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Goldbelt Wolf, LLC v. Operational Wear Armor, LLC

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

May 13, 2016

GOLDBELT WOLF, LLC, Plaintiff,
v.
OPERATIONAL WEAR ARMOR, LLC, Defendant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS

          JOHN F. ANDERSON, Magistrate Judge.

         This matter is before the court on plaintiff's Request for Default Judgment Under Rule 55 (Docket no. 47) ("motion for default judgment"). In the instant motion, Goldbelt Wolf, LLC ("plaintiff" or "Goldbelt") seeks a default judgment against Operational Wear Armor, LLC ("defendant" or "OpWear"). Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned magistrate judge is filing with the court his proposed findings of fact and recommendations, a copy of which will be provided to all interested parties.

         Procedural Background

         On October 2, 2015, plaintiff filed the complaint in this matter alleging that defendant breached six purchase-order agreements by its failure to pay plaintiff for goods it received pursuant to the agreements. (Docket no. 1) ("Compl."). Upon the filing of the complaint, a summons was issued for service on defendant in Indianapolis, Indiana (Docket no. 3), which was returned unserved on October 27, 2015 (Docket no. 4). On October 27, 2015, an alias summons was issued for service on defendant in Jacksboro, Tennessee. (Docket no. 5). On November 2, 2015, Sharon Schwartz, an employee at OpWear, was served personally with a copy of the summons and complaint. (Docket no. 6 at 2).

         On December 1, 2015, the District Judge entered an order instructing plaintiff to obtain immediately an entry of default from the Clerk of Court pursuant to Fed.R.Civ.P. 55(a), and subsequently file a motion for default judgment, an accompanying memorandum, and a notice setting a hearing on the motion for no later than January 8, 2016. (Docket no. 8). Also on December 1, 2015, plaintiff filed its request for entry of default as to the defendant. (Docket no. 7). On December 2, 2015, the Clerk of Court entered the default of the defendant pursuant to Fed.R.Civ.P. 55(a). (Docket no. 9). On December 9, 2015, plaintiff filed a motion for default judgment (Docket no. 10) ("first motion for default judgment"), an affidavit of Philip Livingston, the general counsel of Goldbelt, Inc. (Docket no. 10-1 at 1-3) ("First Livingston Aff.") with attached exhibits (Docket no. 10-1 at 4-10), and a notice setting a hearing on the motion for December 18, 2015 (Docket no. 11). In response to an inquiry from the court, plaintiff filed a second affidavit of Philip Livingston, addressing the issue of the citizenship of the parties. (Docket no. 12) ("Second Livingston Aff."). On December 18, 2015, counsel for the plaintiff appeared at the hearing before the undersigned and no one appeared on behalf of the defendant. (Docket no. 13). After the hearing, the undersigned entered a Proposed Findings of Fact and Recommendations on December 18, 2015, which recommended that plaintiff's first motion for default judgment be granted and default judgment be entered in favor of plaintiff against defendant. (Docket no. 14).

         On January 4, 2016, counsel made an entry of special appearance on behalf of defendant (Docket no. 15), and additionally, filed a motion to set aside entry of default (Docket no. 16) and an objection to the undersigned's Proposed Findings of Fact and Recommendations entered on December 18, 2015 (Docket no. 18). Defendant's motion to set aside entry of default was noticed to be heard before the District Judge on February 4, 2016. (Docket no. 20). On February 4, 2016, the parties appeared before the District Judge to present argument on defendant's motion to set aside default, which was taken under advisement. (Docket no. 23). On February 22, 2016, the District Judge denied plaintiff's first motion for default judgment, granted defendant's motion to set aside default, and sustained defendant's objection to the Proposed Findings of Fact and Recommendations entered on December 18, 2015, finding defendant had not been served properly under Tennessee or Virginia law. (Docket nos. 25, 26). The District Judge further ordered defendant to file a responsive pleading in this action by March 2, 2016. (Docket no. 26). Defendant failed to file a responsive pleading by that deadline.

         Upon defendant's failure to file a responsive pleading, plaintiff filed a request for entry of default against defendant on March 4, 2016. (Docket no. 28). On March 6, 2016, defendant filed a motion to dismiss for failure to effect service of process (Docket no. 29), which was noticed for a hearing before the District Judge on April 14, 2016 (Docket no. 33). On April 13, 2016, counsel for defendant also filed a motion to withdraw (Docket no. 39).

         On April 14, 2016, the parties appeared before the District Judge to present argument on defendant's motion to dismiss for failure to effect service of process and defendant's counsel's motion to withdraw. (Docket no. 42). On that date, the District Judge denied defendant's motion to dismiss for failure to effect service of process and granted defendant's counsel's motion to withdraw and indicated that orders would follow. (Id). On May 3, 2016, the District Judge entered an order granting defendant's counsel's motion to withdraw. (Docket no. 44). Additionally, the District Judge entered an order that denied defendant's motion to dismiss, granted plaintiff's March 4, 2016 request for entry of default, and directed the Clerk of Court to enter a default against defendant pursuant to Federal Rule of Civil Procedure 55(a). (Docket no. 45). The Clerk of Court entered the default of defendant in accordance with Rule 55(a) of the Federal Rules of Civil Procedure on May 3, 2016. (Docket no. 46).

         On May 6, 2016, plaintiff filed the instant motion for default judgment (Docket no. 47), exhibits in support (Docket no. 47-1), and a notice setting a hearing on the motion before the undersigned for May 13, 2016 (Docket no. 48). On May 9, 2016, plaintiff filed an affidavit of Philip Livingston (Docket no. 49) ("Third Livingston Aff.") in support of the instant motion for default judgment. The instant motion for default judgment, supporting exhibits, and the notice of hearing were served on the defendant by first-class mail through defendant's registered agent in Tennessee, Wade W. Lemon, at Operational Wear Armor, LLC, 179 Mine Lane, Jacksboro, TN XXXXX-XXXX, and defendant's registered agent in Indiana, R. Wade Lemon, Jr., at Operational Wear Armor, LLC, 5806 Coppock Drive, Indianapolis, IN 46221. (Docket no. 47 at 8; Docket no. 48 at 2). On May 13, 2016, counsel for the plaintiff appeared at the hearing before the undersigned and no one appeared on behalf of the defendant.

         Proposed Findings and Recommendations

         Rule 55 of the Federal Rules of Civil Procedure provides for the entry of a default judgment when "a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Fed.R.Civ.P. 55(a). Based on the District Judge's instructions, the Clerk of Court has entered a default as to defendant. (Docket no. 46).

         A defendant in default admits the factual allegations in the complaint. GlobalSantaFe Corp. v. Globalsantafe.com, 250 F.Supp.2d 610, 612 n.3 (E.D. Va. 2003) ("Upon default, facts alleged in the complaint are deemed admitted and the appropriate inquiry is whether the facts as alleged state a claim."). Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that a court may conduct a hearing to determine the amount of damages, establish the truth of any allegation by evidence, or investigate any other matter.

         Jurisdiction and Venue

         A court must have both subject matter and personal jurisdiction over a defaulting party before it can render a default judgment. Plaintiff alleges that this matter is properly brought in this court under 28 U.S.C. § 1332 based on complete diversity ...


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