IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30907

Summary Calendar

ROSE MEYER

Plaintiff-Appellant

v.

FRED M. BAYLES; JOANNE CALDWELL, FORMERLY MARRIED TO 

FRED M. BAYLES; SUSAN SWINEA; ARBOR TERRACE OF LOUISIANA, 

INCORPORATED,

Defendants-Appellees

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 3:12-CV-43

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

This is an appeal from the district court’s order denying a motion for 

default judgment and dismissing all claims. Finding no error, we AFFIRM.

Rose Meyer sued The Arbor and Terrace Senior Center of Ruston, LLC

(“the LLC”) for discriminatory termination. When the LLC failed to appear, 

Meyer obtained a default judgment in the amount of $82,333.00. Because she 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 12, 2014

Lyle W. Cayce

Clerk

 

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has been unable to collect her judgment against the LLC, Meyer brought the 

present action against its principals and its successor corporation. Meyer 

alleges that the successor corporation, Arbor Terrace, is a shell corporation and 

that the LLC’s principals transferred the assets into the new corporation to 

avoid the debt. She asserts that the defendants should be liable for the default 

judgment against the LLC. The claims against two defendants, Swinea and 

Caldwell, were dismissed with prejudice. The claim against Bayles was stayed 

during the pendency of a bankruptcy action. Arbor Terrace never appeared. 

After the court filed an intent to dismiss Arbor Terrace for failure to take 

default 60 days after service, Meyer filed a motion for default judgment. The 

district court denied the motion for default judgment and gave notice of its 

intent sua sponte to dismiss the case in its entirety. After considering Meyer’s 

supplemental brief, the district court dismissed the case with prejudice.

STANDARD OF REVIEW

This court reviews a district court’s grant of a motion to dismiss de novo. 

Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010). A denial of a 

motion to enter default judgment is reviewed for abuse of discretion. 

Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169, 179 (5th Cir. 

2007). After 14 days have elapsed since the Clerk’s entry of default, a plaintiff 

may move for default judgment under Federal Rule of Civil Procedure 55(b). 

“There must be sufficient basis in the pleadings” for the entering of a default 

judgment, and the court must accept the well-pleaded factual allegations in 

the plaintiff’s complaint. Nishimatsu Constr. Co. v. Houston Nat’l Bank, 

515 F.2d 1200, 1206 (5th Cir. 1975).

DISCUSSION

The district court held that a default was properly entered because Arbor 

Terrace failed to defend the suit by filing a sufficient answer, but it refused to 

enter a default judgment. The district court determined that Meyer’s action, 

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while not well articulated in the complaint, most closely resembles a revocatory 

action in which an obligee annuls an act of the obligor that causes the obligor’s 

insolvency. See Traina v. Whitney Nat’l Bank, 109 F.3d 244, 247-48 (5th Cir. 

1997). Under Louisiana law, a revocatory action requires the obligee to prove 

that the transaction was “made or effected after the right of the obligee arose 

and caused or increased by the obligor’s insolvency.” Id. at 247. The obligee 

must also prove prejudice, injury, or damage as a result of the act. Parish Nat’l 

Bank v. Wilks, 2004-1439 (La. App. 1 Cir. 8/3/05), 923 So. 2d 8, 15.

The district court concluded that Meyer failed to carry her burden of 

proving prejudice because documents offered by Meyer to prove the asset 

transfer show that Kilpatrick Life Insurance Company has a preferred claim 

against the property of the LLC in the amount of $5,500,000. Because there is 

no evidence that Arbor Terrace’s property is worth an amount in excess of 

Kilpatrick’s preferred claim, the district court concluded that Meyer has not 

shown any possibility of collecting her judgment, even if the transfer had not 

occurred. Accordingly, it denied the motion to enter a default judgment.

Meyer contends that the district court abused its discretion because the 

cash deed transferring the LLC’s assets to Arbor Terrace does not reference 

the actual value of the assets and there was no showing that the LLC was 

insolvent before the transfer. Neither of these arguments is sufficient to carry 

Meyer’s affirmative burden of demonstrating that she was injured by the 

transfer. The cash deed recited the assumption of the preferred Kilpatrick

claim, and the district court did not abuse its discretion in finding that Meyer 

had failed to carry her burden.

Meyer’s additional arguments are not persuasive. She asserts that 

under the same statute her complaint could be construed as an “oblique” 

action, in which a creditor exercises a right belonging to the debtor in the 

debtor’s name. She does not explain how construing the suit in this manner 

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overcomes her failure to carry her burden of proving prejudice. Additionally, 

she asserts that the district court should not have dismissed the claims against 

Bayles because he, unlike Arbor Terrace, had answered the complaint. Again, 

this difference does not overcome Meyer’s failure to satisfy the threshold 

elements of the revocatory action. Meyer’s failure to show that she was injured 

by the transfer is fatal to all of her claims. The district court did not abuse its 

discretion in denying the motion for default judgment, nor was it error to 

dismiss the case with prejudice. The judgment is AFFIRMED.

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