United States District Court, D. New Mexico
Shive Rio Rancho, New Mexico Plaintiff Pro Se.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION,
AND SETTING THIS MATTER FOR A DAMAGES HEARING
MATTER comes before the Court on: (i) the Magistrate
Judge's Second Proposed Findings and Recommended
Disposition, filed August 25, 2017 (Doc.
79)(“PFRD”); and (ii) the Plaintiff's Third
Motion for Default Judgment Against Defendant J&C
Baseball Clubhouse, Inc., (“J&C Baseball”)
filed July 20, 2017 (Doc. 77)(“Motion”). No party
objected to the Honorable William P. Lynch's PFRD, which
recommended that the Court grant the Motion. Because the
Court concludes that Magistrate Judge Lynch's conclusions
and recommended disposition in the PFRD are not clearly
erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion, the Court will adopt the PFRD. Accordingly,
having entered default judgment against J&C Baseball, the
Court will refer this case to the Honorable Jerry Ritter,
United States Magistrate Judge, to conduct a jury trial on
the question of damages.
James Shive filed a Complaint for Copyright Infringement,
filed May 12, 2015 (Doc. 1)(“Complaint”), against
J&C Baseball and others. Shive alleges that J&C
Baseball reproduced and sold online copies of a photograph of
Clarence Clemons, for which Shive maintains a copyright,
without Shive's permission. See Complaint
¶¶ 14, 16, at 6. Pertinent here, Shive filed a
Proof of Service as to J&C Baseball, filed February 16,
2017 (Doc. 70). Shive then moved for entry of default under
rule 55(a) of the Federal Rules of Civil Procedure.
See Request for Entry of Default, filed June 6, 2017
(Doc. 75). The Clerk of this Court entered default as to
J&C Baseball. See Clerk's Entry of Default,
filed June 28, 2017 (Doc. 76). Subsequently, Shive filed his
Motion for Default Judgment Against Defendant J&C
Baseball Clubhouse, Inc., filed July 20, 2017 (Doc. 77).
Shive included an Affidavit In Support of Motion for Default
Judgment, filed July 20, 2017 (Doc. 78). Judge Lynch entered
his PFRD on August 25, 2017, recommending that the Court
grant Shive's Motion. See PFRD at 8.
REGARDING DEFAULT JUDGMENT
mandates a two-step process for a default judgment. First, a
party must obtain a Clerk's entry of default.
See Fed.R.Civ.P. 55(a) (“When 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.”); Watkins v. Donnelly, 551 Fed.Appx.
953, 958 (10th Cir. 2014)(unpublished)(“Entry of
default by the clerk is a necessary prerequisite that must be
performed before a district court is permitted to issue a
default judgment.”). Second, the party must either
request the Clerk to enter default judgment when the claim is
for “a sum certain or a sum that can be made certain by
computation, ” Fed.R.Civ.P. 55(b)(1), or, “[i]n
all other cases, the party must apply to the court for a
default judgment, ” Fed.R.Civ.P. 55(b)(2).
entering default judgment, a district court takes all of the
well-pleaded facts in a complaint as true. See United
States v. Craighead, 176 Fed.Appx. 922');">176 Fed.Appx. 922, 925 (10th Cir.
2006) (unpublished); Flaks v. Koegel, 504 F.2d 702,
707 (2d Cir. 1974)(“While a default judgment
constitutes an admission of liability, the quantum of damages
remains to be established by proof unless the amount is
liquidated or susceptible of mathematical computation.”
(citations omitted)). “‘If defendant does not
contest the amount prayed for in the complaint [by failing to
answer] and the claim is for a sum certain or a sum that can
be made certain by computation, the judgment generally will
be entered for that amount without any further
hearing.'” United States v. Craighead, 176
Fed.Appx. at 925 (alteration in original)(quoting 10A Charles
Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L.
Marcus & Adam N. Steinman, Federal Practice &
Procedure § 2688, at 70-71 (4th ed. 2016)).
See Fed.R.Civ.P. 8(d) (“Averments in a
pleading to which a responsive pleading is required, other
than those as to the amount of damage, are admitted when not
denied in the responsive pleading.”). “‘A
court may enter a default judgment without a hearing only if
the amount claimed is . . . one capable of mathematical
calculation.'” Applied Capital, Inc. v.
Gibson, 558 F.Supp.2d 1189, 1202 (D.N.M. 2007)(Browning,
J.) (quoting H.B. Hunt v. Inter-Globe Energy, Inc.,
770 F.2d 145, 148 (10th Cir. 1985) and citing Venable v.
Haislip, 721 F.2d 297, 300 (10th Cir. 1983)). “It
is a familiar practice and an exercise of judicial power for
a court upon default, by taking evidence when necessary or by
computation from facts of record, to fix the amount which the
plaintiff is lawfully entitled to recover and to give
judgment accordingly.” 10A Wright & Miller,
supra, § 2688, at 80 (quoting Pope v.
United States, 323 U.S. 1, 12 (1944)).
“If the damages sum is not certain or capable of easy
computation, the court may” conduct such hearings or
order such references as it deems necessary. Applied
Capital, Inc. v. Gibson, 558 F.Supp.2d at 1202 (citing
Beck v. Atl. Contracting Co., 157 F.R.D. 61, 64
(D.Kan. 1994)(Lungstrum, J.)). See Fed.R.Civ.P.
55(b)(2)(B) (“The court may conduct hearings or make
referrals . . . when, to enter or effectuate judgment, it
needs to . . . determine the amount of damages.”).
judgments are a harsh sanction.” In re Rains,
946 F.2d 731, 732 (10th Cir. 1991). The Court has noted that,
“[b]ecause default judgment is a harsh sanction
involving a court's power to enter and enforce judgments
regardless of the merits of a case, courts do not favor such
a sanction ‘purely as a penalty for delays in filing or
other procedural error.'” Noland v.
City of Albuquerque, No. CIV 08-0056, 2009 WL 2424591,
at *1 (D.N.M. June 18, 2009)(Browning, J.)(quoting In re
Rains, 946 F.2d at 733).
[S]trong policies favor resolution of disputes on their
merits: [T]he default 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
In re Rains, 946 F.2d at 732-33 (citations
omitted)(internal quotation marks omitted). See
Noland v. City of Albuquerque, 2009 WL 2424591, at
*1 (denying motion for default judgment, because the counsel
for the defendant City of Albuquerque “entered an
appearance three days after Noland filed his motion for
default judgment, ” and, thus, the Court could not
“reasonably say that the City of Albuquerque is an
essentially unresponsive party, that the adversary process
has been halted, or that Noland faces interminable delay
because of the City of Albuquerque's actions”).
court may set aside an entry of default for good cause, and
it may set aside a default judgment under Rule 60(b).”
Fed.R.Civ.P. 55(c). “[T]he good cause required by
Fed.R.Civ.P. 55(c) for setting aside entry of default poses a
lesser standard for the defaulting party than the excusable
neglect which must be shown for relief from judgment under
Fed.R.Civ.P. 60(b).” Pinson v. Equifax Credit Info.
Servs., Inc., 316 Fed.Appx. 744');">316 Fed.Appx. 744, 750 (10th Cir.
2009)(unpublished) (quoting Dennis Garberg & Assocs.,
Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 775 n.
6 (10th Cir. 1997)). The distinction between setting aside an
entry of default and setting aside a default judgment
“reflects the different consequences of the two events
and the different procedures that bring them about.”
10A Wright & Miller, supra, § 2692 at
[T]he clerk or the court may enter a default upon the
application of the nondefaulting party. The entry simply is
an official recognition of the fact that one party is in
default, as, for example, for failure to comply with the
rules, to appear as scheduled, or to prosecute the case with
due diligence. The entry is an interlocutory step that is
taken under Rule 55(a) in anticipation of a final judgment by
default under Rule 55(b).
In sharp contrast, a final default judgment is not possible
against a party in default until the measure of recovery has
been ascertained. This typically requires a hearing, in which
the defaulting party may participate; in some situations, a
jury trial may be made available to determine an issue of
damages. Moreover, the entry of a default judgment is a final
disposition of the case and an appealable order.
Additional differences between relief from the entry of a
default and from a default judgment appear in the grounds
that will support the grant of each motion. Stated generally,
the defaulting party is not entitled to relief from a
judgment as a matter of right under Rule 60(b). The movant
must present a justification supporting the relief motion and
must establish his contentions if challenged. Although
whether relief will be granted is a matter within the sound
discretion of the trial court, the vacation of a default
judgment is subject to the explicit provisions of Rule 60(b),
which places additional restraints upon the court's
discretion. In contrast, the motion to set aside ...