United States District Court, D. Colorado
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
William J. Martinez United States District Judge
Aegis Spine, Inc. (“Plaintiff”) brings this
action against Defendant Aegis Spine Canada, Ltd.
(“Defendant”) for breach of contract and
quantum meruit. (ECF No. 1.) Before the Court is
Plaintiff's Motion for Entry of Default Judgment
(“Motion”). (ECF No. 15.) For the following
reasons, the Motion is granted.
must enter against a party who fails to appear or otherwise
defend a lawsuit. Fed.R.Civ.P. 55(a). Pursuant to Rule
55(b)(1), default judgment must be entered by the clerk of
court if the claim is for “a sum certain”; in all
other cases, “the party must apply to the court for a
default judgment.” Fed.R.Civ.P. 55(b)(2).
“[D]efault judgment must normally be viewed as
available only when the adversary process has been halted
because of an essentially unresponsive party. In that
instance, the diligent party must be protected lest he be
faced with interminable delay and continued uncertainty as to
his rights. The default judgment remedy serves as such a
protection.” In re Rains, 946 F.2d 731, 732-33
(10th Cir. 1991) (internal quotation marks and citation
“a party is not entitled to a default judgment as of
right; rather the entry of a default judgment is entrusted to
the ‘sound judicial discretion' of the
court.” Greenwich Ins. Co. v. Daniel Law Firm,
2008 WL 793606, at *2 (D. Colo. Mar. 22, 2008). Before
granting a motion for default judgment, the Court must take
several steps. First, the Court must ensure that it has
personal jurisdiction over the defaulting defendant and
subject matter over the action. See Williams v. Life Sav.
& Loan, 802 F.2d 1200, 1202-03 (10th Cir. 1986).
Next, the Court should consider whether the well-pleaded
allegations of fact-which are admitted by the defendant upon
default-support a judgment on the claims against the
defaulting defendant. See Fed. Fruit & Produce Co. v.
Red Tomato, Inc., 2009 WL 765872, at *3 (D. Colo. Mar.
20, 2009) (“Even after entry of default, however, it
remains for the court to consider whether the unchallenged
facts constitute a legitimate basis for the entry of a
judgment.”). “In determining whether a claim for
relief has been established, the well-pleaded facts of the
complaint are deemed true.” Id. (citing
Dundee Cement Co. v. Howard Pipe & Concrete Prods.,
Inc., 722 F.2d 1319, 1323 (7th Cir. 1983)).
Defendant's failure to appear and answer, the Court finds
the following to be undisputed.
is a Colorado corporation with its principal place of
business in Greenwood Village, Colorado. (ECF No. 1 ¶
1.) Plaintiff “is a distributor of orthopedic implant
products, with a primary focus on spinal implant
devices.” (Id. ¶ 2.) According to the
Complaint, Plaintiff contracted with Defendant, a Canadian
company, to effect distribution of its spinal products in the
Canadian market. (Id. ¶¶ 4, 7.)
on December 1, 2015, the parties entered into a contract (the
“Distribution Agreement”) in which Plaintiff
agreed to ship certain medical devices and instruments to
Defendant for Defendant to market in Canada. (Id.
¶ 11; see also ECF No. 1-2.) The Distribution
Agreement details a six-part payment schedule beginning July
31, 2016 through December 31, 2016, in which Defendant would
compensate Plaintiff for the products delivered. (ECF No. 1
¶ 19; see also ECF No. 1-2 at 17.) Plaintiff
also asserts that it loaned additional medical instruments to
Defendant. (ECF No. 1 ¶¶ 21, 28.) Plaintiff claims
that it “shipped all of the specified products and
[loaned] instruments to Defendant.” (Id.
¶ 12.) Plaintiff now asserts that Defendant “has
made none of the payments that it was required to make”
and that it “is still in possession of
[Plaintiff's] loaned instruments.” (Id.
¶¶ 27, 28.)
on this course of events, Plaintiff initiated this action by
filing a complaint on September 29, 2016. (ECF No. 1.) As
noted above, Defendant failed to appear, thus the Clerk filed
an Entry of Default as to Defendant on March 2, 2017. (ECF
No. 18.) Plaintiff filed the instant Motion before the Court
on January 3, 2017. (ECF No. 15.)
Court has reviewed the Motion, the exhibits and declarations,
and the applicable law, and is sufficiently advised on the
the preceding legal standards in mind and before considering
whether damages should be assessed in this case, the Court
addresses whether Plaintiff has established jurisdiction and
whether its claims state a legal basis for relief.