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Grice v. McMurdy

United States District Court, W.D. New York

January 8, 2020

JACOB GRICE, Plaintiff,
v.
PHIL MCMURDY and DOE DEFENDANTS 1-25, Defendants.

          DECISION AND ORDER

          MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff Jacob Grice (hereinafter, “Plaintiff”) filed this action on June 7, 2018, alleging breach of contract, fraud, actual fraudulent transfers, constructive fraudulent transfers, unjust enrichment, and intentional infliction of emotional distress, against defendants Phil McMurdy (hereinafter, “defendant McMurdy”) and Doe Defendants 1 through 25 (hereinafter, “the Doe defendants”). Docket No. 1. Presently before the Court is Plaintiff's Request for Entry of Default Judgment for Sum Certain. Docket No. 10. For the following reasons, Plaintiff's request for a default judgment is denied without prejudice.

         BACKGROUND

         The following allegations are taken, as necessary, from Plaintiff's complaint (Docket No. 1). On June 10th and 11th, 2012, Plaintiff and defendant McMurdy entered into a contract, pursuant to which defendant McMurdy was to sell on consignment Plaintiff's sports collectible memorabilia merchandise. Docket No. 1 at ¶ 11. Plaintiff delivered to defendant McMurdy two pallet loads of his sports memorabilia on June 10th and 11th, 2012. Id. at ¶ 12. Plaintiff alleges that defendant McMurdy failed to deliver payment, as required by the contract. See id. at ¶¶ 13-19. Plaintiff further alleges that defendant McMurdy failed to maintain insurance with Collectible Insurance Services LLC, also in contravention of the contract. Id. at ¶¶ 13, 20. The complaint also names 25 Doe defendants.[1] Plaintiff seeks punitive damages for Defendants' alleged conduct. Id. at ¶¶ 65-66.

         Defendant McMurdy was served with a copy of the complaint on August 21, 2018. See Docket No. 3 (Proof of Service). On April 8, 2019, the Court issued an Order to Show Cause, directing that Plaintiff show cause in writing why his case should not be dismissed for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b). See Docket No. 6. Plaintiff filed a response on April 17, 2019, explaining that since June 2018, he has been working “to determine where his merchandise was sold, and gain statements from such persons or entities as to the particulars surrounding the sale of the memorabilia.” Docket No. 8 at ¶ 6. Plaintiff further explained that he was working to quantify the debt owed to him, and to retain an expert to determine the value of each item of memorabilia. Id. at ¶ 7. Plaintiff stated that he planned to file a motion for default judgment once he received calculations from his expert regarding the amount owed by the Defendants. Id. at ¶ 8.

         Also on April 17, 2019, Plaintiff filed an Affidavit in Support of a Request for Entry of Default, which stated that Defendants' deadline for responding to the complaint, which was October 4, 2018, had passed. Docket No. 7-1 at ¶¶ 4, 5. Plaintiff therefore requested that the Clerk of Court enter default against the Defendants. Id. at ¶ 6. Plaintiff's counsel also filed a certificate of service, stating that she served a copy of the request for entry of default by United States Mail. Docket No. 7-3. On April 18, 2019, the Clerk of Court filed an entry of default against the Defendants. Docket No. 9.

         Thereafter, on July 31, 2019, Plaintiff filed a Request for Entry of Default Judgment for a Sum Certain, pursuant to Fed.R.Civ.P. 55(b)(1) and L. R. Civ. P. 55(a). Docket No. 10. Plaintiff requested that the Clerk of Court enter default judgment against Defendants, and order that they pay Plaintiff in the amount of $983, 758.00. See Docket Nos. 10-1, 10-3. Plaintiff's counsel also filed a certificate of service, stating that she served a copy of the request for default judgement by United States Mail. Docket No. 10-4. Included with Plaintiff's request is an affidavit submitted by Austin Neale, I.S.A., AM, an appraiser and auctioneer, which states that the total fair market value of Plaintiff's sports memorabilia is $983, 758.00. See Docket Nos. 10-2, 13.

         DISCUSSION

         I. Plaintiff's Request for Default Judgment for a “Sum Certain.”

         Fed. R. Civ. P. 55(b)(1) provides:

If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk - on the plaintiff's request, with an affidavit showing the amount due - must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

Fed. R. Civ. P. 55(b)(1). “In all other cases, the party must apply to the court for a default judgment.” Id. at (b)(2).

         “The clerk can enter a default judgment only if the amount sought is a sum certain or a sum that can be made certain by computation.” James v. Lopez Motors, LLC, No. 3:16-CV-835(VLB), 2018 WL 1582552, at *2 (D. Conn. Mar. 31, 2018) (citing Fed.R.Civ.P. 55(b)(1)). “[I]f the amount of liability is capable of precise calculation, such as an amount appearing on the face of an instrument, Thorpe v. Thorpe, 364 F.2d 692 (D.C. Cir. 1966), or the amount of a delinquent tax assessment, United States v. Raleigh Restaurant, 398 F.Supp. 496 (E.D.N.Y. 1975), then it is a ‘sum certain or . . . a sum which can by computation be made certain.'” Combs v. Coal & Mineral Management Services, Inc., 105 F.R.D. 472, 474 (D.D.C. 1984); see also U.S. v. Gagnon, No. 8:17-CV-0027(GTS/CFH), 2017 WL 6507099, at *2 (N.D.N.Y. Dec. 19, 2017) (describing a “sum certain, ” as an amount that is “liquidated or susceptible to mathematical computation.”). “The clerk may properly ...


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