BRANCH BANKING AND TRUST COMPANY v. THE WOMEN'S HEALTH INSTITUTE OF MACON PC

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BRANCH BANKING AND TRUST ) COMPANY, ) ) Plaintiff, ) ) v. ) CASE NO. 5:19-CV-176 (MTT) ) THE WOMEN’S HEALTH INSTITUTE ) OF MACON, PC, et al., ) ) Defendants. ) ) ORDER Plaintiff Branch Banking and Trust Co. has moved for default judgment against Defendants The Women’s Health Institute of Macon, P.C.; ELO Outpatient Surgery Center, LLC; Haremu Holdings, LLC; and Anayo Umerah, M.D., P.C. (“Corporate Defendants”) after the Clerk entered default against them. Docs. 13; 14. On May 8, 2019, BB&T filed suit alleging that Defendants Nnaemeka Umerah, Anayo Umerah, and Stella Umerah (“Individual Defendants”) and Corporate Defendants are jointly and severally liable for the unpaid principal balance due on a promissory note with a principal of more than $75,000.1 Doc. 1. Between May 28 and May 30, all Defendants were served. Docs. 4-1; 4-2; 4-3; 4-4. In July, the Individual Defendants filed suggestions of bankruptcy, and the Court stayed the case as to the Individual Defendants only, leaving Corporate Defendants fully responsible for the promissory 1 BB&T’s complaint states that it complied with the notice requirements of O.C.G.A. § 13-1-11. Doc. 1 ¶¶ 42, 45. note. Docs. 1 ¶ 39; 6; 7; 10. The Corporate Defendants have not yet answered the complaint. While the factual allegations in the complaint―deemed admitted by Corporate Defendants by their failure to answer―may establish BB&T has a right to recover amounts due pursuant to the promissory note, it is not yet clear whether default judgment can be entered against them. See Frow v. De La Vega, 82 U.S. 552, 554 (1872) (holding that the default of one defendant cannot be entered before determining the liability of the non-defaulting defendant because the inconsistency of two different judgments against joint defendants would be illogical); see also, e.g., Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499 , 1512 (11th Cir. 1984) (extending Frow to cases where “defendants are similarly situated, but not jointly liable”); Branch Banking & Trust Co. v. Poplar Dev. Co., LLC, 2013 WL 2367963 , at *1 (M.D. Ga. May 29, 2013) (citations omitted); Bank of the Ozarks v. Arco Cmty. Outreach Coal., Inc., 2013 WL 164421 , at *2 (S.D. Ga. Jan. 15, 2013) (citations omitted). BB&T alleges that both Corporate and Individual Defendants are “jointly and severally” liable for the amounts due on the promissory note. Doc. 1 ¶¶ 46, 47. Although Corporate Defendants are in default, Individual Defendants are not. See Docs. 6; 7; 10. Accordingly, the Court ORDERS BB&T to file supplemental briefing regarding whether it should grant its motion for default judgment against Corporate Defendants (Doc. 14) in light of Frow v. De La Vega, 82 U.S. 552 (1872). SO ORDERED, this 8th day of January, 2020. S/ Marc T. Treadwell MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT