United States District Court, D. Colorado
JEROME L. GRIMES, Plaintiff,
KRISTY DUMAS, MARY CHAN, ASHLEY CHANDLER, SSP, 720 CHAPMAN, LLC, COLORADO SPRINGS APARTMENT MANAGEMENT, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M Tafoya, United States Magistrate Judge.
case comes before the court on Plaintiff Jerome Grimes'
“Motion for Entry of Default Judgment.” (Doc. No.
37, filed March 12, 2019.) Plaintiff seeks default judgment
against Defendants Kristy Dumas, Mary Chan, Ashley Chandler,
SSP, 720 Chapman, LLC, and Colorado Springs Apartment
Management (collectively “Defendants”). For the
following reasons, the court respectfully recommends that
Grimes' Motion for Entry of Default Judgment be DENIED.
following factual background is derived from Plaintiff's
Amended Complaint. (Doc. No. 4.) On or around August 3, 2018,
Plaintiff rented an apartment collectively owned and run by
Defendants in Colorado Springs, Colorado. (Id. at
2-3, 6, Exh. A.) Shortly thereafter, Defendants informed
Plaintiff they would be entering his apartment to spray for
roaches as part of a two-phase pest control process.
(Id. at 3-6, Exhs. F, H.) In September, Plaintiff
received a notice that Defendants would be entering his
apartment to perform the second pest spray on September 27,
2018 but, for reasons unknown to the court, Defendants did
not spray that day. (Id. at 11, Exhs. F, N.)
October 3, 2018, Defendants charged Plaintiff a $150 fee for
missing/refusing the September 27, 2018 pest spraying.
(Id. at 11, 15.) Defendants also charged Plaintiff
$93.80 in sewage and water fees plus a $5.00 per day late
fee. (Id. at 15.) Plaintiff filed suit the following
month, alleging various claims associated with Defendants
entering his apartment and charging him fees. (See
generally Amended Complaint)
filed his pro se Complaint on October 31, 2018 (Doc.
No. 1) and filed his Amended Complaint on November 6, 2018
(Doc. No. 4 [Amend. Compl.]). Plaintiff's Amended
Complaint, although somewhat difficult to decipher, appears
to assert claims for relief against Defendants pursuant to
the Fourth, Sixth and Fourteenth Amendments to the U.S.
Constitution, Dodd-Frank Wall Street Reform and
Consumer Protection Act, various criminal claims, as well as
a claim for injunctive relief. (See generally Amend.
Compl.) On November 6, 2018, Plaintiff returned proofs of
service for each of the defendants. (Doc. No. 6.) Plaintiff
moved for default judgment on December 6, 2018 (Doc. No. 12),
but the court denied the motion because review of the docket
indicated the summonses were never issued by the Clerk of
Court (Doc. No. 14). Plaintiff purportedly served each of the
defendants with the Clerk-issued summonses on December 21,
2018, and filed the proofs of service on December 26, 2018.
(Doc. Nos. 18-22.) Plaintiff filed an Amended Motion for
Entry of Default on December 31, 2018 (Doc. No. 23), which
the court denied because the time to answer or otherwise
respond had not expired (Doc. No. 24). None of the Defendants
answered, moved against, or otherwise responded to the
Amended Complaint, and Plaintiff filed Motions for Entry of
Default on February 11, 2019 and February 12, 2019. (Doc.
Nos. 27, 28.) The Clerk entered default as to each of the
defendants on February 15, 2019. (Doc. No. 29.)
February 15, 2019, after review of Plaintiff's Amended
Complaint and the docket, the court entered an order allowing
the defendants to file responses to the Motions for Entry of
Default no later than March 12, 2019. (Doc. No. 34.) In that
Order, the court noted it had reviewed the proofs of service
and was suspicious of proper service and notification. (Doc.
No. 34, pg. 1.) Accordingly, the court directed the Clerk to
mail copies of the Order, the Amended Complaint, the proofs
of service, Plaintiff's motions, and the Clerk's
entry of default as to the defendants. (Id. at pg.
2.) The court further directed the Clerk to send copies of
the same to the registered agent of Defendant SSP, 710
Chapman, LLC, as listed by the Colorado Secretary of State.
(Id.) No defendant responded to the Motions for
Entry of Default. On March 12, 2019, Plaintiff filed the
present Motion for Entry of Default Judgment. (Doc. No. 37.)
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,
No. 07-cv-2445, 2008 WL 793606, at *2 (D.Colo. Mar. 22, 2008)
(internal citation omitted). Before granting a motion for
default judgment, the court must take several steps. First,
the court must ensure it has subject matter jurisdiction over
the action and personal jurisdiction over the defaulting
defendants. See Williams v. Life Sav. & Loan,
802 F.2d 1200, 1202-03 (10th Cir.1986). The court must do so
in consideration of the well-established rule that “a
judgment is void if the court that enters it lacks
jurisdiction over either the subject matter of the action or
the parties to the action.” United States v. 51
Pieces of Real Prop., 17 F.3d 1306, 1309 (10th Cir.
the court should consider whether the well-pleaded
allegations of fact, which are deemed admitted by a defendant
in default, support a judgment on the claims against the
defaulting defendants. See Fed. Fruit & Produce Co.
v. Red Tomato, Inc., 2009 WL 765872, *3 (D.Colo. March
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.”) (citations omitted). “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)). Once the court is satisfied that default judgment
should be entered, it has the discretion to hold a hearing to
determine the amount of damages. See Fed. R. Civ.
Pro. 55(b)(2). Generally, a damages hearing is not needed
when the damages requested are for a sum certain. See
United States v. Craighead, 176 Fed.Appx. 922, 925 (10th