Opinion
4:20-CV-00135 - BRW-JTK
12-22-2021
ROBERT E RACK, as Special Administrator for the Estate of Lois M. Rack, Deceased, and on behalf of the wrongful death beneficiaries of Lois M. Rack; PLAINTIFF v. JOSEPH SCHWARTZ, ROSIE SCHWARTZ, JOHN DOES 1-5, Unknown Defendants DEFENDANTS
ORDER
BILLY ROY WILSON UNITED STATES DISTRICT JUDGE
I. BACKGROUND
On October 14, 2020, a Clerk's Entry of Default was entered against Defendants Joseph Schwartz and Rosie Schwartz, and copies of that Default were mailed to Joseph Schwartz and Rosie Schwartz that same day.
Doc. No. 39.
II. APPLICABLE LAW
Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” A clerk's entry of default under Federal Rule of Civil Procedure 55(a) permits the plaintiff to move for default judgment under Rule 55(b). Under Rule 55(b)(1), the clerk can enter default judgment if a “plaintiff's claim is for a sum certain or a sum that can be made certain by computation, ”like an amount clearly due under a contract. If the claim is not for a definite amount, the plaintiff “must apply to the court for a default judgment.” Rule 55(b) provides that a “default judgment may be entered against a party who has defaulted ‘for not appearing.'” The Eighth Circuit “has not articulated specific factors that must be considered in determining whether a Rule 55(b) motion for default judgment for failure to defend should be granted.”
See Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (“When a party has failed to plead or otherwise defend against a pleading listed in Rule 7(a), entry of default under Rule 55(a) must precede grant of a default judgment under Rule 55(b).”) (citation and internal quotations omitted).
Purity Bakery Bldg. Ltd. P'hip v. Penn-Star Ins. Co., No. 11-CV-0094 PJS AJB, 2011 WL 1324973, at 2 (D. Minn. Apr. 7, 2011) (“Typically, Rule 55(b)(1) is used to collect a specific amount that was due on a specific date under a specific contract, such as the balance due on a student loan.”); see also Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C. Cir. 1966) (holding that the “full amount of the check in question” was a sum certain for purposes of Rule 55(b)(1)); KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F.3d 1, 19-20 (1st Cir. 2003) (collecting cases on the definition of “sum certain.”).
Am. Auto. Ass'n, Inc. v. Advance Quotes, LLC, No. 6:10-CV-06020, 2010 WL 2985505, at 2 (W.D. Ark. June 29, 2010), report and recommendation adopted, No. CIV. 10-6020, 2010 WL 2990063 (W.D. Ark. July 26, 2010) (citing Fed.R.Civ.P. 55(b)(1)).
Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996). The Eighth Circuit has held that failing to appear at hearings and depositions even after filing an answer is “ample basis for a grant of default judgment.”; see also Dole v. L & J, Inc., No. CIV. A. LR-C-89-339, 1990 WL 250974, at 1 (E.D. Ark. Feb. 26, 1990) (granting default judgment after plaintiff defaulted for failure to appear).
“Upon default, the factual allegations of a complaint (except those relating to the amount of damages) are taken as true.” However, a court must ensure that the “unchallenged facts constitute a legitimate cause of action” before entering a default judgment. “Under Rule 55(b)(2), the Court may hold an evidentiary hearing to determine damages, but a hearing is not required if the amount is ascertainable from definite figures, facts, and evidence provided by plaintiffs.”
Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010).
Id.
BMO Harris Bank N.A. v. Richland Express, Inc., No. 2:17-CV-00149-KGB, 2018 WL 8299883, at 7 (E.D. Ark. Sept. 28, 2018); see also Fed.R.Civ.P. 55(b)(2); Taylor v. City of Ballwin, 859 F.2d 1330, 1332-33 (8th Cir. 1988).
III. DISCUSSION
In this case, the Clerk's entry of default was appropriate because Defendants failed to file an answer or other responsive pleading within twenty-one days of service of the Summons and Complaint, and that failure was shown by affidavit. Plaintiff filed a status report from the Department of Defense showing that neither Defendant is in active military service in compliance with the Servicemembers Civil Relief Act. Taking Plaintiff's allegations in the Complaint as true, except for those allegations as to the amount of damages, I conclude that the unchallenged facts constitute a legitimate cause of action pursuant to Arkansas Survival of Actions Statute (Ark. Code Ann. § 16-62-101) and the Arkansas Wrongful Death Act (Ark. Code Ann. § 16-62-102). Accordingly, Plaintiff is entitled to default judgment against Defendants. On June 30, 2021, the case was referred to Judge Kearney for trial and disposition on damages. On October 19, 2021, Judge Kearney held an evidentiary hearing for the purpose of establishing damages and his Recommendations are forthcoming.
Doc. Nos. 38-1, 38-2.
Doc. Nos. 38-3, 38-4.
Doc. No. 44.
CONCLUSION
Based on the findings of fact and conclusions of law above, default judgment is entered against Defendants Joseph Schwartz and Rosie Schwartz.
IT IS SO ORDERED