Opinion
CASE NO. 14-20228 ADVERSARY PROCEEDING NO. 2:14-ap-2083 ADVERSARY PROCEEDING NO. 2:14-ap-2084 ADVERSARY PROCEEDING NO. 2:14-ap-2085 ADVERSARY PROCEEDING NO. 2:14-ap-2088 ADVERSARY PROCEEDING NO. 2:14-ap-2087
12-22-2015
IN RE: GARY LEWIS ROWE, Debtor. BENJAMIN CAMPBELL, Plaintiff, v. GARY LEWIS ROWE, Defendant. MICHAEL FANARY, Executor of the Estate of Martha Fanary, et al. Plaintiffs, v. GARY LEWIS ROWE, Defendant. JOYCE GARRISON, Executrix of the Estate of Linda Goddard, Plaintiff, v. GARY LEWIS ROWE, Defendant. JOHN HEDRICK, Executor of the Estate of Ruth Tulley, Plaintiff, v. GARY LEWIS ROWE, Defendant. TIMOTHY WYSONG, Plaintiff, v. GARY LEWIS ROWE, Defendant.
CHAPTER 7 MEMORANDUM OPINION AND ORDER
Pending are the Plaintiffs' separate motions for default judgment in each of these actions, filed June 5, 2015.
These are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(J). The Court is vested with subject matter jurisdiction pursuant to 28 U.S.C. § 157 and 28 U.S.C. § 1334.
The only relief sought in the demand sections of Plaintiffs' complaints is a denial of Gary Rowe's discharge in the underlying chapter 7 case. That relief, however, has already been granted in A.P. 14-2095, Dckt. No. 8. The Court additionally notes that the proposed default judgment orders submitted by Plaintiffs seek tens of thousands of dollars not sought in the complaints. The Due Process Clause and Rule 54(c) prohibit this extra relief inasmuch as it is at variance with the demands in the operative pleadings. See Fed. R. Civ. P. 54(c) ("A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.").
As noted by many courts, "Fundamental fairness, required by due process of law, limits the scope of relief, which is, undoubtedly, why Rule 54(c), Fed.R.Civ.P., proscribes that a default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." See, e.g., Enterprise Bank & Trust v. Vintage Ranch Inv., LLC, 2012 WL 1267988, at *2 (D. Ariz. Apr. 16, 2012) (internal citations and quotation marks omitted).
The Court has additionally reviewed the recording of the hearing held July 16, 2015, and is unable to satisfy itself that Mr. Rowe received notice of all the amounts and relief sought. In the event plaintiffs persist in seeking a money judgment in addition to denial of discharge, they will have to pursue as much by an amended pleading, an agreed judgment order that is consistent with Rule 4.3, West Virginia Rules of Professional Conduct, and any other rule relevant to the circumstances, or some other mechanism sanctioned by governing law.
It is thus ORDERED that the Plaintiffs' respective motions for default judgment be, and are hereby, DENIED as moot. It is further ORDERED that counsel for the Plaintiffs be, and hereby is, directed to advise the Court in writing on or before January 8, 2015, whether his clients intend to pursue any further relief in these actions. In the absence of such writing, the Court will consider the dismissal without prejudice of the actions for failure to prosecute.
The Clerk's Office shall provide a copy of this written opinion and order to the Plaintiffs, their counsel, Defendant, Defendant's counsel, if any, and the United States Trustee.
DATED: December 22, 2015
/s/_________
Frank W. Volk
United States Bankruptcy Judge