United States District Court, W.D. Oklahoma
ROLAND TABB, individually and on behalf of others similarly situated, Plaintiffs,
MENTOR PROTECTION SERVICE LLC and MARIO GOGGINS, Defendants.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion for
Entry of Final Default Judgment [Doc. No. 7]. On February 7,
2018, the Court Clerk entered default against Defendants
Mentor Protection Service LLC and Mario Goggins [Doc. No. 6],
and Defendants have not responded to the present motion. For
the reasons stated below, the Court finds Plaintiffs'
motion should be granted.
Roland Tabb brought this putative collective action on behalf
of himself and a class to recover unpaid overtime wages and
other damages under the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (“FLSA” or
“the Act”). Defendants were served with the
Summons and Complaint on October 20, 2017 [Doc. No. 4]. To
date, neither defendant has answered nor otherwise responded
to the Complaint. On February 7, 2018, the Court Clerk
entered default against Defendants for failing to plead or
otherwise defend the present action [Doc. No. 6].
Accordingly, pursuant to Rule 55(b)(2) of the Federal Rules
of Civil Procedure, Plaintiff, individually, moves for an
entry of default judgment consisting of statutory and
liquidated damages totaling $20, 448.00, post judgment
interest in the amount of $345.57, attorney's fees in the
amount of $2, 425.00 and $1, 681.49 in costs.
entry of default judgment is committed to the sound
discretion of the Court. Tripodi v. Welch, 810 F.3d
761, 764 (10th Cir. 2016). The Court may consider a variety
of factors in the exercise of such discretion, including:
(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; (3) the
culpability of the litigant; (4) whether the court warned the
party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992) (internal citations omitted). Default judgments are
generally disfavored in light of the policy that cases should
be tried upon their merits whenever reasonably possible.
In re Rains, 946 F.2d 731, 732 (10th Cir. 1991).
Nonetheless, default judgment is viewed as a reasonable
remedy when the adversary process has been halted because of
an essentially unresponsive party. Id.
defendant fails to answer or otherwise defend against an
action, Rule 55 of the Federal Rules of Civil Procedure
provides two distinct sequential steps: the entry of default
and the entry of default judgment. See Fed. R. Civ.
P. 55(a), (b); Guttman v. Silverberg, 167 Fed.Appx.
1, 2 n. 1 (10th Cir. 2005) (unpublished) (“The entry of
default and the entry of a judgment by default are two
separate procedures.”). Initially, a party must ask the
Clerk of the Court to enter default. Fed.R.Civ.P. 55(a). Only
when the Clerk has complied may a party seek default
judgment. Garrett v. Seymour, 217 Fed.Appx. 835, 838
(10th Cir. 2007) (unpublished) (holding that entry of default
is a prerequisite for the entry of a default judgment under
Rule 55(b)(1)). The procedural requirements for grant of
default judgment by the Court is that the application be
accompanied by an affidavit in compliance with LCvR 55.1,
which states “[n]o application for a default judgment
shall be entertained absent an affidavit in compliance with
the Servicemembers Civil Relief Act, [50 U.S.C. §
3931].” To this end, it is undisputed Defendant has
failed to answer or plead, default was entered by the Clerk,
and Plaintiff has satisfied the Court's procedural
requirements. See Pl.'s Mot. for Default
Judgment and supporting Affidavit [Doc. Nos. 5, 5.1].
entry of default, the Court takes all the well-pleaded facts
in a complaint as true. See Tripodi v. Welch, 810
F.3d 761, 765 (10th Cir. 2016) (noting that after default is
entered, “a defendant admits to a complaint's
well-pleaded facts and forfeits his or her ability to contest
those facts.”) (citation omitted); United States v.
Craighead, 176 Fed.Appx. 922, 924 (10th Cir. 2006)
(“The defendant, by his default, admits the
plaintiff's well-pleaded allegations of fact, is
concluded on those facts by the judgment, and is barred from
contesting on appeal the facts thus established.”)
(unpublished, citation omitted). However, the Court need not
accept the moving party's legal conclusions or factual
allegations relating to the amount of damages sought.
before granting a default judgment, the Court must first
ascertain whether the uncontested facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law. See, e.g., Mathiason v.
Aquinas Home Health Care, Inc., 187 F.Supp.3d 1269,
1274-75 (D. Kan. 2016) (“Even after default, it remains
for the court to consider whether the unchallenged facts
constitute a legitimate basis for the entry of a judgment
since a party in default does not admit conclusions of law.
Furthermore, a default judgment does not establish the amount
of damages. Plaintiff must establish that the amount
requested is reasonable under the circumstances.”)
(internal citations omitted); Gunawan v. Sake Sushi
Restaurant, 897 F.Supp.2d 76, 83 (E.D.N.Y. 2012)
(“[A] default does not establish conclusory
allegations, nor does it excuse any defects in the
plaintiff's pleading. Thus, with respect to liability, a
defendant's default does no more than concede the
complaint's factual allegations; it remains the
plaintiff's burden to demonstrate that those
uncontroverted allegations, without more, establish the
defendant's liability on each asserted cause of
action.”) (citations omitted).
[a] defendant does not contest the amount prayed for in the
complaint [by failing to answer] and the claim is for a sum
certain or a sum that can be made certain by computation, the
judgment generally will be entered for that amount without
any further hearing.” Craighead, 176 Fed.Appx.
at 925 (citation omitted); H.B. Hunt v. Inter-Globe
Energy, Inc., 770 F.2d 145, 148 (10th Cir. 1985)
(“[A] court may enter a default judgment without a
hearing only if the amount claimed is a ...