D. Nebraska
ORDER TO SHOW CAUSE
C. Buescher United States District Judge.
matter is before the Court on Plaintiff's Renewed Motion
for Default Judgment. Filing 33. It is “appropriate for
a district court to enter a default judgment when a party
fails to appropriately respond in a timely manner.”
Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir.
2010) (citing Inman v. Am. Home Furniture Placement,
Inc., 120 F.3d 117, 119 (8th Cir. 1997)).
reviewing the record of this case, the Court believes the
record is not clear that Plaintiff has properly served
defendant Derrone Greene with a summons and copy of the
Complaint. The Court is issuing this Order to Show Cause to
invite briefing and evidence regarding service of Greene. The
Court also invites revised calculations on Plaintiff's
damages evidence as to its motion for default judgment.
filed suit against Derrone Greene in his individual
capacity. Filing 1. On March 29, 2019, the original
summons issued for Greene was returned unexecuted after five
unsuccessful attempts in February. Filing 8. Plaintiff
requested an alias summons for Greene and it was returned
executed on May 2, 2019.
Civ. P. 4(e) states that “an individual . . . may be
served . . . by . . . (1) 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
. . . .” A review of the summons shows the process
server failed to deliver the summons to Greene personally or
to his usual place of abode as required by Fed.R.Civ.P. 4(e)
or residence allowed under Neb. Rev. Stat. § 25-508.01.
It is also clear that Plaintiff did not serve Greene by
certified mail or designated delivery service. See
Neb. Rev. Stat. § 25-508.01. Instead, Plaintiff's
process server delivered service to defendant Greene by
providing “substitute service” upon Greene by
delivery to Tracey Parker in her capacity as the
“company bookkeeper.” Filing 16 at 2.
Rev. Stat. § 25-517.02 allows for substitute service
“[u]pon motion and showing by affidavit that service
cannot be made with reasonable diligence by another method
provided by statute . . .” Plaintiff has not made such
a motion or submitted evidence regarding service of Greene.
is ordered to show cause why the claim against Greene should
not be dismissed for failure to properly serve Greene
pursuant to applicable law.
addition, Plaintiff requests an award of attorney fees in its
motion for default judgment. Filing 33. The Nebraska Supreme
Court has held that “in the absence of a uniform course
of procedure or authorization by statute, contractual
agreements for attorney fees are against public policy and
will not be judicially enforced.” Stewart v.
Bennett, 273 Neb. 17, 22, 727 N.W.2d 424, 429 (2007).
Courts have not recognized an exception to the prohibition on
awarding attorney fees for cases where an indemnified party
sues an indemnitor to enforce the indemnity agreement.
See Havelock Bank of Lincoln v. W. Sur. Co., 217
Neb. 560, 566, 352 N.W.2d 855, 859 (1984) (finding the trial
court did not err “in not allowing [the indemnified
party] attorney fees on the judgment obtained against the
indemnitors”). However, Nebraska courts have allowed
the indemnified party to recover attorney fees from the
indemnitor for the cost of defending the underlying
litigation from which the party should have been indemnified.
See Oddo v. Speedway Scaffold Co., 233 Neb.
1, 2, 443 N.W.2d 596, 598 (1989) (allowing the recovery of
both the settlement and the attorney fees expended in
defending underlying claim).
has submitted evidence seeking a judgment that includes
attorney fees incurred both for this action and the
underlying claim from which it claims it should have been
indemnified. Plaintiff s calculations also include a request
for interest on such attorney fees. The Court demands that
Plaintiff revise its damages calculations in accordance with
1. Plaintiff shall show cause on or before November 8, 2019,
as to why its Renewed Motion for Default should not be denied
as to Derrone Greene for ineffective service upon him.
2. Plaintiff shall provide the Court with revised damage
calculations that are in ...