United States District Court, D. Colorado
DAVID JACKSON; KENNETH THOMAS; JAVIER MORA-MONCADA; GILDARDO MORA-MONCADA, and JESUS OROZCO, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
AML CONSTRUCTION & DESIGN GROUP, ALEXANDER KENNEDY, CUSTOM SOLUTIONS BY ALVARADO CONSTRUCTION, LLC, and MIKE ALVARADO, Defendants. MIKE ALVARADO, Cross-Claim Plaintiff,
AML CONSTRUCTION & DESIGN GROUP and ALEXANDER KENNEDY, Cross-Claim Defendants.
A. BRIMMER, United States District Judge
matter is before the Court on Defendant Mike Alvarado's
Verified Motion for Default and Default Judgment Against AML
Construction and Design Group and Alexander Kennedy [Docket
No. 38]. The Court has jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1367.
19, 2016, plaintiffs filed a collective action complaint
against defendants alleging wage and hour claims under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., and state law. Docket No. 1. On August 8,
2016, defendant Mike Alvarado, acting pro se, filed
an answer consisting essentially of a general denial. Docket
No. 8. Plaintiffs served defendants AML Construction &
Design Group (“AML”), Alexander Kennedy, Mike
Alvarado, and Custom Solutions by Alvarado Construction, LLC.
Docket Nos. 10-13, 16. On October 18, 2016, at a status conf
erence, Magistrate Judge Michael E. Hegarty ordered
appointment of pro bono counsel for Mr. Alvarado and Custom
Solutions by Alvarado Construction, LLC (the “Alvarado
defendants”). Docket No. 19. AML and Mr. Kennedy failed
to appear at the status conference, and Judge Hegarty ordered
them to show cause why default should not be entered against
them. Docket No. 20. They failed to respond. Docket No. 22.
At a status conference on November 8, 2016, Judge Hegarty
ordered entry of default against AML and Mr. Kennedy,
id., which was then entered by the Clerk of the
Court. Docket No. 23. Judge Hegarty also granted the Alvarado
defendants leave to file an amended answer and counterclaims.
Docket No. 22. On November 18, 2016 the Alvarado defendants,
now represented by counsel, filed an amended answer and
cross-claims that included wage and hour cross-claims by Mr.
Alvarado against AML and Mr. Kennedy. Docket No.
December 21, 2016, the Alvarado defendants filed a
certificate of service stating that they had served their
amended answer and cross-claims on AML and Mr. Kennedy by
mail at their last known address and email. Docket No. 37. On
April 3, 2017, the Alvarado defendants filed the present
motion. Docket No. 38. They request that “a default be
entered by the Clerk of the Court against Defendants
Integrity[, ] Alexander Kennedy and AML Construction and
Design Group in the amount of $38, 407.00.”
Id. at 3.
order to obtain a judgment by default, a party must follow
the two-step process described in Federal Rule of Civil
Procedure 55. First, it must seek an entry of default from
the Clerk of the Court under Rule 55(a). Rule 55(a) provides
that “[w]hen 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). Second, after default has been entered by
the Clerk, the party must seek default judgment according to
the strictures of Rule 55(b). See Williams v.
Smithson, 1995 WL 365988, at *1 (10th Cir. June 20,
1995) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d
consequence of default is that the well-pleaded allegations
in the complaint are deemed admitted. See Charles
Wright, Arthur Miller & Mary Kane, Fed. Prac. &
Proc. § 2688.1 (3d ed. 2010). “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
conclusions of law.” Id. A court need not
accept conclusory allegations. Moffett v. Halliburton
Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir.
2002). Although “[s]pecific facts are not
necessary” in order to state a claim, Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)), the well-pleaded facts must “permit the court
to infer more than the mere possibility of misconduct.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(internal quotation and alteration marks omitted). Thus, even
though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (quotation and citation omitted).
decision to enter default judgment is “committed to the
district court's sound discretion.” Olcott v.
Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003)
(internal quotation marks omitted). In exercising that
discretion, the Court considers that “[s]trong policies
favor resolution of disputes on their merits.”
Ruplinger v. Rains, 946 F.2d 731, 732 (10th Cir.
1991) (quotation and citations omitted). “The default
judgment must normally be viewed as available only when the
adversary process has been halted because of an essentially
unresponsive party.” Id. It serves to protect
a plaintiff against “interminable delay and continued
uncertainty as to his rights.” Id. at 733.
When “ruling on a motion for default judgment, the
court may rely on detailed affidavits or documentary evidence
to determine the appropriate sum for the default
judgment.” Seme v. E&H Prof'l Sec. Co.,
Inc., No. 08-cv-01569-RPM-KMT, 2010 WL 1553786, at *11
(D. Colo. Mar. 19, 2010). “[A] court may not enter a
default judgment without a hearing unless the amount claimed
is a liquidated sum or one capable of mathematical
calculation.” Venable v. Haislip, 721 F.2d
297, 300 (10th Cir. 1983). The Court need not conduct a
fact-intensive inquiry, but must ensure that there is
“a basis for the damages specified in the default
judgment.” Transatlantic Marine Claims Agency, Inc.
v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d
105, 111 (2d Cir. 1997).
Court will deny the Alvarado defendants' motion with
leave to refile because Mr. Alvarado has failed to follow the
prescribed procedure for entry of default judgment. Mr.
Alvarado must first request the Clerk of the Court enter
default against AML and Mr. Kennedy. Fed.R.Civ.P. 55(a);
see, e.g., Auto-Owners Insurance Company v. Bridgewater
International, Inc., No. 15-cv-01665-PAB-KLM, Docket No.
14 (D. Colo. Sept. 10, 2015). After default is entered, Mr.
Alvarado may move the Court for entry of a default judgment
pursuant to Fed.R.Civ.P. 55(b). Although default has
previously been entered against AML and Mr. Kennedy, Docket
No. 23, that entry of default was before Mr. Alvarado filed
his cross-claims. Docket No. 24. Mr. Alvarado is also
reminded that, before entering default judgment, the Court
must review his allegations (which are deemed admitted upon
default) to determine if the unchallenged factual
allegations, not legal conclusions, state a cause of action.
See Bixler v. Foster, 596 F.3d 751, 762 (10th Cir.
2010). Additionally, the Court cannot accept conclusory
statements as to damages. Transatlantic Marine Claims
Agency, Inc., 109 F.3d at 111. Rather, a detailed
affidavit or documentary or testimonial evidence is necessary
for the Court to determine whether the claimed damages are
appropriate. Id. Here, the Alvarado defendants'
counsel's affidavit merely states in conclusory fashion
that “Mike Alvarado is seeking compensation, penalties,
attorney's fees and costs against AML and Kennedy in the
amount of $38, 407.00” without indicating any basis for
that amount such as unpaid hours worked, hourly rate, or the
amount attributable to each listed category of damages.
Docket No. 38-1 at 2, ¶ 8. Such proof would not suffice.
foregoing reasons, it is ORDERED that Defendant Mike
Alvarado's Verified Motion for Default and Default
Judgment Against AML Construction and Design Group and
Alexander Kennedy [Docket No. 38] is DENIED without
 An additional defendant, Alexander
Cash, was included in both the initial complaint and
cross-claims, see Docket Nos. 1, 24, but he was
dismissed based on information from counsel that Alexander
Cash is an alias of Alexander Kennedy. See Docket
 While the motion was filed on behalf
of the Alvarado defendants, Docket No. 38 at 1, the
cross-claims are only on behalf of Mr. Alvarado. See