United States District Court, S.D. Ohio
MICHAEL H. WATSON, JUDGE
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Summary Judgment as to damages as supplemented (Docs. 127,
132). By Order dated August 14, 2017 (Doc. 118), this Motion
was referred to the undersigned Magistrate Judge for the
issuance of a Report and Recommendation. For the following
reasons, it is RECOMMENDED that
Plaintiff's Motion be GRANTED IN PART
and DENIED IN PART.
Renewable Energy Equipment Leasing, LLC (“REEL”)
filed this action against Team Gemini, LLC (“Team
Gemini”) on December 19, 2014, asserting claims for
breach of contract, promissory estoppel, quantum meruit, and
declaratory judgment. (Doc. 1). On August 3, 2015, REEL
amended its Complaint to add Gemini Holding I, LLC
(“Gemini Holdings”) and Team Gemini Project
Cardinal (“TGPC”) as defendants. (Doc. 27).
events giving rise to the current Motion are set forth in
Judge Watson's August 14, 2017 Order (Doc. 118), and will
not be repeated in detail here. Briefly, however, Defendants
Team Gemini and TGPC failed to object to an earlier Report
and Recommendation (Doc. 109) recommending that the Court
enter default judgment against them and Gemini Holdings for
numerous failures to respond to Court Orders. Consequently,
Judge Watson adopted the Report and Recommendation and
referred the matter of damages to the undersigned. Following
a status conference at which neither Team Gemini nor TGPC
appeared, the undersigned ordered summary judgment motions to
be filed on the issue of damages (Doc. 123). By Opinion and
Order dated November 9, 2017, the Court dismissed with
prejudice REEL's claim against Gemini Holdings (Doc.
filed its Motion for Summary Judgment on November 20, 2017,
and, as directed by the Court, supplemented the motion on
January 12, 2018. Neither Team Gemini nor TGPC filed a
response or a motion for summary judgment. The Court's
mailings to Team Gemini have been returned as undeliverable.
(See, e.g., Docs. 120, 126, 128, and 131).
defendant is in default, the well-pleaded allegations of the
complaint as to liability, but not damages, must be taken as
true. United States v. Conces, 507 F.3d 1028, 1038
(6th Cir. 2007). Rule 55(b)(2) governs all cases in which a
court enters a default judgment. Zuffa, L.L.C. v.
Holtsberry, No. 3:12-cv-1191, 2013 WL 183861, at *2
(N.D. Ohio Jan. 17, 2013). If a plaintiff's claim on
which default is entered is not for a sum certain or a sum
that can be made certain by computation, an evidentiary
hearing generally is required. Fed.R.Civ.P. 55(b)(2).
However, an evidentiary hearing is not required
“‘if sufficient evidence is submitted to support
the request for damages or if the amount claimed is one
capable of ascertainment from definite figures in the
documentary evidence or affidavits.'” Ayers v.
Receivables Performance Mgmt., LLC, No. 2:15-cv-12082,
2016 WL 5402962, at *3 (E.D. Mich. Sept. 28, 2016) (quoting
Joe Hand Promotions, Inc. v. Yakubets, 3 F.Supp.3d
261, 271, n.8 (E.D. Pa. 2014)); see also Servpro Indus.,
Inc. v. Santoro & Sons Enter., Inc., No.
3:15-cv-00608, 2017 WL 1331434, at *1 (M.D. Tenn. Apr. 11,
2017) (hearing not required if moving party submits
uncontested, sworn affidavits sufficient to establish damages
relevant here, summary judgment is appropriate when
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). The party seeking summary
judgment bears the initial “responsibility of informing
the district court of the basis for its motion, and
identifying those portions” of the record that
demonstrate “the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The burden then shifts to the nonmoving party to
“set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986).
“‘Rule 56 does not allow district courts to
automatically grant summary judgment on a claim simply
because the summary judgment motion … is
unopposed.'” J&J Sports Prod.,
Inc. v. Tonita Rest., LLC, No.
5:13-CV-382-REW, 2015 WL 9462975, n.5 (E.D. Ky., Dec. 28,
2015) (quoting Jackson v. Fed. Express, 766 F.3d
189, 194 (2d Cir. 2014)). Rather, the court is still required
to “‘ensure that each statement of material fact
is supported by record evidence sufficient to satisfy the
movant's burden of production even if the statement is
unopposed….'” Id. The court,
however, “is not required to conduct its own probing
investigation of the record to discover an issue of material
fact when a summary judgment motion is unopposed.”
Metropolitan Life Ins. Co. v. Darkow, No.
5:09CV02482, 2010 WL 3002032, at *3 (N.D. Ohio July 30, 2010)
(citing Guarino v. Brookfield Twp. Tr., 980 F.2d
399, 407 (6th Cir. 1992)). At the same time, the court must
“‘carefully review the legitimacy of such an
unresponded-to motion, even as it refrains from actively
pursuing advocacy … for a silent party.'”
following information is taken from REEL's Amended
Complaint with attached exhibits (Doc. 27), the affidavit of
REEL's sole member and manager, Peter Micciche, submitted
in support of the Summary Judgment Motion (Doc. 127-1), and
the documents attached to REEL's supplement to its
summary judgment motion. (Doc. 132).
time the Amended Complaint was filed, Team Gemini was a
sustainable project design and development company, with an
ownership interest in a variety of projects in the United
States and other countries, with an emphasis on renewable
energy. (Doc. 27, ¶ 6). Team Gemini was the sole member
of TGPC. (Id. at ¶ 7). TGPC was in contract
with the Solid Waste Authority of Central Ohio
(“SWACO”) to build a recycling center referred to
as “COR3 ...