United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION FOR ENTRY OF DEFAULT
C. NIVISON, U.S. MAGISTRATE JUDGE
Defendant did not respond to Plaintiff's complaint in
this matter, upon Plaintiff's request, the Court entered
a default against Defendant on Plaintiff's complaint.
(Order, ECF No. 8.) Plaintiff subsequently filed a Motion for
Entry of Default Judgment. (Motion, ECF No.
Through the motion, Plaintiff asks the Court for the entry of
a judgment in the amount of $505, 354.84 in damages, charges
and interest, an award of $57, 576.50 in attorneys' fees,
and an order directing Defendant to return vehicles it leased
a review of the record and after consideration of
Plaintiff's motion, I recommend the Court grant the
motion and enter judgment against Defendant.
the entry of default against Defendant, Plaintiff's
allegations against Defendant are “taken as true and
… considered established as a matter of law.”
Libertad v. Sanchez, 215 F.3d 206, 208 (1st Cir.
2000) (quoting Brockton Sav. Bank v. Peat, Marwick,
Mitchell & Co., 771 F.2d 5, 13 (1st Cir. 1985));
see also In re Home Rests., Inc., 285 F.3d 111, 114
(1st Cir. 2002) (a party “who defaults is taken to have
conceded the truth of the factual allegations in the
complaint as establishing the grounds for liability
and Defendant entered into a Master Equity Lease Agreement
effective December 6, 2012 (the Agreement). (Complaint ¶
6, ECF No. 1.) Under the Agreement, Defendant leased
vehicles from Plaintiff. (Id. ¶ 7.) Defendant
was obligated to pay rent for the vehicles. (Id.
¶ 9.) On or about April 23, 2019, Defendant's April
rent check was returned for insufficient funds. (Id.
¶ 10.) Defendant failed to remedy the missed rent
payment within ten days, as required by the Agreement, and
thus defaulted under the terms of the Agreement.
(Id. ¶¶11, 14.) Defendant has not paid
rent on the vehicles since March 2019. (Declaration of Bryan
Jurich ¶ 9, ECF No. 10-2.)
Agreement provides that in the event of Defendant's
default, Plaintiff is entitled to terminate the Agreement and
demand the return of the vehicles. (Complaint ¶ 16.) On
May 7, 2019, Plaintiff terminated the Agreement and demanded
the return of the vehicles. (Id. ¶
Upon such demand, the terms of the Agreement required
Defendant to return the vehicles to Plaintiff immediately.
(Id. ¶ 16.) Defendant returned some of the
leased vehicles to Plaintiff; seventeen vehicles remain
unreturned. (Declaration of B. Jurich ¶ 8).
Agreement provides Plaintiff with the following remedies upon
14. DEFAULT; REMEDIES: . . . Upon the occurrence of any Event
of Default, Lessor, without notice to Lessee, will have the
right to exercise concurrently or separately (and without any
election of remedies being deemed made), the following
remedies: (a) Lessor may demand and receive immediate
possession of any or all of the Vehicles from Lessee, without
releasing Lessee from its obligations under this Agreement;
if Lessee fails to surrender possession of the Vehicles to
Lessor on default (or termination or expiration of the Term),
Lessor, Servicer, any other agent of Lessor and any of
Lessor's independent contractors shall have the right to
enter upon any premises where the Vehicles may be located and
to remove and repossess the Vehicles; (b) Lessor may enforce
performance by Lessee of its obligations under this
Agreement; (c) Lessor may recover damages and expenses
sustained by Lessor, Servicer, any other agent of Lessor or
any of their respective successors or assigns by reason of
Lessee's default including, to the extent permitted by
applicable law, all costs and expenses, including court costs
and reasonable attorneys' fees and expenses, incurred by
Lessor, Servicer, any other agent of Lessor or any of their
respective successors or assigns in attempting or effecting
enforcement of Lessor's rights under this Agreement
(whether or not litigation is commenced) and/or in connection
with bankruptcy or solvency proceedings; (d) upon written
notice to Lessee, Lessor may terminate Lessee's rights
under this Agreement; (e) with respect to each Vehicle,
Lessor may recover from Lessee all amounts owed by Lessee
under Sections 3(b) and 3(c) of this Agreement (and, if
Lessor does not recover possession of a Vehicle, (i) the
estimated wholesale value of such Vehicle for purposes of
Section 3(c) shall be deemed to be $0.00 and (ii) the
calculations described in the first two sentences of Section
3(c) shall be made without giving effect to clause (ii) in
each such sentence); and/or (f) Lessor may exercise any other
right or remedy which may be available to Lessor under the
Uniform Commercial Code, any other applicable law or in
equity. A termination of this Agreement shall occur only upon
written notice by Lessor to Lessee. Any termination shall not
affect Lessee's obligation to pay all amounts due for
periods prior to the effective date of such termination of
Lessee's obligation to pay any indemnities under this
Agreement. All remedies of Lessor under this Agreement or at
law or in equity are cumulative.
(Exhibit 1 to Complaint at 4-5, ECF No. 1-1.)
noted above, upon entry of default, the defaulted party
concedes the well-pleaded facts in the complaint. See
Quirindongo Pacheco v. Rolon Morales, 953 F.2d 15, 16
(1st Cir. 1992). Where, as here, the facts state an
actionable claim, the defendant's liability is
established at the time of default. See Hooper-Haas v.
Ziegler Holdings, LLC, 690 F.3d 34, 41 (1st Cir. 2012);
Brockton Sav. Bank v. Peat, Marwick, Mitchell &
Co., 771 F.2d 5, 13 (1st Cir. 1985). A defendant's
default, however, does not establish the amount of damages
owed to the plaintiff for purposes of default judgment.
Pursuant to Federal Rule of Civil Procedure 55(b)(2), a
plaintiff seeking default judgment “must apply to the
court” whenever the amount of damages claimed is not a
“sum certain.” “Unless a claim is for a
‘sum certain' a court must consider proof of
damages before entering final judgment.” CSXT
Intermodal, Inc. v. Mercury Cartage, LLC, 271 F.R.D.
400, 401 (D. Me. 2010).
Rule of Civil Procedure 55(b)(2) provides in relevant part
that a “court may conduct hearings …. when, to
enter or effectuate judgment, it needs to … determine
het amount of damages. Fed.R.Civ.P. 55(b)(2)(B). Plaintiff
maintains the Court can enter default judgment without a
hearing because the damages can be determined with certainty
based on the current record.
support of its claim for damages, Plaintiff submitted the
sworn declaration of Bryan Jurich, an Assistant Vice
President for Enterprise Fleet Management, who, with the
assistance of other individuals employed by Plaintiff,
calculated the rent and other amounts owed by Defendant.
(Declaration of B. Jurich ¶ 4.) Referencing the
applicable terms of the parties' agreement, Mr. Jurich
asserts that Defendant owes $505, 354.84 to Plaintiff in
rental fees and interest on the arrears. (Id. ¶
16.) The damages are itemized as follows: $120, 382.38 in
past due rent and fees (Id. ¶ 11 & ECF No.
10-3); $73, 042.04 in additional rent (ECF No. 10-2 ¶ 12
& ECF No. 10-4); $5, 539.49 in lease interest on the
unreturned vehicles (ECF No. 10-2 ¶ 13 & ECF No.
10-4); service charges totaling $6, 715.00 (ECF
No. 10-2 ¶ 15 & ECF No. 10-4); $257, 949.38 in
other rent, described as the “Reduced Book Value”
or “RBV, ” with respect to the unreturned
vehicles (ECF No. ...