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Z Brothers LLC v. Lone Star Steakhouse

United States District Court, N.D. Alabama, Eastern Division

December 5, 2017

Z BROTHERS LLC, Plaintiff,
v.
LONE STAR STEAKHOUSE & SALOON OF ALABAMA, INC., Defendant.

          MEMORANDUM OPINION AND ORDER.

          VIRGINIA EMERSON HOPKINS United States District Judge.

         I. Introduction

         The above-entitled civil action is before the Court on Plaintiff Z Brothers LLC's Motion for Default Judgment. (Doc. 24). Z Brothers LLC seeks a judgment by default against Defendant Lone Star Steakhouse & Saloon of Alabama, Inc. (“Lone Star”) with respect to all claims alleged in its complaint.

         Z Brothers LLC filed the complaint in this action on March 29, 2017. (Doc. 1). Z Brothers LLC then filed its Amended Complaint on May 17, 2017. (Doc. 7). Z Brothers LLC is a landlord who rented property to Lone Star. (Id. at 2). In its Amended Complaint, Z Brothers LLC alleges three counts for breach of contract and one count for declaratory judgment. (Id. at 5-7). These counts arise from an alleged failure to pay rent, repair, and insure the subject property. (Id. at 1-5). As a result of these failures, Z Brothers LLC terminated the lease. (Id. at 5).

         The summons and Complaint were served on Lone Star on May 22, 2017. (Doc. 9). On July 10, 2017, after Lone Star failed to appear, answer, or otherwise defend, Z Brothers LLC filed a Motion for Entry of Default. (Doc. 20). The Clerk's Entry of Default against Lone Star occurred on July 18, 2017. (Doc. 22). Z Brothers LLC filed its Motion for Default Judgment on September 25, 2017. (Doc. 24).

         As support for its Motion for Default Judgment, Z Brothers LLC has submitted the affidavit of James P. Pewitt, the attorney of record for Z Brothers LLC. (Doc. 24-1). The affidavit establishes that “Lone Star is neither a minor nor an incompetent person.” (Id. at 4).

         II. Standards and Analysis

         Federal Rule of Civil Procedure 55 provides in pertinent part:

(a) Entering a Default. 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.


(b) Entering a Default Judgment.


. . .


(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct ...

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