United States District Court, D. Maine
ORDER DISMISSING MOTION FOR DEFAULT JUDGMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
19, 2016, Dogbar Fishing Charters, Inc., filed a complaint in
this Court against Wesley D. Lash, d/b/a Lash Brothers
Boatyard, alleging that Mr. Lash breached their contract to
fabricate and finish a 38 foot Flowers fishing vessel and
engaged in fraud by converting to his personal use monies
that Dogbar paid to Mr. Lash for work on the vessel.
Compl. (ECF No. 1). The summons was served on Mr.
Lash on July 25, 2016, and filed with this Court on July 29,
2016. Summons in a Civil Action (ECF No. 8). On
August 16, 2016, Dogbar moved for entry of default, and on
August 17, 2016, the Clerk of Court entered default against
Mr. Lash. Pl.'s Mot. for Default Pursuant to
F.R.C.P. 55(a) (ECF No. 9); Order Granting Mot. for Entry
of Default (ECF No. 10).
successfully obtained an attachment on the real property on
which Mr. Lash operates his business on August 18, 2016,
Order on Mot. for Attach. (ECF No. 11), Dogbar now
moves for a default judgment in the amount of $160, 000.00
together with allowable costs. Pl.'s Mot. for Default
J. Pursuant to F.R.C.P. 55(b)(1) (ECF No. 13).
motion for default judgment is based on a number of
misconceptions. First, Dogbar misunderstands the term
“sum certain” as used in Rule 55(b)(1).
Fed.R.Civ.P. 55(b)(1). Dogbar contends that the affidavit
that it submitted in support of its motion for attachment is
for a “sum certain” and therefore it is entitled
to judgment in that amount. It is wrong. The term “sum
certain” refers to a claim where “there is no
doubt as to the amount to which a plaintiff is entitled as a
result of the defendant's default.” KPS &
Assocs. v. Designs by FMC, Inc., 318 F.3d 1, 19 (1st
Cir. 2003). Examples of a “sum certain” include
“actions on money judgments, negotiable instruments, or
similar actions where the damages sought can be determined
without resort to extrinsic proof.” Id. at
19-20 (quoting Interstate Food Processing Corp. v.
Pellerito Foods, Inc., 622 A.2d 1189, 1193 (Me. 1993)).
Here, the amount of Dogbar's damage depends upon
extrinsic proof and is not for a sum certain under Rule
second misconception is which section of Rule 55(b) applies.
If, as Dogbar erroneously asserts, the claim is for a sum
certain, Rule 55(b)(1) allows the clerk to enter judgment in
favor of the plaintiff. If the claim is not for a sum
certain, Rule 55(b)(2) applies. Here, Dogbar is asking for
default judgment under Rule 55(b)(1), when it should be
asking for default judgment pursuant to Rule 55(b)(2).
theoretically a plaintiff could seek a judicial order of
default for a sum certain, Dogbar has failed to comply with
the requirements for a default judgment under Rule 55(b)(2).
Dogbar failed to address the “has appeared” issue
under Key Bank of Maine v. Tablecloth Textile Co.
Corp., 74 F.3d 349, 353 (1st Cir. 1996) (“[A]
defaulting party ‘has appeared' for Rule 55
purposes if it has ‘indicated to the moving party a
clear purpose to defend the suit'”) (quoting
Muniz v. Vidal, 739 F.2d 699, 700 (1st Cir. 1984)).
See Katahdin Paper Co. v. U&R Sys., Inc., 231
F.R.D. 110, 112-13 (D. Me. 2005); United States v. Spring
House Assocs., No. 1:15-cv-00057-JAW, 2015 U.S. Dist.
LEXIS 107053, at *6 (D. Me. Aug. 14, 2015) (“Before
issuing a default judgment, the Court will require the United
States to demonstrate compliance with Key
has also failed to comply with the requirements of the
Servicemembers Civil Relief Act of 2003, 50 U.S.C. app.
§ 521 (current version at 50 U.S.C. § 3931). The
Act requires a plaintiff to file an affidavit stating whether
the defendant is in the military service before the court can
enter a default judgment. 50 U.S.C. §§ 3931(a),
(b). Although there is no reason to think that Mr. Lash is
protected by the terms of the Act, the law still requires an
affidavit from the movant establishing that the Act does not
apply. See, e.g., United States v.
Veilleux, No. 04-223-P-C, 2005 U.S. Dist. LEXIS 33219,
at *7 (D. Me. Dec. 13, 2005); Coss v. Clemente, No.
3:10-1479, 2011 U.S. Dist. LEXIS 71891, at *3 (M.D. Pa. June
9, 2011) (“The [Servicemembers Civil Relief] Act is
clear that an affidavit is a mandatory precondition to any
default judgment, even if the requirements of Rule 55 for
default judgment are otherwise met”) (citations
omitted); Nationwide Prop. & Cas. Ins. Co. v.
Janis, No. 1:08-cv-00153, 2008 U.S. Dist. LEXIS 52998,
at *6 (M.D. Pa. July 11, 2008) (“[T]he Court does not
have the power to excuse the lack of an affidavit concerning
Janis' alleged default”).
Dogbar should not assume that the contents of the Complaint,
its attachment, and the contents of its motion for attachment
and its attachments, are sufficient to enter judgment in the
amount of $160, 000 against Mr. Lash. KPS, 318 F.3d
at 19 (“While the District Court may not have been
obligated to hold an evidentiary hearing, it could not just
accept [plaintiff's] statement of the damages”)
(quoting Transatl. Marine Claims Agency v. Ace Shipping
Corp., 109 F.3d 105, 111 (2d Cir. 1997)). Dogbar
attached to the Complaint a contract that establishes that
the Contractor's costs, subject to any change orders,
“shall not exceed $198, 150.” Compl.
Attach. 1 Boat Fabrication Agreement at 2 (ECF No.
1). In addition, Dogbar attached to the affidavit in support
of the motion for attachment a report from Michael L.
Collyer, a senior marine surveyor, who performed a marine
survey of the Flowers 38 lobster yacht and found that the
vessel “appears approximately 50% to 60% complete, not
considering that much of what has been done may need to be
redone.” Aff. of James N. Alvarez in Supp. of
Pl.'s Mot. for Approval of Attach. (Alvarez
Aff.) Attach. 1 Letter from Michael L. Collyer to
James Alvarez at 1 (July 14, 2016) (ECF No. 5). Mr.
Collyer lists a series of deficiencies but ascribes no
figures to correct them. Id. at 1-3. Mr. Alvarez
states that “[o]n information and belief, probable
expense for this corrective work will be in the range of
$100, 000.” Alvarez Aff. at 10. But Mr.
Alvarez does not reveal the source of his corrections
estimate and the Court has no basis to determine its
accuracy. Id. Mr. Alvarez's affidavit does
establish that Dogbar paid Mr. Lash $160, 000.00 from June 1,
2015 through June 23, 2016. Id. at 1-7.
noted, Mr. Collyer's report indicates that Mr. Lash
completed about 50% to 60% of the required work on the
vessel; there is no reason the Court should assume that all
of Mr. Lash's work on the vessel was defective. At the
very least, the Court should be satisfied that Dogbar's
$160, 000.00 damage figure represents a reasonable estimate
of the cost of the corrective work to be performed, a
reasonable estimate of the cost of the unperformed portion of
the contracted work, and a proper credit for work adequately
performed. The First Circuit has written that “[i]n
limited circumstances we have permitted district courts to
dispense with a Rule 55(b)(2) hearing, even in the face of
apparently unliquidated claims.” KPS, 318 F.3d
at 21. For example, the First Circuit observed that a
“district court, ‘intimately familiar with the
case from years of travail, ' did not abuse discretion
when it forwent hearing and calculated damages from
‘mortgage and loan agreements, certifications by the
taxing authorities, and other documents of
record.'” Id. (quoting HMG Prop.
Inv'rs, Inc. v. Parque Indus. Rio Canas, Inc., 847
F.2d 908, 919 (1st Cir. 1988)).
based on the information presented by Dogbar, the Court
remains to be convinced that Dogbar's damages demand is
not merely the say-so of the plaintiff.
Court DISMISSES without prejudice Plaintiff's Motion for
Default Judgment Pursuant to F.R.C.P. 55(b)(1) (ECF No. 13).