United States District Court, S.D. Ohio, Eastern Division
Vascura, Magistrate Judge.
OPINION & ORDER
ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' Motion for
Default Judgment. (ECF No. 10). Plaintiffs Ohio Central
Railroad, Inc. (“OHRC”) and Indiana & Ohio
Railway Co. (“IORY”) have successfully applied to
the Clerk for Entry of Default as to Defendant, and the Clerk
has so entered. (ECF Nos. 8-9). Plaintiffs now request this
Court enter an order of default judgment and award damages.
Rule of Civil Procedure 55(a) provides that 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.” Fed.R.Civ.P. 55(a). To
obtain a default judgment under Rule 55(b), there must first
be an entry of default under 55(a) with the Clerk. See
Shepard Claims Serv. Inc. v. William Darrah &
Assoc., 796 F.2d 190, 193 (6th Cir. 1986) (stating
“entry of default is . . . the first procedural step on
the road to obtaining a default judgment.”). Rule
12(a)(1)(A)(i) states that a defendant “must serve an
answer within 21 days after being served with a
complaint.” Fed.R.Civ.P. 12(a).
court's determination of damages in a default judgment
depends on whether the damages are calculable and/or
liquidated. If the damages are calculable or liquidated, then
the court will award the calculable damages to the plaintiff
without an evidentiary hearing because the facts establishing
the damage are not distinct from the facts establishing
liability. See United States v. Di Mucci, 879 F.2d
1488, 1497-98 (7th Cir. 1989) (stating that an evidentiary
hearing is not required if the damages are liquidated or can
be definitively calculated from evidence and that in such
cases the same facts establish the need for liability as well
as damages); Barnes v. Abraham, Inc., No.
2:17-CV-279, 2017 WL 5714091 at *2 (S.D. Ohio Nov. 28, 2017)
(quoting United States v. Parker-Billingsley, No.
3:14-CV-307, 2015 WL 4539843, at *1 (S.D. Ohio Feb. 10,
2015)) (“A court may determine damages without holding
an evidentiary hearing if the damages are ‘capable of
ascertainment from definite figures contained in the
documentary evidence or in detailed affidavits.'”).
However, if the damages are unliquidated, the default
judgment establishes only that the defendant is liable and
the plaintiff must prove damages. See Antoine v. Atlas
Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (quoting
Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1026 (5th
Cir. 1982)) (citing Kelley v. Carr, 567 F.Supp. 831,
841 (W.D. Mich. 1983)). Typically, such cases will
necessitate the court holding an evidentiary hearing where
the court can evaluate the plaintiff's claims for damages
and the defendant can respond to such claims before the court
makes its determination. See Id. at 110-11 (citing
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 158 (2d. Cir. 1992).
filed a complaint against Defendant on October 11, 2018 for
breach of express warranty, breach of contract, breach of
implied warranty of fitness for particular purpose, statutory
and common law breach of implied warranty of habitability,
negligence, negligent misrepresentation, unjust enrichment,
and declaratory judgment. (ECF No. 1). As part of their
complaint, Plaintiffs sent Defendant a request to waive
service of a summons but Defendant never waived.
(Id. at 68). A summons was issued on October 12,
2018 and sent via Certified Mail to Defendant on November 16,
2018. (ECF Nos. 5-6). The summons was served on Defendant on
November 20, 2018 (ECF No. 7) and thus Defendant's reply
to Plaintiffs' complaint was due on December 11, 2018,
twenty-one days after service. Fed.R.Civ.P. 12. Defendant
never replied. (ECF No. 8). On February 5, 2019, Plaintiffs
applied for an entry of default and default was entered on
February 6, 2019. (ECF Nos. 8-9). Plaintiffs then moved for
default judgment and damages on February 14, 2019. (ECF No.
have provided evidence establishing the calculability of
their damages and thus this Court can determine the
appropriate amount of damages without an evidentiary hearing.
OHCR is entitled to $145, 200 in damages. After Macton sent
OHCR a proposal on November 3, 2016, OHCR purchased the jacks
for a total of $141, 000. (Gibson Aff. ¶¶ 4-5, ECF
No. 10). They also paid Macton $4, 000 for start-up and
training assistance, bringing the total paid to Macton up to
$145, 000. (Id. at ¶ 5). This amount was paid
in three installments. First, OHCR paid $78, 692 on December
22, 2016. (Ex. A-2, ECF No. 10). Second, OHCR paid Macton
$48, 208 on April 11, 2017. (Ex. A-3, ECF No. 10). Finally,
OHCR paid the remaining $18, 100 on June 6, 2017 for a total
of $145, 000. (Collier Aff. ¶ 6, ECF No. 10; Ex. A-4,
ECF No. 10). OHCR returned these jacks to Macton, but Macton
never refunded the purchase. (Collier Aff. ¶¶ 7-8,
ECF No. 10). Further, OHCR is entitled to $200 in filing fees
paid to pursue this suit. (Evans Aff. ¶ 10, ECF No. 10).
entitled to $127, 100 in damages. After Macton sent a
proposal on February 3, 2017, IORY agreed to purchase four
jacks for a total of $141, 000. (Gibson Aff. ¶¶
4-5, ECF No. 10.) IORY made two of three scheduled payments
on this purchase. (Id. at ¶ 6). First, on March
21, 2017, IORY paid Macton $70, 500. (Ex. B-2, ECF No. 10).
IORY made the second payment of $56, 400 on July 6, 2017.
(Ex. B-3, ECF No. 10). Thus, IORY paid Macton a total of
$126, 900. (Gibson Aff. ¶ 6, ECF No. 10). IORY returned
the jacks to Macton but never received any refund.
(Id. at ¶¶ 7-8). Also, IORY incurred $200
in filing fees to pursue this claim against Macton. (Evans
Aff. ¶ 10, ECF No. 10).
Defendant has failed to respond to the Complaint and
Plaintiffs have properly applied for default, and the clerk
has so entered, this Court GRANTS
Plaintiffs' Motion for Default Judgment. Further, because
Plaintiffs have provided ample evidence of the calculable
damages incurred, this Court AWARDS $145,
200 in damages to Ohio Central Railroad, Inc. and $127, 100
to Indiana & Ohio Railway Co.