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Cuattro, LLC v. Carter

United States District Court, D. Colorado

June 21, 2019

CUATTRO, LLC, Plaintiff,
v.
KEITH W. CARTER, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT

          Marcia S. Krieger, Senior United States District Judge

         THIS MATTER comes before the Court pursuant to the Plaintiff's (“Cuttaro”) Motion for Default Judgment (# 16), to which no response was filed.

         FACTS

         Cuttaro 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.

         Mr. 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.

         ANALYSIS

         A. Procedural Findings

         Fed. R. Civ. P. 55(b)(2) allows the Court to enter a default judgment against a defendant who has failed to plead or otherwise defend.

         The 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.

         The 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.

         The 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. 4(e)(2)(A).

         The 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 seq.

         B. Merits

         The Court finds that the allegations in the Amended Complaint, taken as true, adequately allege a claim for breach of contract under Colorado law.[1] 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 ...


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