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Risorto v. Malcolm S. Gerald & Associates, Inc.

United States District Court, D. Colorado

March 13, 2014

SIMONA RISORTO, Plaintiff,
v.
MALCOLM S. GERALD & ASSOCIATES, INC., Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BOYD N. BOLAND, Magistrate Judge.

This matter arises on the Plaintiff's Motion for Default Judgment and Attorney's Fees [Doc. # 17, filed 2/12/2014] (the "Motion"), which seeks the entry of judgment by default. I respectfully RECOMMEND that the Motion [Doc. # 28] be GRANTED and that judgment enter in favor of the plaintiff and against the defendant for statutory damages in the amount of $1, 000.00; attorneys fees in the amount of $2, 417.50; and costs upon the filing of a bill of costs.

LEGAL STANDARD

The entry of a default judgment is controlled by Fed.R.Civ.P. 55(b), which provides in relevant part:

(b) Entering a Default Judgment.
(2) By the Court. In all other cases [not subject to subpart (b)(1)], the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or be a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. 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 allegations by evidence; or
(D) investigate any other matter.

Rule 55(a), Fed. R. Civ. P., allows a default against a party when that party "has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise...." A trial court is vested with broad discretion in deciding whether to enter a default judgment. Grandbouche v. Clancy , 825 F.2d 1463, 1468 (10th Cir. 1987).

"Once the default has been established, defendant has no further standing to contest the factual allegations of plaintiff's claim for relief." 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d ยง 2688 at p. 63; accord Olcott v. Delaware Flood Co. , 327 F.3d 1115, 1125 n.11 (10th Cir. 2003)(stating that "[a]fter an entry of default, a defendant cannot defend a claim on the merits"). In addition:

Even after default, however, 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.... Once the court determines that a judgment by default should be entered, it will ...

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