Midland National Life Insurance Company v. David Foley, et al.

• Court: District Court, D. Nevada
• Decided: February 13, 2026
• Docket: 2:25-cv-00326
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 Midland National Life Insurance Company, Case No. 2:25-cv-00326-CDS-DJA

4 Plaintiff Order Granting Defendant McVicar’s Motion for Default Judgment 5 v.

6 David Foley, et al., [ECF No. 13]

7 Defendants 8 9 This is an interpleader action filed by Midland National Life Insurance Company against 10 defendants David Foley, as the Executor of the Estate of Ricky Foley, and Martin McVicar. See 11 Compl., ECF No. 1. Defendant Martin McVicar filed a motion for default judgment against co- 12 defendant David Foley. Mot. for default, ECF No. 13. To date, no opposition has been filed, and 13 the time to do so has long passed. Because the motion complies with Federal Rule of Civil 14 Procedure 55 and is unopposed, I grant the motion. 15 I. Discussion 16 Federal Rule of Civil Procedure 55 governs the entry of default by the clerk and the 17 subsequent entry of default judgment by either the clerk or the district court. In relevant part, 18 Rule 55 provides: 19 (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown 20 by affidavit or otherwise, the clerk must enter the party’s default. 21 (b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be 22 made certain by computation, the clerk—on the plaintiff’s request, with an 23 affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and 24 who is neither a minor nor an incompetent person. 25 (2) By the Court. In all other cases, the party must apply to the court for a default judgment. 26 1 Fed. R. Civ. P. 55(a)–(b). As the Ninth Circuit has clarified, Rule 55 requires a “two-step 2 process” consisting of: (1) seeking a clerk’s entry of default, and (2) filing a motion for the entry 3 of default judgment. See Symantec Corp. v. Glob. Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) 4 (noting that Rules 55(a) and 55(b) provide a two-step process for obtaining a default 5 judgment); Cramer v. Target Corp., 2010 WL 2898996, at *1 (E.D. Cal. July 22, 2010) (“Obtaining a 6 default judgment in federal court is a two-step process that includes: (1) entry of default and (2) 7 default judgment.”). While its plaintiffs who usually move for entry of default judgment, courts 8 recognize the right of a defendant in an interpleader action to obtain a default judgment. See 9 Thrivent Fin. for Lutherans v. Bloomquist, 2018 WL 3312979, at *2 (D. Nev. July 3, 2018) (citing Sun Life 10 Assur. Co. of Canada, (U.S.) v. Conroy, 431 F. Supp. 2d 220 (D.R.I. 2006)). 11 Here, McVicar has satisfied both steps under Rule 55. First, McVicar moved for the entry 12 of default against defendant David Foley on April 27, 2025. Mot. clerk default, ECF No. 11. The 13 Clerk of Court entered default on May 12, 2025. Default, ECF No. 12. Second, McVicar moved for 14 default judgment against Foley on May 13, 2025. Mot., ECF No. 13. 15 Upon entry of default, I take as true the factual allegations in the non-defaulting party’s 16 complaint, except those related to the amount of damages. Fed. R. Civ. P. 8(b)(6); TeleVideo Sys., 17 Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). The allegations in the complaint are as 18 follows. Midland National Life Insurance filed an interpleader complaint1 against David Foley, 19 the Executor of the Estate of Ricky Foley, a citizen and domiciliary of Nevada, and Martin 20 McVicar, a citizen and domiciliary in Michigan, related to a 2022 annuity contract that included 21 a death benefit. See ECF No. 1 at 2, ¶¶ 5–6. Ricky Foley was the listed annuitant on the contract, 22 with McVicar listed as the primary beneficiary. Id. at ¶ 14. Ricky Foley passed away on December 23 1, 2023. Id. In a January 2024 letter, David Foley submitted a letter to Midland accusing McVicar 24 of financially exploiting Ricky Foley. See id. at ¶ 16–17. That same letter advised Midland that he 25 was submitting a claim for the payment under the death penalty. Id. at ¶ 18. Because there were 26 1 Interpleader is intended to “protect stakeholders from multiple liability as well as the expense of multiple litigation.” Aetna Life Ins. Co. v. Bayona, 223 F.3d 1030, 1034 (9th Cir. 2000). 1 competing, adverse claims to Ricky Foley’s death benefits, and because Midland is unable to 2 fully determine which party has the legal rights to the proceeds, it brought this interpleader 3 action to remove itself from the position of being “an innocent stakeholder faced with the 4 possibility of multiple liability on a single obligation as well as incidental costs.” Id. at 4, ¶¶ 21– 5 22. 6 As set forth in the complaint, Midland, as a disinterested stakeholder with conceded 7 liability, sought permission to deposit the disputed death benefit funds with the court and to be 8 discharged from liability.2 Id. at ¶ 25. On October 9, 2025, Midland deposited the disputed funds 9 with the court. ECF No. 28. And on October 28, 2025, pursuant to a joint stipulation, Midland 10 was discharged from this action. See ECF No. 29. 11 Based on those allegations, McVicar seeks default against his co-defendant, arguing that 12 the factors enumerated in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986), weigh heavily in favor of 13 granting default. See ECF No. 13 at 3. 14 A. Factor one: prejudice to McVicar 15 McVicar argues that without default, he is prejudiced from receiving payment under the 16 annuity where he is listed as the primary beneficiary. ECF No. 13 at 3–4. I agree. While David 17 Foley, as Executor of Ricky Foley’s estate, contested paying out the annuity to McVicar with 18 Midland, he has failed to defend against this action to resolve that dispute. Without default, 19 McVicar will be prejudiced if default judgment is not entered in his favor because he has no 20 other way to litigate his claim. See Western Reserve Life Assur. Co. of Ohio v. Canul, 2012 WL 844589, at 21 *2 (E.D. Cal. Mar. 12, 2012) (finding that the plaintiff “would be prejudiced if a default judgment 22 is not granted” because the plaintiff “has no other alternative by which to evaluate [d]efendant’s 23 claim to the life insurance policy”). Thus, this factor weighs in McVicar’s favor. 24 25 26 2 Midland also sought fees and costs, see ECF No. 1 at 5, but have since been dismissed so this request is moot, ECF No. 29. 1 B. Factors two and three: the merits of the claims and sufficiency of the complaint. 2 The second and third Eitel factors look at (1) the merits of a plaintiff’s substantive claims 3 and (2) the sufficiency of the complaint. Eitel, 782 F.2d at 1471. These two factors require that a 4 plaintiff “state a claim on which [it] may recover.” PepsiCo, Inc. v. California Sec. Cans, 238 F. Supp. 5 2d 1172, 1175 (C.D. Cal. 2002) (citation modified). Although the complaint was filed by Midland 6 and seeks relief on behalf of Midland, I nonetheless evaluate if it sufficiently states a claim for 7 relief. I find that it does. It establishes a dispute over the annuity funds. Without resolving that 8 dispute, the funds cannot be disbursed. See Am. Gen. Life Ins. Co. v. Durbin, 2016 WL 3583826, at *3 9 (C.D. Cal. June 10, 2016). So both factors two and three also weigh in favor of granting default 10 judgment. 11 C. Factor four: the amount of money at stake 12 Under the fourth factor, the court considers “the amount of money at stake in relation to 13 the seriousness of Defendant’s conduct.” PepsiCo, 238 F. Supp. 2d at 1176. However, in an 14 interpleader action, this factor is usually neutral because the plaintiff is not asserting an interest 15 in the interpleaded funds but is rather seeking relief to divest itself of any such interest. See 16 Transamerica Life Ins. Co. v. Estate of Ward, 2011 WL 5241257, at *4 (E.D. Cal. Oct. 31, 2011) (finding 17 the nearly $400,000 at stake “a significant sum of money” but nonetheless finding the fourth 18 Eitel factor neutral where “[the plaintiff] is not asserting an interest in those funds and . . . seeks 19 to resolve the conflicting claims to the interplead funds and ensure that the funds are released to 20 the proper party so that no outstanding claims thereto remain”). This case is no different. The 21 plaintiff has not asserted an interest in the funds, and indeed, the funds were deposited with the 22 court. So this factor is neutral. 23 D. Factor five: the possibility of a dispute concerning material facts 24 The fifth Eitel factor weighs the possibility of a dispute regarding facts material to the 25 case. PepsiCo., 238 F. Supp. 2d at 1177. As noted above, “[u]pon entry of default, all well-pleaded 26 facts in the complaint are taken as true, except those relating to damages.” Id. (citation omitted). 1 Here, Midland sufficiently pleaded a dispute of funds between the defendants, so there is no 2 factual dispute that would preclude entry of judgment. Thus, the fifth factor weighs in favor of 3 granting McVicar’s motion. 4 E. Factor six: the possibility of excusable neglect 5 “The sixth Eitel factor considers whether the defendant’s default may have been the 6 product of excusable neglect.” Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 920 7 (C.D. Cal. 2010). This factor favors default judgment when the defendant has been properly 8 served or the plaintiff demonstrates that the defendant is aware of the lawsuit. See id. Defendant 9 David Foley was served. See Proof of serv., ECF No. 5. Yet, as already noted, he has failed to 10 defend against this action. Thus, there is no evidence before me suggesting that David Foley’s 11 failure to respond is due to excusable neglect. Accordingly, this factor also weighs in favor of 12 granting McVicar’s motion. See United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 13 1993) (per curiam) (holding that it was “perfectly appropriate” for the district court to enter 14 default judgment against a defendant that failed to appear in the action). 15 F. Factor seven: the policy of resolving cases on their merits 16 The seventh Eitel factor considers the policy favoring a decision on the merits. “Cases 17 should be decided on their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. 18 Although “[c]ases should be decided upon their merits whenever reasonably possible,” id., “Rule 19 55(a) allows a court to decide a case before the merits are heard if [a] defendant fails to appear 20 and defend.” Landstar Ranger, 725 F. Supp. 2d at 922. Thus, while this final Eitel factor always 21 weighs against an entry of default judgment, it does not preclude me from entering one. While a 22 decision on the merits is desirable, where a defendant fails to appear and respond, default 23 judgment is appropriate. See Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. 24 Cal. 2010). So, this factor also weighs in favor of entering default judgment. 25 26 1 Almost all Fitel factors weigh in favor of the entry of default judgment as to defendant 2}| David Foley, as Executor of the Estate of Ricky Foley. Accordingly, McVicar’s motion for default judgment is granted. 4 As a result of David Foley’s default, McVicar is entitled to the disputed funds. See, e.g, W. 5}| Conf. of Teamsters Pension Plan v. Jennings, 2011 WL 2609858, at *1 (N.D. Cal. June 6, 2011), (“Due to 6]| entry of default judgment against [the defaulting defendant, the answering defendant] is entitled 7|| to the interpleaded funds.”); see also Nationwide Mutual Life Ins. Co. v. Eason, 736 F.2d 130, 133 n. 4 8|| (4th Cir. 1984) (“Clearly, if all but one named interpleader defendant defaulted, the remaining defendant would be entitled to the fund.”). 10} IL. Conclusion IT IS THEREFORE ORDERED that McVicar’s motion for default judgment [ECF No. 12||13] is GRANTED. 13 MceVicar’s motion for entry of final judgment and for an guder of interpleader disbursement of the funds is due by March 10, 2026. /, / 15 Dated: February 13, 2026 LZ Cristina D_Silva Iv Unite ‘Spates District Judge 18 [ 19 20 21 22 23 24 25 26