United States District Court, S.D. Ohio, Eastern Division
Deavers, Magistrate Judge
OPINION & ORDER
ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Renewed
Motion for Default Judgment. (ECF No. 24). Plaintiff Rocky
Fork Co. (“Rocky Fork”) has successfully applied
to the Clerk for Entry of Default as to Defendant Wesex Corp.
(“Wesex”), and the Clerk has so entered. (ECF
Nos. 21-22). Plaintiff now requests 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).
Rocky Fork filed a complaint in state court against Defendant
Wesex on October 4, 2018 for Breach of Contract and against
Wesex and another defendant for Unjust Enrichment. (ECF No.
3). The other defendant for the Unjust Enrichment claim had
the case removed to this Court. (ECF No. 1). This Renewed
Motion for Default Judgment only concerns the Breach of
Contract claim. (ECF No. 23 at 1). In response to a November
2, 2018 order from this Court to file a status report proving
Rocky Fork had effected service of process on Wesex,
Plaintiff sent a copy of the Summons and Complaint to
Wesex's addresses in Ohio and Pennsylvania on November 9,
2018. (ECF No. 16). These were served on both addresses on
November 13, 2018 (ECF No. 17) and thus Wesex's reply to
the Complaint was due on December 4, 2018, twenty-one days
after service. Fed.R.Civ.P. 12. Wesex did not timely reply;
two weeks after the deadline, on December 18, 2019, this
Court issued an Order to Show Cause for Rocky Fork to prove
to the Court why the claims should not be dismissed for want
of prosecution within fourteen days of the order being
issued. (ECF No. 18). On December 21, 2018, Rocky Fork moved
for Default Judgment. (ECF No. 19). However, the Court denied
the order because Rocky Fork did not properly apply for and
the clerk did not enter default. (ECF No. 20). Rocky Fork
applied for an entry of default and default was entered on
January 17, 2019. (ECF Nos. 21-22). Rocky Fork then renewed
the motion for Default Judgment and Damages that same day.
(ECF No. 23).
Fork has provided evidence establishing the calculability of
its damages and thus this Court can determine the appropriate
amount of damages without an evidentiary hearing.
Fork is entitled to $78, 085.61 in damages. Rocky Fork was a
subcontractor for Wesex, providing landscaping services,
brick pavers, and fencing to one of Wesex's projects and
their relationship was governed by a Subcontracting Agreement
(“the Subcontract”). (ECF No. 23 at 4). On June
20, 2017, Rocky Fork provided Wesex with $3, 600 worth of
edging materials. (Id. at 34). In violation of the
Subcontract, Wesex has not paid Rocky Fork the $3, 600.
(Id. at 4). Rocky Fork also performed paving,
landscaping, and fence installation and billed Wesex $39,
899.31 on July 20, 2017. (Id. at 35). Wesex, again,
did not pay Rocky Fork. (Id.at 4). Wesex further
requested Rocky Fork install landscaping and fencing
materials for the same project and Wesex billed them for $29,
495.90 on August 22, 2017 after the work was performed.
(Id. at 36).
has also refused to pay for these services. (Id. at
4). Lastly, Wesex has also refused to pay $5, 126.40 Rocky
Fork charged them on September 20, 2017 for further
landscaping services. (Id. at 4, 37). These unpaid
charges for services total $78, 085.61 in damages.
Defendant Wesex has failed to respond to the Complaint and
Plaintiff Rocky Fork has properly applied for default, and
the clerk has so entered, this Court GRANTS
Plaintiff's Renewed Motion for Default Judgment. Further,
because Plaintiff has provided ample evidence of the
calculable damages incurred, this Court
AWARDS $78, 085.61 in damages to Rocky Fork