International Fidelity Insurance Company v. La Porte Construction et alMOTION for Default Judgment as to defendantD. UtahFebruary 19, 2019Clark B. Fetzer clark@mountainwestlaw.com (#1069) John W. Mann john@mountainwestlaw.com (#11712) Attorneys for International Fidelity Insurance Company FETZER SIMONSEN BOOTH & JENKINS, P.C. 50 West Broadway, #1200 Salt Lake City, UT 84101 Office: (801) 328-0266 Fax: (801) 328-0269 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION INTERNATIONAL FIDELITY INSURANCE COMPANY, a New Jersey corporation, Plaintiff, vs. LA PORTE CONSTRUCTION, INC., et al., Defendants. Case No. 2:16-cv-00032--JNP-EJF MOTION FOR DEFAULT JUDGMENT Plaintiff, International Fidelity Insurance Company (“IFIC”), moves the Court for default judgment in favor of IFIC and against defendants Amberley Development I, LLC, Amberley Development II, LLC, Amberley Properties I Managing Member, LLC, Benmel Development, L.L.C., and Tannach Management Group, LLC (collectively “Defaulting Defendants”). RELIEF SOUGHT AND GROUNDS FOR RELIEF IFIC seeks a default judgment against the Defaulting Defendants and each of them pursuant to Fed. R. Civ. P. 55(b)(2) and DUCivR 55-1(b)(2). Grounds for this motion (“Motion”) are the provisions of the cited rules, the Court’s Order for Justin Hatch to Show Case 2:16-cv-00032-JNP-EJF Document 138 Filed 02/19/19 Page 1 of 6 Cause (Document 125), the Default Certificate (Document 134), and approval of the form of Default Judgment by Mr. Hatch. RELEVANT FACTS 1. On January 16, 2019, the Court entered its Order for Justin Hatch to Show Cause (Document 125) in which “Mr. Hatch is ORDERED TO SHOW CAUSE WITHIN TEN DAYS of this order why judgment should not be entered against [Defaulting Defendants] for failure to answer within sixty days of waiver of service on February 2, 2016.” (Bold in original.) 2. Mr. Hatch did not show cause within ten days of said order (Document 125) why judgment should not be entered against Defaulting Defendants. 3. On February 11, 2019, the Clerk entered the default of the Defaulting Defendants. The Default Certificate is submitted herewith. 4. Mr. Hatch has approved the form of the proposed Default Judgment submitted herewith. 5. On February 12, 2019, the Court entered its Memorandum Decision and Order (Document 136) on IFIC’s Motion for Partial Summary Judgment granting a money judgment against defendants herein referred to as Logues et al. in the amount of $1,320,176.66 and granting a lien on all real and personal property of Logues et al., of whatever kind or nature and wherever located, to the extent of $16,300,000.00 in value of said real and personal property. 6. IFIC seeks the same judgment against Defaulting Defendants as the Court granted to IFIC against Logues et al. in the Memorandum Decision and Order. Case 2:16-cv-00032-JNP-EJF Document 138 Filed 02/19/19 Page 2 of 6 7. None of Defaulting Defendants is in military service. They are limited liability companies. Declaration of Clark B. Fetzer Regarding Nonmilitary Service Status of Defaulting Defendants. ¶ 6. ARGUMENT Fed. R. Civ. P. 55 authorizes the Court to enter a default judgment under a two-step process: (1) the clerk of the court “must enter the party’s default” under Rule 55(a) and (2) a party may move the court for entry of a default judgment under Rule 55(b). Bodyguard Productions v. Does 1 - 25, No. 2:18-cv-00026-TC, 2018 WL 5849473, at *2 (D. Utah Nov. 8, 2018). In this case the Clerk has entered the default of Defaulting Defendants. See the Default Certificate dated February 11, 2019 (Document 134) submitted herewith. This motion is governed by legal standards set forth in Bodyguard Productions. “‘[T]he entry of a default judgment is committed to the sound discretion of the district court.’ Tripodi v. Welch, 810 F.3d 761, 764 (10th Cir. 2016).” Id. In addition, Default judgment “must be supported by a sufficient basis in the pleadings.” Tripodi, 810 F.3d at 765. After the clerk has entered default, “it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (quoting 10A Charles A. Wright, Arthur R.Miller & Mary K. Kane, FEDERAL PRACTICE AND PROCEDURE § 2688, at 63 (3d ed. 1998); see Fed. R. Civ. P. 8(b)(6) (“An allegation ... is admitted if a responsive pleading is required and the allegation is not denied.”). The court must first assure itself of personal and subject matter jurisdiction. Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986). It must then determine whether the plaintiff’s complaint contains sufficient factual matter, accepted as true, to state a claim for relief. Stampin’ Up!, Inc. v. Hurst, No. 2:16-cv-00886-CW, 2018 WL 2018066, at *4 (D. Utah May 1, 2018). The court may also look to declarations and other exhibits when evaluating a plaintiff’s claims. See, e.g., Major Bob Music v. S. Shore Sports Bar & Grill, Inc., No. 2:08-cv-689-CB, 2010 WL 265330, at *1 (D. Utah June 30, 2010). Case 2:16-cv-00032-JNP-EJF Document 138 Filed 02/19/19 Page 3 of 6 Id. In Bodyguard Productions, this Court granted plaintiff’s motion for a default judgment against seven defendants who had failed to defend, five of whom appeared pro se. Analysis of the principles followed by this Court in Bodyguard Productions shows that IFIC satisfies these principles in this case. I. THIS COURT HAS JURISDICTION OF THE CLAIMS AGAINST DEFAULTING DEFENDANTS This Court has personal jurisdiction over all Defaulting Defendants. Each is a Utah limited liability company and each was properly served in Utah. The Court also has subject matter jurisdiction under 28 U.S.C. 1332 (diversity jurisdiction) in that IFIC is organized under the laws of the State of New Jersey and the amount in controversy exceeds $75,000. II. IFIC’S COMPLAINT CONTAINS SUFFICIENT FACTUAL MATTER TO STATE A CLAIM FOR RELIEF AGAINST DEFAULTING DEFENDANTS IFIC incorporates in this motion its Motion for Partial Summary Judgment (“Summary Judgment Motion”) against Benjamin Logue, Lisa Marie Swasey Logue, La Porte Construction, Inc., and La Porte Management, Inc. (“Logues et al.”) (Document 95). Under the authorities cited in that motion, all unchallenged facts stated in IFIC’s complaint constitute a legitimate cause of action against the Defaulting Defendants just as they constitute a legitimate cause of action against Logues et al. Defaulting Defendants have the same obligations as Logues et al. under the Indemnity Agreement referred to in the complaint, and, like Logues et al., failed to meet those obligations. Under the authorities cited in the Summary Judgment Motion and the terms of the Indemnity Agreement, the liability of Defaulting Defendants is joint and several with each other and with Logues et al. Case 2:16-cv-00032-JNP-EJF Document 138 Filed 02/19/19 Page 4 of 6 III. IFIC IS ENTITLED TO THE SAME RELIEF AGAINST DEFAULTING DEFENDANTS AS AGAINST LOGUES ET AL. Likewise, IFIC is entitled to the same relief against Defaulting Defendants as it is against Logues et al.: a money judgment and a lien on all real and personal property of Defaulting Defendants, as set forth in the Memorandum Decision and Order (Document 136) on IFIC’s Motion for Partial Summary Judgment. The money judgment is for $1,320,176.66, together with post-judgment interest thereon pursuant to 28 U.S.C.§ 1961, for IFIC’s losses and expenses on the Bonds incurred through January 22, 2019; and the lien is to secure IFIC for losses and expenses on the Bonds incurred after that date, up to the amount of $16,300,000. IV. THE SERVICEMBERS CIVIL RELIEF ACT DOES NOT APPLY None of Defaulting Defendants is in military service. All are limited liability companies, not members of the uniformed services of the United States. They are therefore not entitled to protection under the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3911, 3931. CONCLUSION IFIC satisfies the requirements of Rule 55(b)(2) and is entitled to a default judgment against Defaulting Defendants in the form of Default Judgment filed herewith. Dated this 19th day of February 2019. FETZER SIMONSEN BOOTH & JENKINS, P. C. /s/ Clark B. Fetzer Case 2:16-cv-00032-JNP-EJF Document 138 Filed 02/19/19 Page 5 of 6 CERTIFICATE OF SERVICE I certify that on this 19th day of February 2019, a true and correct copy of the foregoing was filed through the Court’s ECF electronic filing system and notice was provided to the following counsel of record: • Aaron T. Brogdon aaron.brogdon@squirepb.com, karen.cornell@squirepb.com • Monica S. Call mscall@stoel.com,slcdocket@stoel.com, sakamaya@stoel.com • Clark B Fetzer clark@mountainwestlaw.com, lisa@mountainwestlaw.com, bryan@mountainwestlaw.com • Brent O. Hatch bhatch@hjdlaw.com, brenthatch@gmail.com, administrator@hjdlaw.com • Justin D. Hatch jdhatchlegalsolutions@gmail.com • Karoline E. Jackson karoline.jackson@btlaw.com, crystal.hansen@btlaw.com, brenda.fowle@btlaw.com • Beau J. Olsen beau@olsenfamilylaw.net • Mitchell J. Olsen , Jr mitch@olsenfamilylaw.net, kristal@olsenfamilylaw.net • Phillip J. Russell prussell@hjdlaw.com, phillipjrussell@gmail.com, administrator@hjdlaw.com I also hereby certify that on this 19th day of February 2019, a true and correct copy of the foregoing was mailed to the following: Benjamin Logue 313 MERRYWEATHER SALT LAKE CITY, UT 84108 Lisa Marie Swasey Logue 313 MERRYWEATHER SALT LAKE CITY, UT 84108 /s/ Lisa A. Hilden Legal Assistant Case 2:16-cv-00032-JNP-EJF Document 138 Filed 02/19/19 Page 6 of 6
