United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE
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
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. Plaintiff seeks
punitive damages for Defendants' alleged conduct.
Id. at ¶¶ 65-66.
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
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.
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.
Plaintiff's Request for Default Judgment for a
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).
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