United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs Renewed Motion for
Default against Defendant Andre's Remediation and
Restoration, LLC ('Andre's Remediation") (ECF
No. 12). The record shows that Defendant Andre's
Remediation was served with the summons and Complaint on
February 8, 2016, and has not filed an answer or other
responsive pleading. Defendant Andre D. Cole, Sr.,
("Cole") acting pro se, filed an answer on
February 18, 2016. Plaintiff filed a Motion for Default
against Defendant Andre's Remediation on April 4, 2016.
In response, Defendant Cole filed an opposition to the motion
on behalf of himself and Andre's Remediation and
requested time to seek legal counsel. The Clerk of the Court
entered a Clerk's Entry of Default on April 11, 2016.
Plaintiff then filed the Renewed Motion for Default against
Defendant Andre's Remediation on May 25, 2016. Plaintiff
also requested a hearing on the amount of damages. Defendant
Andre's Remediation did not file a response to the
renewed motion for default, nor did an attorney enter an
appearance on behalf of Defendant company.
13, 2016, the Court held a hearing on the motion for default,
during which time Defendant Cole indicated that he understood
Andre's Remediation could not represent itself and that
he planned to obtain counsel. Plaintiff also submitted
affidavits to the Court on the issue of damages in support of
its default motion. The Court continued the hearing to allow
Andre's Remediation to find legal representation, and on
July 27, 2016, Defendant Cole failed to show and failed to
respond to the clerk's attempts to contact him
telephonically. Counsel for Plaintiff notified the Court that
the damage amounts stated in the affidavits were true and
correct, and the Court took the motion for default judgment
under submission. On August 22, 2016, this Court issued an
Order to Show Cause, by September 6, 2016, why the Court
should not enter default judgment against Defendant
Andre's Remediation for failure to answer or obtain
counsel. (ECF No. 22) Defendant did not respond or otherwise
comply with the show cause order.
Rule 55 of the Federal Rules of Civil Procedure, a court may
enter default judgment for failure "to plead or
otherwise defend." Fed.R.Civ.P. 55(a). "Default
judgment for failure to defend is appropriate when the
party's conduct includes 'willful violation of court
rules, contumacious conduct, or intentional
delays.'" Ackra Direct Marketing Corp. v.
Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996)
(quoting United States v. Harre, 983 F.2d 128, 130
(8th Cir. 1993)). Default judgments are disfavored under the
law. Harre, 983 F.2d at 130. However, "entry of
default judgment... is an appropriate exercise of a
court's discretion for a party's repeated failure to
comply with court orders due to willfulness or bad
faith." Monsanto Co. v. Hargrove, No.
4:09-CV-1628 (CEJ), 2011 WL 93718, at *2 (E.D. Mo. Jan. 11,
2011) (citation omitted).
a default judgment is entered, facts alleged in the complaint
may not be later contested." Marshall v.
Baggett, 616 F.3d 849, 852 (8th Cir. 2010). However,
"'it remains for the [district] court to consider
whether the unchallenged facts constitute a legitimate cause
of action, since a party in default does not admit mere
conclusions of law.'" Murray v. Lene, 595
F.3d 868, 871 (8th Cir. 2010) (quoting 10A C. Wright, A.
Miller & M. Kane, Federal Practice and Procedure §
2688 at 63 (3d ed. 1998)). Further, "[a] party seeking
damages under a default judgment must. . . prove its rights
to such damages with affidavits or other supporting
documentation." Joe Hand Promotions, Inc. v. Kickers
Corner of the Americas, Inc., No. 4:12CV02387 AGF, 2014
WL 805731, at *2 (E.D. Mo. Feb. 28, 2014) (citations
the allegations in the Complaint as true, Plaintiff has
established that Defendant Cole owned Andre's
Remediation, which was a direct competitor with Plaintiff in
the same market. (Compl. ¶ 12, ECF No. 1) Further,
Andre's Remediation accessed Plaintiffs computers without
authorization and tampered with Plaintiffs computer data and
equipment. (Compl. ¶¶ 19-29) In addition,
Andre's Remediation interfered with Plaintiffs contracts,
business relationships, and business expectancies with
customers, as well as interfered with Plaintiffs employment
relationship with Defendant Cole. (Compl. ¶¶ 35-43)
Affidavit submitted by Susan Seubert, the Secretary of
Plaintiff Pride Cleaining and Restoration, Inc., Ms. Seubert
avers that the Plaintiffs current damage claim against
Andre's Remediation is $48, 234.02, which comprises the
costs for Cole's certification, net profit on five lost
projects, the value of Plaintiffs lap top and other property,
attorney's fees, and liquidated damages. Plaintiff also
seeks reimbursement of court costs. (Seubert Aff ¶ 3,
ECF No. 17) Additionally, counsel for Plaintiff filed an
affidavit verifying the amount of requested statutory
attorney's fees and costs under one of the counts.
(Cavanaugh Aff. ¶ 4, ECF No. 18)
Plaintiff seeks a default judgment awarding damages of $1,
042 for Cole's mold remediation certification; $21,
247.89 in damages for five lost projects performed by
Defendant Andre's Remediation while Cole was still
employed by Plaintiff; attorney's fees of $1, 576.12
under Mo. Rev. Stat. § 537.525.2; $250 for the laptop
computer; and $24, 117.01 in liquidated damages for
Andre's Remediation's appropriation of confidential
Andre's Remediation has failed to dispute the allegations
in the Complaint or the amount of damages requested by
Plaintiff, despite numerous opportunities to do so. Further,
Defendant Andre's Remediation has willfully failed to
comply with several orders of this Corut. The Court therefore
finds that default judgment against Defendant Andre's
Remediation is appropriate for failure to defend.
Ackra, 86 F.3d at 857; see also Forsythe v.
Hales, 255 F.3d 487, 491 (8th Cir. 2001) (affirming
grant of default judgment where defendants were unable to
show cause why default judgment should not be granted).
Further, the Affidavits presented to this Court are
sufficient to prove the amount of $24, 117.01 for actual
damages sustained by Plaintiff. However, the Court finds that
Plaintiff has failed to provide sufficient justification for
liquidated damages in the same amount of Plaintiff s actual
damages, especially in light of the fact that the case
remains pending against individual Defendant Cole. The Court
will therefore grant the motion for default judgment and
enter damages in the amount of $24, 117.01 for actual damages
only, plus $480 in court costs.
IT IS HEREBY ORDERED that Plaintiffs Renewed Motion for
Default against Defendant Andre's Remediation and
Restoration, LLC (ECF No. 12) is GRANTED.
FURTHER ORDERED that Plaintiffs Motion for Default against
Defendant Andre's Remediation and Restoration, LLC (ECF
No. 7) is DENIED as MOOT.
FURTHER ORDERED that Plaintiff is entitled to damages in the
amount of $24, 597.01, representing $24, 117.01 in actual
damages and $480 in court costs. A separate judgment in
accordance with this Memorandum and Order will ...