Opinion
Case No: 2:15-cv-223-FtM-38CM
08-25-2015
WHIRLPOOL CORPORATION, Plaintiff, v. GEORGE L. OLSEN, SANDRA J. OLSEN, SANDRA J. WYSOCKI and ROBERT WYSOCKI, Defendants.
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This matter comes before the Court on Whirlpool Corporation's Motion for Clerk's Entry of Default Judgment against Defendants George L. Olsen and Sandra J. Olsen (Doc. #35) filed on August 5, 2015. Defendants George and Sandra Olsen failed to file a response in opposition. This matter is now ripe for review.
Background
This background section comes from the operative Complaint (Doc. #7). --------
Plaintiff Whirlpool Corporation ("Whirlpool") initiated this lawsuit against Defendants George L. Olsen, Sandra J. Olsen, Sandra J. Wysocki, and Robert Wysocki on April 8, 2015. (Doc. #1). Bassgar-Illinois, Inc. ("Bassgar") was a business that sold Whirlpool consumer appliances. (Doc. #7, at ¶15). Whirlpool sold consumer appliances to Bassgar and sent invoices to Bassgar accordingly. (Doc. #7, at ¶16; Doc. #7-1). Bassgar, however, failed to pay Whirlpool. (Doc. #7, at ¶18). Bassgar now owes Whirlpool $529,409.65. (Doc. #7, at ¶20; Doc. #7-2, at 82-86). Bassgar has now gone out of business. (Doc. #7, at ¶19).
George and Sandra Olsen, along with Sandra and Robert Wysocki, personally guaranteed Bassgar's indebtedness to Whirlpool. (Doc. #7, at ¶¶17, 21; Doc. #7-2, at 73-81). They, however, failed to pay Bassgar's outstanding debt. (Doc. #7, at ¶22). In light of their failure, Whirlpool claims defendants breached their guaranties (Count I) and contracts (Count II) and thus Whirlpool has been damaged. (Doc. #7, at ¶32).
Whirlpool properly served George and Sandra Olsen on April 15, 2015. (Doc. #9; Doc. #10). To date, George and Sandra Olsen have failed to timely respond to the operative complaint. See Fed. R. Civ. P. 12(a)(1)(A)(i). On June 3, 2015, the Clerk sua sponte entered a clerk's default against George and Sandra Olsen pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. (Doc. #23). To date, George and Sandra Olsen have failed to answer, respond, or otherwise make an appearance in this case. Now, Whirlpool seeks an entry of default judgment pursuant to Rule 55(b)(1). To support its Motion, Whirlpool filed an affidavit. (Doc. #35 at 8).
Discussion
If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.Fed. R. Civ. P. 55(b)(1).
Upon review of the record, the Court is satisfied Whirlpool's claim is for a sum certain and this sum is supported with an affidavit. (Doc. #35 at 8). The record does not reflect Defendants George and Sandra Olsen are minors or incompetent. Under the plain language of Rule 55(b)(1), no further hearing is necessary. See Jon D. Derrevere, P.A. v. Mirabella Found., No. 6:10-cv-925-Orl-28DAB, 2011 WL 1983352, at *3 (M.D. Fla. Apr. 26, 2011). As such, the Clerk must enter judgment for the amount and costs against Defendants George and Sandra Olson, here $529,409.65. (Doc. #30-1). See Halpin v. David, No. 4:06cv457-RH/WCS, 2009 WL 455354, at *1 (N.D. Fla. Feb. 19, 2009) (emphasizing that in sum certain cases that the clerk "must" enter a default judgment.).
Accordingly, it is now ORDERED:
1. Whirlpool Corporation's Motion for Clerk's Entry of Default Judgment against Defendants George L. Olsen and Sandra J. Olsen (Doc. #35) is GRANTED. The Clerk must enter judgment for Plaintiff Whirlpool Corporation and against Defendants George and Sandra Olson, in the amount of $529,409.65, pursuant to Federal Rule of Civil Procedure 55(b)(1).
2. This action is DISMISSED with prejudice as it relates to Defendants George and Sandra Olson only.
3. This case remains open as it relates to Plaintiff Whirlpool Corporation and Defendants Sandra and Robert Wysocki.
DONE and ORDERED in Fort Myers, Florida, this 25th day of August, 2015.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record