United States District Court, S.D. Ohio, Western Division
ORDER DENYING PLAINTIFF BRIAN METHE'S MOTION FOR
DEFAULT JUDGMENT AGAINST DEFENDANTS WEBINTELLICS, INC. AND
RIPT APPAREL, LLC WITHOUT PREJUDICE (Doc. 36)
Timothy S. Black United States District Judge
case is before the Court on Plaintiff Brian Methe's
(“Plaintiff”) motion for default judgment against
Defendants Webintellics, Inc. and RIPT Apparel, LLC
(collectively the “Defaulting Defendants”). (Doc.
November 7, 2017, Plaintiff filed suit against the Defaulting
Defendants, as well as other defendants, for copyright
infringement. (Doc. 1). Subsequently, Plaintiff served the
Defaulting Defendants with a copy of the Complaint. (Docs.
30, 35, 36-1). Neither of the Defaulting Defendants timely
answered. (See Doc. 36-1 at ¶¶ 2-4). On
September 5, 2018, Plaintiff filed a motion for default
judgment against the Defaulting Defendants. (Doc. 36). One
day later, Plaintiff filed an application for entry of
default. (Doc. 37). On September 10, 2018, the Clerk issued
an entry of default, confirming that the Defaulting
Defendants were “in default.” (Doc. 38).
motion for default judgment consists of a single paragraph:
Pursuant to Fed.R.Civ.P. 55, [Plaintiff] moves the Court to
enter the attached Default Judgments against [the Defaulting
Defendants] for failure to plead or otherwise defend this
case. The claims asserted in this matter do not involve a sum
certain, therefore Plaintiff further requests a hearing to
determine the amount of damages owed by the defaulting
parties. In support of this Motion, Plaintiff tenders the
Affidavit of Counsel attached as Exhibit A.
(Doc. 36). The Affidavit of Counsel contains: (1) information
about the Defaulting Defendants' service, and (2) a
request for an evidentiary hearing. (Doc. 36-1).
governs Plaintiff's motion for default judgment. Where,
as here, a case does not involve a sum certain, Rule 55 sets
out a two-step process. First, the Clerk must issue an entry
of default under Rule 55(a). Second, the plaintiff must file
a motion for a default judgment under Rule 55(b)(2). After
the Clerk's entry of default and the plaintiff's
motion for default judgment, the Court considers whether a
default judgment is proper. When doing so, the Court takes
all of the factual allegations in the complaint as
true. Ohio Nat'l Life, Assurance Corp.
v. Crescent Fin. & Ins. Agency, Inc., No.
1:15-CV-727, 2016 WL 8199123, at *1 (S.D. Ohio June 20,
entry of default does not automatically entitle the plaintiff
to a default judgment. See F.C. Franchising
Sys., Inc. v. Schweizer, No. 1:11-CV-740, 2012 WL
1945068, at *3 (S.D. Ohio May 30, 2012). The plaintiff
must still show that, when all of the factual
allegations in the complaint are taken as true, the defendant
is liable for the claim(s) asserted. Said
v. SBS Elecs., Inc., No. 1:08-CV-3067, 2010 WL 1265186,
at *2 (E.D.N.Y. Feb. 24, 2010) (It “remains the
plaintiff's burden to demonstrate that” the
complaint's factual allegations, taken as true,
“establish the defendant's liability.”),
adopted as modified, No. 1:08-CV-3067, 2010 WL
1287080 (E.D.N.Y. Mar. 31, 2010).
considering whether a default judgment is proper, courts:
[T]ake into account: (1) possible prejudice to the plaintiff;
(2) the merits of the claims; (3) the sufficiency of the
complaint; (4) the amount of money at stake; (5) possible
disputed material facts; (6) whether the default was due to
excusable neglect; and (7) the preference for decisions on
Russell v. City of Farmington Hills, 34 Fed.Appx.
196, 198 (6th Cir. 2002).