IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DELISA BROWN, :

Plaintiff/Counter-Defendant, :

vs.

:

CEMEX, INC. and AMERICAN

GENERAL LIFE COS, : CA 05-0552-C

Defendants/Counter-Plaintiffs/ :

Third-Party Plaintiffs,

:

vs.

:

TERRELL BROWN, SHATOYA

BROWN, SHANNON BROWN, and :

LARKIN & SCOTT FUNERAL HOME,

:

Third-Party Defendants.

MEMORANDUM OPINION AND ORDER

This cause is before the Court on the defendants’ motion for discharge

of further liability and dismissal with prejudice (Doc. 31; see also Doc. 32) and

the settlement agreement executed by the plaintiff, Delisa Brown, and the

third-party defendants, Terrell Brown, Shatoya Brown, Shannon Brown, and

Larkin & Scott Funeral Home (see Attachment). The parties in this case have

Case 2:05-cv-00552-C Document 42 Filed 08/23/06 Page 1 of 9
1 In November of 2005, plaintiff, Delisa Brown, and the defendants, Cemex, Inc.

and American General Life Companies, executed a written consent form, same reading, in

relevant part, as follows: “In accordance with the provisions of 28 U.S.C. 636(c) and

Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge

conduct any and all proceedings in this case, and order the entry of a final judgment, and conduct

all post-judgment proceedings.” (Doc. 15)

2 At the hearing held in this case on August 18, 2006, all third-party defendants,

through counsel, orally consented to the exercise of jurisdiction by the undersigned. Cf. Roell v.

Withrow, 538 U.S. 580, 123 S.Ct. 1696, 1703, 155 L.Ed.2d 775 (2003) (“We think the better rule

is to accept implied consent where, as here, the litigant or counsel was made aware of the need

for consent and the right to refuse it, and still voluntarily appeared to try the case before the

Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship

by depriving parties of the luxury of waiting for the outcome before denying the magistrate

judge’s authority. Judicial efficiency is served; the Article III right is substantially honored.”).

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consented, either in writing1 or orally2, to the exercise of jurisdiction by the

Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings.

Through this order the Court GRANTS the defendants’ motion for discharge

of further liability and dismissal with prejudice and APPROVES the

settlement between plaintiff and the third-party defendants, one of whom is a

minor child.

FINDINGS OF FACT

1. On August 31, 2005, plaintiff, Delisa Brown, filed a complaint

for declaratory judgment in the Circuit Court of Marengo County, Alabama

against Cemex, Inc. and American General Life Companies (hereinafter, “U.S.

Life”) with respect to proceeds ($31,500.00) from a life insurance policy

purchased by plaintiff’s deceased husband, James E. Brown, and issued by

Case 2:05-cv-00552-C Document 42 Filed 08/23/06 Page 2 of 9
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U.S. Life to Cemex, the decedent’s former employer. (Doc. 1, Exhibit A,

COMPLAINT FOR DECLARATORY JUDGMENT) 

2. On September 29, 2005, the defendants removed the action to

this Court alleging federal question jurisdiction, pursuant to 28 U.S.C. § 1331

and 29 U.S.C. § 1132(e)(1), on the basis that plaintiff sought to recover

benefits under an employer-sponsored ERISA plan. (Doc. 1) 

3. On October 10, 2005, U.S. Life answered the complaint and

therein filed a counterclaim for interpleader seeking to pay the contested life

insurance proceeds into the Court’s registry. (Doc. 9, at 5-9)

4. On December 7, 2005, with leave of Court, U.S. Life tendered

a check in the amount of $32,694.41 (the proceeds of the policy and applicable

interest) for deposit into the Court’s registry. (Docs. 17, 19 & 21)

5. On December 15, 2005, U.S. Life filed a third-party complaint

against Terrell Brown, Shatoya Brown, Shannon Brown and Larkin & Scott

Funeral Directors. (Doc. 22) 

6. On January 23, 2006, Larkin & Scott Funeral Directors filed a

funeral expense bill totaling $7,289.00 (Doc. 27) and, on January 30, 2006,

each child of the decedent, third-party defendants Terrell Brown, Shatoya

Brown, and Shannon Brown, answered the third-party complaint by claiming

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an interest in the subject insurance proceeds (Docs. 28-30). 

7. On March 10, 2006, the defendants filed their motion for

discharge of further liability and dismissal with prejudice. (Doc. 31; see also

Doc. 32)

7. U.S. Life and Cemex [] request the following

relief from the Court:

a. that, pursuant to 28 U.S.C. §§ 2361, 2283,

and 1651, the Court will enjoin the Plaintiff/CounterclaimDefendant and Third-Party Defendants, their agents, attorneys,

representatives, heirs, executors, assigns, and all persons

claiming through or under them, from instituting or pursuing any

state or federal court action for the recovery of the proceeds of

Group Policy No. G-246282 and, upon final hearing,

permanently enjoin and restrain Plaintiff/CounterclaimDefendant and Third-Party Defendants, their agents, attorneys,

representatives, heirs, executors, assigns, and all persons

claiming through or under them, from instituting or pursuing any

suit or proceedings in any state or federal court for the recovery

of the proceeds of Group Policy No. G-246282 or relating in any

way to U.S. Life and/or Cemex’s actions with respect to the

handling of this claim; [and]

b. that the Court will discharge U.S. Life and

Cemex from all further liability under or relating to the proceeds

of the Group Policy No. G-246282, other than as ordered by the

Court[.]

(Doc. 31, at 2-3)

8. On April 17, 2006, the Court ordered the plaintiff and third-party

defendants to appear in the federal courthouse in Selma, Alabama, on June 22,

Case 2:05-cv-00552-C Document 42 Filed 08/23/06 Page 4 of 9
3 Woodford Dining, Jr., filed his notice of appearance as attorney of record for

Larkin & Scott Funeral Directors on June 21, 2006. (Doc. 39)

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2006, to discuss their various interests in the insurance proceeds paid into the

registry of the Court and whether any of them harbored any objection to the

defendants’ motion for discharge of further liability and dismissal with

prejudice. (Doc. 33) The Court sua sponte rescheduled the hearing for August

18, 2006. (Doc. 35)

9. On June 19, 2006, Barrown D. Lankster, Esquire, filed a notice

of appearance as attorney of record for third-party defendants Terrell Brown,

Shatoya Brown, and Shannon Brown (Doc. 37) and concurrently therewith

filed a motion for the appointment of a guardian ad litem to represent the

interests of Shannon Brown, a minor child born on November 25, 1990 (Doc.

38). The Court granted the motion for the appointment of a guardian ad litem

on August 3, 2006; Deborah Brown, Shannon Brown’s natural mother, was

appointed as her guardian ad litem. (Doc. 40)

10. At the August 18, 2006 hearing in Selma, Alabama, the Court

was presented with a settlement agreement executed by the attorneys of record

for plaintiff and third-party defendants Terrell Brown, Shatoya Brown, and

Larkin & Scott Funeral Directors,3

 as well as third-party defendant Shannon

Brown’s guardian ad litem, Deborah Brown. (Attachment)

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The parties in the matter of DELISA BROWN V. AIG, et

al., CA 05-552-C, which is a pending matter in the U.S. District

Court for the Southern District of Alabama Northern Division

agree to the following disbursement of funds:

TOTAL AMOUNT PAID INTO COURT BY AIG $32,694 

LARKIN & SCOTT LIEN FOR FUNERAL [$]7,289

DELISA BROWN [$]12,702.50

SHANNON BROWN [$]4,234.17

SHATOYA BROWN [$]4,234.17

TERRELL BROWN [$]4,234.17

We the parties to this matter agree to the above

disbursement of funds and request that the court enter an order

disbursing the funds payable as listed above. Any interest

accrued is to be divided among the parties by share of

disbursement, less the court’s 10% assessment.

(Id.) 

11. The Court has been advised that out of plaintiff’s proceeds of the

above settlement plaintiff’s attorney, Kimberlyn P. Malone, Esquire, is

requesting attorney’s fees totaling $3,175.00. The evidence presented to this

Court and the evidence recited in this order causes this Court to conclude that

the attorney’s fees requested by plaintiff’s counsel are just, fair, and equitable.

Therefore, the Court approves the fees requested by plaintiff’s counsel.

12. Based on the evidence presented at the hearing in this cause on

Case 2:05-cv-00552-C Document 42 Filed 08/23/06 Page 6 of 9
4 These amounts come to a total of $32, 694.01. As aforesaid, defendant U.S. Life

paid into the registry of this Court $32,694.41. The remaining $.40 shall go to the minor thirdparty defendant Shannon Brown.

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August 18, 2006, as well as all pertinent pleadings contained in the file, it is

determined that the proposed settlement is in the best interest of the minor

child of the decedent, Shannon Brown (as well as the other parties), and is a

just, fair, and equitable conservation of her individual interests. The settlement

is hereby ratified and expressly approved by the Court.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND

DECREED as follows:

1. That the money deposited into the registry of this Court by

defendant U.S. Life shall be divided in the following manner: (1) plaintiff,

Delisa Brown, shall be paid $12,702.50; (2) third-party defendant Shannon

Brown shall have $4,234.17, with her fair distribution being paid to her mother

and guardian ad litem, Deborah Brown; (3) third-party defendant Shatoya

Brown shall have $4,234.17; (4) third-party defendant Terrell Brown shall

have $4,234.17; and (5) third-party defendant Larkin & Scott Funeral

Directors shall have $7,289.00.4

 In addition, the interest that has accrued on

the monies paid into the registry of the Court shall be divided among the

parties to the settlement agreement by share of disbursement, less the Court’s

Case 2:05-cv-00552-C Document 42 Filed 08/23/06 Page 7 of 9
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10% managing assessment, as follows: (1) plaintiff, Delisa Brown, shall be

paid 39% of the accrued interest; (2) third-party defendant, Shannon Brown,

shall have 13% of the accrued interest, with distribution being made to her

mother and guardian ad litem Deborah Brown; (3) third-party defendant

Shatoya Brown shall have 13% of the accrued interest; (4) third-party

defendant Terrell Brown shall have 13% of the accrued interest; and (5) thirdparty defendant Larkin & Scott Funeral Directors shall have 22% of the

accrued interest.

2. That attorney’s fees of $3,175.00 are awarded out of Delisa

Brown’s portion of the settlement proceeds to Kimberlyn P. Malone, Esquire,

as a reasonable attorney’s fee for the representation of plaintiff.

3. That the defendants’ motion for discharge of further liability and

dismissal with prejudice (Doc. 31) be and the same hereby is GRANTED.

The Court ENJOINS the plaintiff and third-party defendants from instituting

or pursuing any suit or proceedings in any state or federal court for the

recovery of the proceeds of Group Policy No. G-246282 or relating in any way

to the defendants’ actions with respect to the handling of this claim and

DISCHARGES the defendants, U.S. Life and Cemex, from all further liability

under or relating to the proceeds of Group Policy No. G-246282.

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DONE and ORDERED this the 22nd day of August, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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