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Jane Doe and John Doe v. Benjamin Jason Elia Hofstetter

June 13, 2012

JANE DOE AND JOHN DOE, PLAINTIFFS,
v.
BENJAMIN JASON ELIA HOFSTETTER, DEFENDANT.



The opinion of the court was delivered by: David M. Ebel United States Circuit Judge

ORDER GRANTING DEFAULT JUDGMENT AND SETTING HEARING

Pending before the Court are two motions. The first is Jane Doe and John Doe's ("Plaintiffs") amended motion for entry of default judgment against Benjamin Jason Elia Hofstetter ("Defendant"), filed on January 9, 2012 (the "Motion for Default Judgment"). (Doc. 13.) The second is Plaintiffs' motion for a preliminary injunction against Defendant, filed on May 11, 2012 (the "PI Motion"). (Doc. 14.)

For the reasons discussed below, the Court GRANTS the Motion for Default Judgment as to Counts Four, Five, and Eight of Plaintiffs' complaint. Accordingly, the Court ORDERS the parties to appear at a hearing at 2:00 p.m. on July 10, 2012, in Courtroom C202 of the Byron Rogers Courthouse in this District, for the presentation of evidence and argument regarding the amount of damages and the scope of injunctive and/or declaratory relief that may be warranted. The Court further ORDERS Plaintiffs to submit a brief, not to exceed ten pages in length, regarding their requested damages and injunctive relief, no later than July 3, 2012. Finally, in light of those rulings, and because it is not apparent that Plaintiffs have attempted to confer with Defendant regarding the PI Motion, the Court DENIES the PI Motion.

I. Background

Plaintiffs filed their complaint in the District of Colorado on August 23, 2011, seeking relief under federal statutes, common-law tort causes of action, and state statutes. (Doc. 1.) Plaintiffs sought compensatory and punitive damages, injunctive relief, and costs and fees. Defendant was personally served with the complaint in Tennessee (where he apparently resides) on September 12, 2011. (Doc. 4.) Defendant was informed that his answer to the complaint was due within 21 days of service or else default would be entered against him for the relief demanded in the complaint. He has never filed an answer or otherwise communicated with the Court or with Plaintiffs' counsel.

On October 26, 2011, Plaintiffs filed a motion for default pursuant to Fed. R. Civ. P. 55(a) (Doc. 5), and on October 28, 2011, the Clerk entered default against Defendant (Doc. 8). On November 30, 2011, Plaintiffs moved for the Court to enter default judgment against Defendant (Doc. 12), and on January 9, 2012, filed the amended Motion for Default Judgment. Defendant has not responded within the time limit prescribed by D.C.COLO.LCivR 7.1(c). The Motion for Default Judgment is therefore ripe for determination.

Plaintiffs later moved for a preliminary injunction against Defendant in their PI Motion, filed May 11, 2012, seeking injunctive relief pending the Court's consideration of the Motion for Default Judgment.

II. Default judgment under Federal Rule of Civil Procedure 55

"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). The clerk's entry of default "does not constitute a judgment but is rather an order precluding the defaulting party from making any further defense in the case as far as his or her liability is concerned." 46 AM.

JUR. 2D JUDGMENTS § 233 (2008). "After an entry of default, a defendant cannot defend a claim on the merits." Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 n.11 (10th Cir. 2003).

Once default has been entered, "[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 [the] 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). However, "[i]n all other cases," such as this one, "the [plaintiff] must apply to the court for a default judgment" Id. 55(b)(2). The decision to enter default judgment is a matter of the court's "sound judicial discretion." CHARLES ALAN WRIGHT ET AL., 10A FED. PRAC. & PRO. CIV. 3d § 2685. Exercising that discretion, the court "may conduct hearings or make referrals- preserving any federal statutory right to a jury trial-when, to enter or effectuate judgment, it needs to (A) conduct an accounting; (B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or (D) investigate any other matter." Fed. R. Civ. P. 55(b)(2).

Where, as in this case, a defendant "fail[ed] to submit an answer or other pleading denying the factual allegations of Plaintiff's complaint, Defendant admitted those allegations, thus placing no further burden upon Plaintiff to prove its case factually." Burlington No. R.R. Co. v. Huddleston, 94 F.3d 1413, 1415 (10th Cir. 1996); see also Fed. R. Civ. P. 8(b)(6) ("An allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied."). Therefore, in deciding whether to enter default judgment, the court takes as true all of the factual allegations in the complaint. WRIGHT, supra, § 2688. However, "once default is entered, 'it remains, for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.'" Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (quoting WRIGHT, supra, § 2688). "There must be a sufficient basis in the pleadings for the judgment entered." Id. (internal quotation marks, citation omitted).

III. Factual findings

The Court makes the following factual findings based on allegations in Plaintiffs' unanswered complaint. See Burlington Northern, 94 F.3d at 1415.

1. Plaintiffs are married residents of Colorado. Defendant is a Tennessee resident. (Doc. 1 ¶¶ 4, 36.)

2. In November 2010, Defendant published a blog (the "November 2010 Blog") on the internet that contained "intimate, private and personal photographs" of Jane Doe (the "Private Photographs"). Jane Doe did not authorize the publication of the Private Photographs. Defendant published the Private Photographs on other internet sites as well, and distributed the Private Photographs to third parties. (Id. ¶¶ 11-14.)

3. Defendant published false statements about Plaintiffs on the November 2010 Blog, including false statements about Plaintiffs' marriage as well as exaggerations of his relationship with Jane Doe, with the purpose of negatively affecting Plaintiffs' marriage. (Id. ¶¶ 15-18.)

4. Also around that time, Defendant made efforts to contact Jane Doe by email and by cellular telephone. (Id. ¶ 19.)

5. Defendant communicated about Jane Doe through his Twitter account, @TheJasonElia. Defendant sent Twitter messages ( "tweets") to Jane Doe using his ...


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