UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
METROPOLITAN LIFE INSURANCE )
COMPANY, )
)
Plaintiff, )
)
v. ) No. 1:17-cv-2552 (KBJ)
)
GAIL FELICIA THROWER-CLARKE, )
)
Defendant. )
)
MEMORANDUM OPINION ADOPTING
REPORT & RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff Metropolitan Life Insurance Company (“MetLife” or “Plaintiff”) has
filed the instant action against Gail Felicia Thrower-Clarke (“Thrower-Clarke” or
“Defendant”) to recover $26,028.85 that MetLife inadvertently paid to Thrower-Clarke
pursuant to a claim for life insurance proceeds. (See Compl., ECF No. 1 ¶¶ 3, 20.)
MetLife filed the instant lawsuit on November 28, 2017, claiming violations of the
Federal Employees’ Group Life Insurance Act (“FEGLIA”), 5 U.S.C. §§ 8701–8716,
unjust enrichment, and conversion. (See id. ¶¶ 36, 44, 50.) MetLife served Thrower-
Clarke on February 24, 2018 (see Aff. Of Service, ECF No. 7), and after Thrower-
Clarke failed to file a timely answer, MetLife requested an entry of default (see Aff. For
Default, ECF No. 8), which the Clerk entered on April 18, 2018 ( see Entry of Default,
ECF No. 10).
Before this Court at present is the subsequent motion for entry of default
judgment that MetLife filed on May 3, 2018. (See Pl.’s Mot. for Default J. (“Pl.’s
Mot.”), ECF No. 14.) This Court referred Met Life’s motion to a magistrate judge for
full case management (see Minute Order of May 10, 2018; Minute Entry of May 10,
2018), and the matter was assigned to Magistrate Judge Harvey.
On July 24, 2018, Magistrate Judge Harvey filed a comprehensive Report and
Recommendation (“R&R”) with respect to MetLife’s motion for default judgment. (See
R. & R., ECF No. 18.) 1 The R&R reflects Magistrate Judge Harvey’s opinion that
MetLife’s motion for default judgment against Thrower-Clarke should be granted, and
that default judgment should be entered against Defendant in the amount of $26,628.85
(an amount that reflects the insurance proceeds Thrower-Clarke received as well as an
additional $600 to cover court fees and the cost of serving the complaint). (See R. & R.
at 7; see id. at 6.) 2 Specifically, Magistrate Judge Harvey concludes that the instant
circumstances satisfy the default judgment standard, because Thrower -Clarke had failed
to respond to MetLife’s complaint, to the Clerk’s entry of default, or to MetLife’s
motion for a default judgment. (See id. at 5.) With respect to the measure of monetary
damages, the R&R recommends that the Court credit the allegations in MetLife’s
complaint, which “are well-pled and undisputed[,]” and “which establish that [Thrower-
Clarke’s] retention of the insurance proceeds [in the amount of $26,028.85] render her
liable for unjust enrichment and conversion[.]” (Id. at 6.)
In addition to articulating these conclusions, the R&R also informs the parties
that either party may file written objections, and advises that the “failure to file timely
objections to the findings and recommendations set forth in this report may waive [the
party’s] right of appeal from an order of the District Court that adopts such findings and
1
The Report and Recommendation is attached hereto as Appendix A.
2
Page numbers herein refer to those that the Court’s electronic case filing system automatically
assigns.
2
recommendations.” (Id. at 7 (citing Thomas v. Arn, 474 U.S. 140, 154 (1985)).) Under
this Court’s local rules, any party who objects to a report and recommendation of a
Magistrate Judge must file a written objection with the Clerk of the Court within 14
days of the party’s receipt of the report, and any such written objection must specify the
portions of the findings and recommendations to which each objection is made and the
basis for each such objection. See LCvR 73.2(b). As of the date of the instant
Memorandum Opinion—nearly three months after the R & R at issue here was issued—
Thrower-Clarke has not filed any such objection.
This Court has reviewed Magistrate Judge Harvey’s R&R and agrees with its
careful and thorough analysis and conclusions. In particular, the Court agrees that
MetLife’s allegations and supporting evidence establish that Thrower-Clarke cashed a
check for insurance proceeds that MetLife had inadvertently disbursed to her in the
amount of $26,028.85, and that she improperly retained those funds; this conduct is
sufficient to render Thrower-Clarke liable for unjust enrichment and conversion. (See
id. at 6.) As a result, a default judgment against Thrower-Clarke in the amount of the
converted sum—$26,028.85—plus court costs ($600) is appropriate. (See id. at 7.) The
Court further concurs with Magistrate Judge Harvey’s conclusion that, although
MetLife’s complaint requests attorney’s fees and interest, MetLife appears to have
relinquished any claim with respect to such damages, since it failed to make any such
request in its motion for default judgment, and has not “demonstrated its entitlement to
either fees or interest[.]” (Id. at 6.)
In sum, in the absence of any timely-filed objection, and after conducting its own
review of this matter, this Court accepts Magistrate Judge Harvey’s analysis of the
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record evidence in full, and ADOPTS the Report and Recommendation in its entirety.
Accordingly, Plaintiff’s [14] Motion for Default Judgment will be GRANTED, and
default judgment will be entered against Defendant in the amount of $26,628.85.
A separate Order accompanies this Memorandum Opinion .
DATE: October 22, 2018 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
METROPOLITAN LIFE )
INSURANCE COMPANY )
)
Plaintiff, )
)
v. ) No. 1:17-cv-02552 (KBJ/GMH)
)
GAIL FELICIA )
THROWER-CLARKE )
)
Defendant. )
____________________________________)
REPORT AND RECOMMENDATION
This matter was referred to the undersigned for a Report and Recommendation on
Metropolitan Life Insurance Company’s (“MetLife’s” or “Plaintiff’s”) motion for default
judgment. [Dkt. 14]. In this case, Plaintiff seeks to recover from Gail Felicia Thrower-Clarke
(“Defendant”) funds that Plaintiff inadvertently paid to Defendant pursuant to her claim for life
insurance proceeds under the Federal Employees’ Group Life Insurance Act (“FEGLIA”), 5
U.S.C. §§ 8701–8716, [Dkt. 1, ¶ 3]. Upon consideration of Plaintiff’s complaint, motion for
default judgment, and the supporting affidavits and documentary evidence, the undersigned
RECOMMENDS that Plaintiff’s motion for default judgment be GRANTED, and that judgment
be entered against Defendant in the amount of $26,628.85—the amount Plaintiff inadvertently
paid Defendant plus $600 in court costs.
I. BACKGROUND
According to the facts alleged in the Complaint and Defendant’s motion for default
judgment, Cedric Clarke, a federal employee covered under an insurance policy pursuant to
FEGLIA, passed away on or about November 1, 2015. [Dkt. 1, ¶¶ 16–17; Dkt. 17-1, Ex. 1, Liddy
Aff., ¶¶ 5(a), (c)]. On or about December 7, 2015, Defendant asserted a claim to the insurance
proceeds payable upon Cedric Clarke’s death. [Dkt. 1, ¶ 18; Dkt. 17-1, Ex. 1, Liddy Aff., ¶ 5(f)].
According to a Designation of Beneficiary form dated July 3, 2006, Defendant appeared to be the
named beneficiary of 50% of Cedric Clarke’s FEGLIA insurance proceeds upon his death. [Dkt.
1, ¶ 19; Dkt. 17-1, Ex. 1, Liddy Aff., ¶¶ 5(b), (d); Dkt. 17-1, Ex. A]. The total amount of proceeds
payable under Cedric Clarke’s insurance policy was $52,000. [Dkt. 17-1, Ex. 1, Liddy Aff., ¶
5(e)]. Therefore, on or about January 21, 2016, Defendant was paid $26,000 (50% of $52,000)
plus delayed settlement interest of $28.85 for a total of $26,028.85. [Dkt. 1, ¶ 10; Dkt. 17-1, Ex.
1, Liddy Aff., ¶ 5(f)].
After payment was made, however, MetLife received a copy of a January 13, 2010
Designation of Beneficiary form executed by Cedric Clarke from the Office of Personnel
Management (“OPM”), in which he had named an individual other than Defendant to receive
100% of his FEGLIA insurance proceeds upon his death. [Dkt. 1, ¶ 21; Dkt. 17-1, Ex. 1, Liddy
Aff., ¶ 5(g); Dkt. 17-1, Ex. B]. This Designation of Beneficiary form cancelled all previous
beneficiary designations. Id. Based on that form, Plaintiff determined that Defendant was not
entitled to receive Cedric Clarke’s FEGLIA insurance proceeds and was inadvertently paid the
$26,028.85. [Dkt. 1, ¶ 22; Dkt. 17-1, Ex. 1, Liddy Aff., ¶¶ 5(h), 6].
On or about February 9, 2016, MetLife advised Defendant in writing of the error and
requested the return of the insurance proceeds. [Dkt. 1, ¶ 24; Dkt. 17-1, Ex. 1, Liddy Aff., ¶ 7].
MetLife requested the return of the proceeds two more times by letter in May 2016. [Dkt. 1, ¶¶
25–26]. However, Defendant has not reimbursed the proceeds to MetLife, or responded to the
letters. [Dkt. 1, ¶ 27; Dkt. 17-1, Ex. 1, Liddy Aff., ¶ 7].
2
MetLife filed this lawsuit against Defendant, a resident of Washington, D.C., on November
28, 2017, for violations of the FEGLIA, unjust enrichment, and conversion. [Dkt. 1, ¶¶ 36, 44, 50;
Dkt. 17-1, Ex. 1, Liddy Aff., ¶ 3]. On February 24, 2018, personal service was made upon
Defendant. [Dkt. 7-1 at 1; Dkt. 17-1, Ex. 1, Liddy Aff., ¶ 3]. When Defendant failed to file an
answer within the time allotted by Federal Rule of Civil Procedure 12(a)(1)(A), Plaintiff requested
an entry of Default. [Dkt. 8]. Accordingly, on April 18, 2018, the Clerk entered default against
Defendant per MetLife’s request, and mailed a copy of the entry of default to Defendant. [Dkt. 8;
Dkt. 10; Dkt. 17-1, Ex. 1, Liddy Aff., ¶ 3]. Thereafter, on May 3, 2018, Plaintiff filed the instant
motion for entry of default judgment. [Dkt. 14]. Finding Plaintiff’s submissions in support of the
motions insufficient to satisfy Plaintiff’s burden to demonstrate its entitlement to the amount of
monetary damages requested, the undersigned issued a show cause order on June 11, 2018, to
which Plaintiff satisfactorily responded with additional affidavits and evidence. [Dkt. 15; Dkt.
17].
II. LEGAL STANDARD
A default judgment is normally available, where “the adversary process has been halted
because of an essentially unresponsive party.” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir.
1980) (quoting H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691
(D.C. Cir. 1970)). Obtaining a default judgment requires two steps. Lanny J. Davis & Assocs.
LLC v. Republic of Equatorial Guinea, 962 F. Supp. 2d 152, 161 (D.D.C. 2013). First, the plaintiff
must request that the Clerk of the Court enter default against a party who has “failed to plead or
otherwise defend.” Fed. R. Civ. P. 55(a). Second, the plaintiff must move for entry of a default
judgment. Id. 55(b). “Default establishes the defaulting party’s liability for the well-pleaded
allegations of the complaint.” Boland v. Elite Terrazzo Flooring, Inc., 763 F. Supp. 2d 64, 67
(D.D.C. 2011). “Put another way, the clerk’s entry of default alone is enough to establish the
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defendant’s liability, but the court still retains discretion to determine whether default judgment is
appropriate.” Boland v. Providence Constr. Corp., 304 F.R.D. 31, 35 (D.D.C. 2014). However,
“unless the amount of damages is certain, the court is required to make an independent
determination of the sum to be awarded.” Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001).
While demanding default judgment for the amount of a check wrongfully converted is considered
a sum certain under Rule 55(b)(1), see Thorpe v. Thorpe, 364 F.2d 692, 693–94 (D.C. Cir. 1966),
the plaintiff still “must prove its entitlement to the amount of monetary damages requested.” GAG
Enterprises, Inc. v. Rayford, 312 F.R.D. 230, 234 (D.D.C. 2015).
The court may conduct a hearing regarding the scope of damages, Fed. R. Civ. P. 55(b)(2),
but is not required to do so if the affidavits and evidence supporting the motion are sufficiently
detailed. Buckley v. Paperboy Ventures, LLC, 869 F. Supp. 2d 9, 11 (D.D.C. 2012); see also Int'l
Painters & Allied Trades Indus. Pension Fund v. R.W. Amrine Drywall Co., 239 F. Supp. 2d 26,
30 (D.D.C. 2002) (observing that an evidentiary hearing may not be necessary if damages can “be
calculated with relative simplicity”). No hearing is necessary in this case. Upon an order to show
cause, Defendants supplied sufficient “detailed affidavits [and] documentary evidence” to allow
the undersigned to independently assess “the appropriate sum for the default judgment.” Flynn v.
Mastro Masonry Contractors, 237 F. Supp. 2d 66, 69 (D.D.C.2002) (citing United Artists Corp.
v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)). Specifically, MetLife has filed an affidavit from
its Director of Operations, David Liddy, and its attorney Matthew T. Wagman, copies of the
relevant designation of beneficiary forms, and a bill of costs, substantiating its claim for damages
in the amounts of $26,628.25.
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III. DISCUSSION
As a threshold matter, the procedural posture of a default does not relieve a federal court
of its “affirmative obligation” to determine whether it has subject-matter jurisdiction over the
action. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996). Here, the Court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff seeks to recover funds
disbursed under the FEGLIA—a federal statute. Further, section 8715 of FEGLIA grants district
courts of the United States original jurisdiction over civil actions founded on the statute, as is the
case here. 5 U.S.C. § 8715. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1),
which provides that “[a] civil action may be brought in . . . a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located.”
Again, Defendant is a resident of Washington, D.C. [Dkt. 1]. Finally, service of process was
properly effected on Defendant on February 24, 2018, when a private process server delivered
copies of the summons and complaint to Defendant personally at her residence in Washington,
D.C. Fed. R. Civ. P. 4(e)(2); [Dkt. 7]. To date, Defendant has not entered an appearance or
otherwise sought to defend this action.
Where, as here, “there is a complete absence of any request to set aside the default by the
defendant [or] that it has a meritorious defense, it is clear that the standard for default judgment
has been satisfied.” Boland, 304 F.R.D. at 36 (quoting Fanning v. Permanent Sol. Indus., Inc.,
257 F.R.D. 4, 7 (D.D.C. 2009)). In this case, Defendant has failed to respond to the complaint,
Plaintiff’s affidavit for default, the Clerk Office’s entry of default, or to Plaintiff’s motion for
default judgment. Accordingly, the undersigned recommends that default judgment be entered
against Defendant. Id. Further, the undersigned recommends this Court accept the factual
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allegations in the complaint—which are well-pled and undisputed—as true. Flynn v. Jocanz, Inc.,
480 F. Supp. 2d 218, 220 (D.D.C. 2007). Those allegations establish that Defendant’s retention
of the insurance proceeds render her liable for unjust enrichment and conversion when she failed
to return the inadvertently paid life insurance proceeds.1 [Dkt. 1, ¶¶ 38, 46].
Turning to the measure of damages, Plaintiff’s motion for default judgment seeks judgment
in the amount of $26,028.85—the value of the check for insurance proceeds cashed by
Defendant—plus court costs in the amount of $600. [Dkt. 14, Wagman Aff., ¶ 7; Dkt. 14, Ex. A].
Defendant is liable for the amount of the check that was inadvertently paid to her of $26,028.25,
[Dkt. 17-1, Ex. 1, Liddy Aff., ¶ 5(f)]; see Thorpe, 364 F.2d at 693–94 (holding the Clerk of the
Court properly entered default judgment for one-half the amount of a check as a “sum certain”).
Pursuant to Federal Rule of Civil Procedure 54(d), Plaintiff is also entitled to recoup $600 for court
fees and for the cost of serving the complaint. [Dkt. 14, Ex. A].
Finally, while Plaintiff requested attorney’s fees and interest in its complaint, it did not
make these requests in its motion for default judgment and has not otherwise demonstrated its
entitlement to either fees or interest, and if so, in what amounts. [Dkt. 1 at 8]. Therefore, the
1
A plaintiff may recover for unjust enrichment under District of Columbia law when: “(1) the plaintiff conferred a
benefit on the defendant; (2) the defendant retains the benefit; and (3) under the circumstances, the defendant’s
retention of the benefit is unjust.” Whiting v. AARP, 701 F. Supp. 2d 21, 31 (D.D.C. 2010) (quoting News World
Commc’ns, Inc. v. Thompsen, 878 A.2d 1218, 1222 (D.C. 2005)). To establish conversion a plaintiff must show that
the defendant participated in “(1) an unlawful exercise, (2) of ownership, dominion, or control, (3) over the personal
property of another, (4) in denial or repudiation of that person’s rights thereto.” Gov’t of Rwanda v. Rwanda Working
Grp., 227 F. Supp. 2d 45, 62 (D.D.C. 2002). Plaintiff pleads sufficient facts to make out a violation of both unjust
enrichment and conversion under District of Columbia law. [Dkt. 1, ¶¶ 38, 46].
Plaintiff also contends Defendant violated the FEGLIA, which mandates that FEGLIA insurance proceeds be paid to
the appropriate beneficiary designated by the insured. See 5 U.S.C. § 8705(a). However, while it is certainly true that
where a beneficiary has been duly named, the insurance proceeds she is owed under FEGLIA cannot be allocated to
another person, Hillman v. Maretta, 569 U.S. 483, 497 (2013), it is unclear whether the FEGLIA itself creates a federal
cause of action for the recovery of inadvertently paid insurance proceeds. See Herrera v. Metro. Life Ins. Co., No. 11
CIV. 1901 LAK, 2011 WL 6415058, at *4 (S.D.N.Y. Dec. 19, 2011) (noting “FEGLIA does not create federal
remedies” and construing plaintiff’s claim that MetLife paid FEGLIA proceeds to the wrong beneficiary as a federal
common law breach of contract claim). This Court need not resolve that issue in this case, as Defendant’s liability
has been established with respect to the state common law claims of unjust enrichment and conversion.
6
undersigned recommends Plaintiff’s motion be denied without prejudice as to any request for
attorney’s fees and interest. Friends Christian High Sch. v. Geneva Fin. Consultants, 309 F.R.D.
38, 41 (D.D.C. 2015) (denying without prejudice demand for costs where plaintiff “has not
submitted any evidence to establish the amount of those costs”).
For the foregoing reasons, the undersigned RECOMMENDS that this Court GRANT
Plaintiff’s request that default judgment be entered against Defendant in the amount of $26,628.85.
* * * * *
The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United
States District Court for the District of Columbia, any party who objects to the Report and
Recommendation must file a written objection thereto with the Clerk of this Court within 14 days
of the party’s receipt of this Report and Recommendation. The written objections must specifically
identify the portion of the report and/or recommendation to which objection is made, and the basis
for such objections. The parties are further advised that failure to file timely objections to the
findings and recommendations set forth in this report may waive their right of appeal from an order
of the District Court that adopts such findings and recommendations. See Thomas v. Arn, 474 U.S.
140 (1985).
Digitally signed by
G. Michael Harvey
Date: 2018.07.24
Date: July 24, 2018 12:52:09 -04'00'
______________________________
G. MICHAEL HARVEY
United States Magistrate Judge
7