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Grimes v. Dumas

United States District Court, D. Colorado

May 9, 2019

JEROME L. GRIMES, Plaintiff,


          Kathleen M. Tafoya United States Magistrate Judge.

         This 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”). Also before the court is Plaintiff's “Motion for Leave to File an Amended Complaint.” (Doc. No. 48, filed April 28, 2019.) For the following reasons, the court respectfully recommends that both motions be DENIED.


         The 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.)

         On 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)


         Plaintiff 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[1], 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.)

         On February 15, 2019, after review of Plaintiff's Amended Complaint and the docket, the court entered an 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.)

         Plaintiff's Proposed Second Amended Complaint deletes the entire “Background of the Case” section, every defendant but SSP, 720 Chapman, LLC, and certain claims. (See Doc. No. 50.) Plaintiff's proposed pleading does not contain any new factual or legal allegations. (Id.) On April 25, 2019 and April 29, 2019, respectively, Plaintiff filed a supplement and amended supplement to his Motion for Leave to File Amended Complaint, both of which contain documentation regarding a loan proposal for Jerome L. Grimes' Productions, LLC. (Doc. Nos. 51, 52).


         A. Entry of Default Judgment

         Default 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 omitted).

         Further, “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. 1994).

         Next, 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 Cir. 2006).

         B. Amended Complaint

         Motions to amend should be freely granted when justice requires. See, e.g., Bellairs v. Coors Brewing Co., 907 F.Supp. 1448, 1459-60 (D. Colo. 1995). However, a motion to amend may be denied because of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. . . .” Foman v. Davis, 371 U.S. 178, 182 (1962). A motion to amend must be left to the sound discretion of the district court, and must be decided based upon a careful evaluation of multiple factors. State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984). ...

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