United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR DEFAULT JUDGMENT
S. Krieger, Senior United States District Judge
MATTER comes before the Court pursuant to the
Plaintiff's (“Cuttaro”) Motion for Default
Judgment (# 16), to which no response was
commenced this action on December 4, 2018, and filed an
Amended Complaint (# 7) on December 14,
2018. The Amended Complaint and its attached exhibits allege
that Mr. Carter and his business entity, Digital Imaging
Solution, LLC, were involved in litigation in this court over
unpaid invoices they owed to Cuttaro. On or about October 5,
2018, the parties resolved that litigation, entering into an
agreement by which Mr. Cater would pay Cuttaro the sum of
$97, 407.59, plus certain interest. That agreement was
memorialized in two different documents, a Promissory Note
(“the Note”) and a Personal Guaranty (“the
Guaranty”). Although, as discussed below, the terms of
the two documents differ in certain respects, both called for
Mr. Carter to pay the promised sum plus interest in monthly
payments of a specified amount. The Complaint alleges that
Mr. Carter made the first payment as scheduled, but failed to
make any further payments. It therefore asserts a single
claim against Mr. Carter, sounding in breach of contract
under Colorado law.
Carter did not file a response to the Amended Complaint, and
on January 22, 2019, the Clerk of the Court noted Mr.
Carter's default (# 14). Cuttaro then
filed the instant motion (#16), seeking a
default judgment against Mr. Carter in the amount of $118,
196.45, reflecting $115, 430 in principal and interest owing
on the Note and $2, 766.05 in attorney fees. The motion
recites that Cuttaro served a copy of it by mail on Mr.
Carter at the Moselle, MS address. Mr. Carter filed no
response to the motion.
Civ. P. 55(b)(2) allows the Court to enter a default judgment
against a defendant who has failed to plead or otherwise
Court finds that it has subject-matter jurisdiction over this
action pursuant to 28 U.S.C. § 1332. Cuttaro has
established by affidavit that it is a limited liability
company and that all its members are citizens of Colorado. It
has alleged that Mr. Wilson is a citizen of Mississippi. The
amount in controversy exceeds $75, 000.
Court finds that it has personal jurisdiction over Mr.
Carter. Although Mr. Carter is a Mississippi resident, both
the Note and Guaranty contain a forum-selection clause,
providing that claims of breach arising under them shall be
brought in the federal or state courts of Colorado, and that
Mr. Carter submits to the jurisdiction of those courts.
Court finds that service of process upon Mr. Carter was
sufficient. The return of service (# 8)
indicates that Mr. Carter was personally served with the
Summons and (Amended) Complaint, thus satisfying Fed.R.Civ.P.
Court finds that Cuttaro has provided an affidavit certifying
that Mr. Carter is not in active duty status under the
Servicemembers Civil Relief Act, 50 U.S.C. § 3911 et
Court finds that the allegations in the Amended Complaint,
taken as true, adequately allege a claim for breach of
contract under Colorado law. To establish a claim for breach
of contract, the party asserting such brief must plead and
prove: (i) that a binding agreement existed between the
parties; (ii) that the plaintiff performed its obligations
under the agreement or that such performance was excused;
(iii) that the defendant did not perform its obligations
under the agreement; and (iv) that the plaintiff ...