Opinion
Case No. 2:13-cv-00786
01-27-2016
ABOVE ALL SAND & AGGREGATE, LLC, a Utah limited liability company, Plaintiff/Counterclaim Defendant, v. NELCON, INC., a Montana corporation, Defendant/Counterclaim Plaintiff NELCON, INC., a Montana corporation, Third-Party Plaintiff, v. PEYTON CANARY, an individual; DEAN SMITH, an individual, GO AGGREGATES, LLC, a Delaware limited liability company. Third-Party Defendants.
ORDER DENYING MOTION FOR DEFAULT JUDGMENT WITHOUT PREJUDICE
Pursuant to Federal Rule of Civil Procedure 55(b), Defendant, Counterclaimant, and Third-Party Plaintiff Nelcon, Inc. moves the court to enter default judgment against Plaintiff and Counterclaim Defendant Above All Sand & Aggregate, LLC, and Third-Party Defendant Peyton Canary. For the reasons stated below, the court denies the motion without prejudice.
Dkt. 57.
On October 5, 2015, the court entered default against Above All Sand and Mr. Canary. Nelcon now seeks a judgment in the amount of $305,600.90 in damages for breach of contract, plus interest at the maximum rate of 10% per annum from the date of each invoice, or from the date of the breach of contract, through January 20, 2016. Nelcon also seeks an award of attorneys' fees and costs through January 12, 2016. In total, Nelcon seeks a default judgment against Above All Sand and Mr. Canary, jointly and severally, in the amount of $415,391.97.
Dkt. 55-56.
Dkt. 57.
Id.
Id.
"When 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." That said, "[a] party is not entitled to a default judgment as of right." Rather, "[d]ecisions to enter judgment by default are committed to the district court's sound discretion."
Villanueva v. Account Discovery Sys., LLC, 77 F. Supp. 3d 1058, 1066 (D. Colo. 2015) (citation omitted) (internal quotation marks omitted).
Olcott v. Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (citation omitted) (internal quotation marks omitted); see also Villanueva, 77 F. Supp. 3d at 1066 (stating that "the entry of a default judgment is entrusted to the sound judicial discretion of the court" (citation omitted) (internal quotation marks omitted)).
When it comes to awarding damages, Federal Rule 54(c) states that "[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Federal Rule 55(b) further provides that, "[i]f 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." But "[i]n all other cases, the party must apply to the court for a default judgment." In such cases, the court may conduct a hearing to "determine the amount of damages." While the court has discretion to hold a hearing to determine damages, the court need not hold a hearing "if the amount claimed is a liquidated sum or one capable of mathematical calculation."
Id. 55(b)(1).
Id. 55(b)(2).
Id.
Villanueva, 77 F. Supp. 3d at 1075.
Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir. 1985).
In any event, the plaintiff bears the burden "to establish entitlement to recovery of damages against a defaulting defendant." And "[a] default judgment for money damages must be supported by proof." "This requirement ensures that a plaintiff is not awarded more in damages than can be supported by actual evidence." Similarly, a party seeking attorneys' fees must prove the amount of the fees and the reasonableness of the fees.
Bolsa Res., Inc. v. Martin Res., Inc., No. 11-cv-01293, 2014 WL 4882132, at *17 (D. Colo. Aug. 28, 2014) (citation omitted).
Villanueva, 77 F. Supp. 3d at 1075 (citing Klapprott v. United States, 335 U.S. 601, 611-12 (1949)).
Id.
See Hunt, 770 F.2d at 148.
Here, Nelcon has not submitted proof of its damages for breach of contract. For example, Nelcon has not submitted the contract showing that the requested amount of damages is a sum certain. Nor has Nelcon submitted an affidavit proving that the amount claimed is capable of mathematical calculation. Similarly, while Nelcon has submitted a declaration in support of its request for attorneys' fees and costs, Nelcon has not established that it is entitled to attorneys' fees in the first place.
See, e.g., Utah Code Ann. § 78B-5-826. --------
For the foregoing reasons, the court denies Nelcon's motion for default judgment without prejudice.
SO ORDERED this 27th day of January, 2016.
BY THE COURT:
/s/_________
ROBERT J. SHELBY
United States District Judge