United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER.
VIRGINIA EMERSON HOPKINS United States District Judge.
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.
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.
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).
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).
Standards and Analysis
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 ...