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JTH Tax, Inc. v. Grabert

United States District Court, E.D. Virginia, Norfolk Division

March 26, 2014

JTH TAX, INC., D/B/A LIBERTY TAX SERVICE, Plaintiff,
v.
TRISHA GRABERT, Defendant

Nunc Pro Tunc: December 30, 2013.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For JTH Tax, Inc. doing business as Liberty Tax Service, Plaintiff: David Andrew Lindley, Jr, LEAD ATTORNEY, Liberty Tax Service, Virginia Beach, VA.

Trisha Grabert, Defendant, Pro se, Louisville, KY.

OPINION

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AMENDED OPINION AND ORDER[1]

Mark S. Davis, United States District Judge.

This matter is before the Court on an unopposed Motion for Default Judgment filed by Plaintiff, JTH Tax, Inc., d/b/a Liberty Tax Service (" Liberty" ). Defendant Trisha Grabert (" Grabert" or " Defendant" ) has not filed a response in opposition to the instant motion, and the time for doing so has long since passed. For the reasons set forth below, Liberty's Motion for Default Judgment is GRANTED, in part, and the Court WITHOLDS ruling, in part, until an evidentiary hearing is conducted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Liberty is engaged in the business of advertising, promoting, and licensing a system of tax preparation centers throughout the United States. Compl. ¶ 6, ECF No. 1. Between 2008 and 2012, Grabert signed four franchise agreements with Liberty for four separate " Liberty Tax" franchise locations and executed four

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promissory notes payable to Liberty. Id. ¶ 12. Each of the franchise agreements expressly sets forth Grabert's contractual post-termination duties including: paying all amounts due to Liberty, ceasing to associate herself with Liberty, transferring all telephone numbers, customer files, and operations manuals to Liberty, and adhering to limited covenants not to compete. Aff. of Robert Oliver, Exs. 2-5, ECF No. 6.

On April 20, 2012, Liberty terminated all four of Grabert's franchise agreements due to her failure to submit contractually required reports and failure to pay monies owed to Liberty. Compl. ¶ 13. The promissory notes associated with the terminated franchises expressly provide that failure to timely pay the amounts due constitutes a default and authorizes Liberty to accelerate the entire outstanding debt. Aff. of Danilo Jose, Exs. 1-4, ECF No. 4. Each promissory note also requires payment of all attorney's fees, costs, or expenses that Liberty may incur in enforcing the notes. Id.

On January 28, 2013, Liberty filed a complaint in this Court against Grabert alleging breach of the promissory notes, breach of the franchise agreements, and defamation per se. Compl. ¶ ¶ 6-12. Liberty's complaint seeks monetary damages and equitable relief in the form of a permanent injunction. Liberty's claimed damages result from Grabert's failure to make timely payments, refusal to abide by her post-termination obligations, and defamatory postings on the internet.

On April 8, 2013, Grabert was properly served with a copy of the summons and complaint. Summons, ECF No. 8. However, Grabert failed to file a responsive pleading. On May 6, 2013, Liberty requested Entry of Default, and the Clerk entered default on May 7, 2013. ECF No. 10. Liberty, thereafter, filed the instant motion for default judgment, and the time for Grabert's ...


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