United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
above-entitled civil action is before the Court on Plaintiff
Adrian Cain's Motion for Default Judgment (the
"Motion"). (Doc. 28). Cain seeks a judgment by
default against Defendants Consumers Solutions Group, LLC
("CSG") and Jonathan C. Frank & Associates, LLC
filed the complaint in this action on December 19, 2016.
(Doc. 1). She filed her Amended Complaint on August 18, 2017.
(Doc. 27). In her Amended Complaint, Cain alleges that the
Defendants violated the Fair Debt Collection Practices Act.
(Id. at 2-6).
served on December 21, 2016. (Doc. 6). On January 24, 2017,
after CSG failed to appear, answer, or otherwise defend, Cain
filed a Motion for Entry of Default. (Doc. 10). The Clerk
filed the Entry of Default against CSG on January 25, 2017.
Frank was served on May 2, 2017. (Doc. 19). On May 24, 2017,
after Jonathan Frank failed to appear, answer, or otherwise
defend, Cain filed a Motion for Entry of Default. (Doc. 20).
The Clerk filed the Entry of Default against Jonathan Frank
on May 26, 2017. (Doc. 22).
August 4, 2017, Cain moved to dismiss his class claims
against CSG. (Doc. 25). The Court then ordered Cain "to
file an amended complaint that eliminates the class
allegations in Count IV." (Doc. 26 at 3). Cain was
instructed to seek leave from the Court to make any
other changes. (See id.). Cain filed her
Amended Complaint on August 18, 2017. (Doc. 27). She filed
her Motion for Default Judgment that is the subject of this
memorandum opinion and order on February 15, 2018. (Doc. 28).
As support for the Motion for Default Judgment, Cain
submitted an affidavit. (Doc. 28-2).
reasons stated in this opinion, the Motion is due to be
GRANTED in part and otherwise
The Defendants' Failed To Move To Set Aside the Entry of
Court ordered the Defendants to show cause by April 11, 2018,
why the motion should not be granted. (Doc. 29). The Court
received an opposition to Cain's Motion on May 4, 2018.
(Doc. 36). As outlined in this Court's memorandum opinion
and order from May 8, 2018, this opposition was untimely,
inadequate, and improper. (Doc. 37). The Court's opinion
laid out a detailed explanation of the inadequacies of the
opposition. (Id. at 4-6). However, out of an
abundance of caution, the Court gave the Defendants an
additional seven days from May 8, 2018, to enter the
appearance of an attorney admitted to practice in the
Northern District of Alabama and to move the Court to set
aside the entry of default. (Id. at 7). Those seven
days have come and gone with no response- further showing
that the Defendants have no serious intention of defending in
this action. Accordingly, the following opinion is due to be
The Motion for Default Judgment Is Due To Be Granted
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
(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 hearings or make
referrals-preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to:
conduct an accounting;
(B) determine the amount of damages;
establish the truth of any allegation by evidence; or
(D) investigate any other matter.
default has been entered against the Defendants, the
allegations of Cain's Amended Complaint are taken as
true. See 10A Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure §
2688 (3d ed. 1998) ("If the court determines that
defendant is in default, the factual allegations of the
complaint, except those relating to the amount of damages,
will be taken as true.").
Court's analysis of Cain's Motion for Default
Judgment involves a two-step process. First, the Court must
satisfy itself that it has jurisdiction over the parties and
the subject matter of the lawsuit. See Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (holding
that district courts "always have an obligation to
examine sua sponte their jurisdiction before
reaching the merits of any claim"). Second, the Court
must ensure that Cain has satisfied the elements of Rule 55
and is entitled to the default judgment it seeks. See
Nishimatsu Constr. Co v. Houston Nat 7 Bank,
515 F.2d 1200, 1206 (5th Cir. 1975) (explaining that "a
defendant's default does not in itself warrant the court
entering a default judgment" and that "[t]here must
be a sufficient basis in the pleadings for the judgment