United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before me pursuant to the Court's Order of
Reference (doc. 15), referring Plaintiff's Motion for
Entry of Default Judgment (doc. 13) to me for analysis,
proposed findings, and recommended disposition. Having
reviewed the motion and Plaintiff's Complaint (doc. 1), I
recommend that the Court DENY Plaintiff's Motion and
DISMISS Plaintiff's Complaint WITHOUT PREJUDICE.
October 15, 2019, Plaintiff filed a Complaint for Money Owed
against all Defendants. Doc. 1. Plaintiff alleges that it
“provided goods and medical supplies to
Defendants.” Id. at 2. Plaintiff alleges that
Defendant Fiesta Park Healthcare, LLC owes Plaintiff $81,
317.97; that Defendant WW Healthcare, LLC owes Plaintiff
$138, 063.23; and that Defendant Rehab Suites at Las
Estancias, LLC owes Plaintiff $91, 009.88. Id.
Defendants were served by October 30, 2019. Docs. 7-9. Under
Federal Rule of Civil Procedure 12(a)(1)(A)(i), Defendants
were required to answer Plaintiff's complaint by November
20, 2019. On December 3, 2019, having received no answer from
any Defendant, Plaintiff requested the clerk's entry of
default. Doc. 10. The clerk of court entered default on
December 23, 2019. Doc. 11. Plaintiff then filed this motion
for default judgment pursuant to Federal Rule of Civil
Procedure 55(b)(2). Doc. 13.
of default judgment “is committed to the sound
discretion of the district court.” Tripodi v.
Welch, 810 F.3d 761, 764 (10th Cir. 2016). However, a
default judgment may be vacated if the pleadings are
insufficient to support it. Bixler v. Foster, 596
F.3d 751, 762 (10th Cir. 2010). Before entering default
judgment, the Court must make a threshold determination that
it has jurisdiction over Defendants. Dennis Garberg &
Assocs., Inc. v. Pack-Tech Int'l Corp., 115 F.3d
767, 771 (10th Cir. 1997).
a default judgment is handed down, a defendant admits to a
complaint's well-pleaded facts and forfeits his or her
ability to contest those facts.” Tripodi, 810
F.3d at 764 (citation omitted). However, “a party in
default does not admit mere conclusions of law.”
Bixler, 596 F.3d at 762 (citation omitted). The
Court must consider whether the well-pleaded facts constitute
a legitimate cause of action. Id. The Court may not
enter default judgment on claims that are subject to
dismissal under Federal Rule of Civil Procedure 12(b)(6).
Bixler, 596 F.3d at 762.
the Court may not enter default judgment for the amount of
damages claimed without a hearing, unless the damages are
liquidated or capable of mathematical calculation.
Venable v. Haislip, 721 F.2d 297, 300 (10th Cir.
threshold matter, I note that the Court has jurisdiction over
Defendants. The Court has personal jurisdiction, as all the
Defendants are entities incorporated in New Mexico. See
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). The
Court has subject matter jurisdiction under 28 U.S.C. §
1332, which requires complete diversity and an amount in
controversy exceeding $75, 000. Symes v. Harris, 472
F.3d 754, 758 (10th Cir. 2006). Plaintiff has its place of
incorporation and principal place of business in Illinois.
All Defendants have their place of incorporation and
principal place of business in New Mexico. Doc. 1 at
2. Thus, complete diversity of citizenship exists between the
parties. Plaintiff claims it is owed an amount over $75, 000
by each Defendant, thus the requisite amount in controversy
complaint sounds in contract. The basic elements of a breach
of contract claim are (1) a valid contract, (2) breach of the
contract, and (3) damages. Alderete v. City of
Albuquerque, 2015 WL 1143085, at *1 (N.M. Ct. App. Feb.
23, 2015) (unpublished) (citing Constr. Contracting &
Mgmt., Inc. v. McConnell, 815 P.2d 1161 (N.M. 1991)). A
valid contract exists where there is offer, acceptance,
consideration, and mutual assent. Heye v. Am. Golf Corp.,
Inc., 80 P.3d 495, 498 (N.M. Ct. App. 2003) (citations
omitted). Acceptance requires a “manifestation of
unconditional agreement to all of the terms of the offer and
an intention to be bound thereby.” Stevenson v.
Louis Dreyfus Corp., 811 P.2d 1308, 1310 (N.M. 1991)
(citation omitted). Under New Mexico's Statute of Frauds,
a contract for the sale of goods of $500 or more is not
enforceable “unless there is some writing sufficient to
indicate that a contract for sale has been made between the
parties and signed by the party against whom enforcement is
sought….” NMSA 1978, § 55-2-201(1).
Additionally, a contract for the sale of goods must specify a
quantity term. Elephant Butte Resort Marina, Inc. v.
Wooldridge, 694 P.2d 1351, 1354 (N.M. 1985) (citing NMSA
1978, § 55-2-201(1)).
does not attach a contract to its complaint or otherwise
allege the existence of a written contract. See generally
doc. 1. None of the documents attached by Plaintiff are
signed by any Defendant. According to the invoices attached
by Plaintiff, many of the goods delivered to Defendants were
above $500, thus writings signed by Defendants are required.
A contract that fails to meet the requirement of a signed
writing may nonetheless be enforceable “with respect to
goods … which have been received and accepted.”
Id. § 55-2-201(3)(c). However, Plaintiff fails
to identify what goods were received by Defendants and in
what quantity, as the invoices provide only internal
reference numbers. Plaintiff also fails to allege whether the
goods were accepted by Defendants. Thus, Plaintiff has failed
to adequately allege a valid contract.
breach, Plaintiff merely asserts that Defendants owe
Plaintiff certain sums of money. Even assuming that
Plaintiff's provision of “goods and medical
supplies” to Defendants constitutes a valid contract,
Plaintiff has failed to establish that Defendants breached
any specific term of the contract. Plaintiff has not provided
any indication of the terms of payment agreed between the
parties, including the due date for any payment. In short,