Gingerbread House Incorporated v. Montana Builders LLC et al
Filing
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ORDER granting 16 Motion for Entry of Default Judgment against Montana Builders, LLC, and Surety Partners, LLP, in the amount of $39,130.18, consisting of the principal sum of $37,605.50, $1094.68 for attorneys' fees, and $430.00 in costs. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Judge Paul G Rosenblatt on 3/28/12.(LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Gingerbread House, Inc.,
Plaintiffs,
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v.
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Montana Builders, LLC, et al.,
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Defendants.
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CV 11-8126-PCT-PGR
ORDER
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Before the Court is Plaintiff Gingerbread House’s motion for entry of default
judgment. (Doc. 16.)
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On August 17, 2009, Defendant Montana Builders entered into a contract with the
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United States to furnish materials and perform labor for the construction of the Pine Flat
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Camp Ground Project. (Doc. 1, ¶ III.) On August 26, 2009, Montana Builders, as principal,
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and Defendant Surety Partners delivered their bond to the United States as required by the
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Miller Act, 40 U.S.C. § 3133. (Id., ¶ VI.) On October 6, 2009, Gingerbread House entered
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into a contract with Montana Builders. (Id., ¶ VII.)
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Gingerbread House furnished labor and equipment under the contract. (Id., ¶ VIII.)
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The reasonable and agreed value of such labor was $281,329, of which Montana Builders has
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paid $250,745, leaving a balance due of $30,584. (Id.) Gingerbread House performed extra
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labor and provided additional materials with a reasonable value of $7,021.50, which Montana
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Builders has not paid. Payment was due August 20, 2010. (Id.)
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On August 15, 2011, Gingerbread House filed a complaint under the Miller Act. (Doc.
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1.) Defendants failed to answer and on December 2, 2011, default was entered under Federal
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Rule of Civil Procedure 55(a). (Doc. 14.) Gingerbread House now moves for default
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judgment. (Doc. 16.)
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After a default has been entered and the defendant fails to appear or move to set aside
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the default under Rule 55(c), the Court may, on the plaintiff’s motion, enter a default
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judgment. Fed. R. Civ. P. 55(b)(2). Granting default judgment is within the Court’s sound
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discretion. See Albade v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The Court may
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consider such factors as the possibility of prejudice to the plaintiff, the merits of the
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substantive claim, the sufficiency of the complaint, the sum of money at stake, the possibility
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of a dispute concerning material facts, whether the default was due to excusable neglect, and
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the policy favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471–72
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(9th Cir. 1986).
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In considering these factors, all factual allegations in the plaintiff’s complaint are
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taken as true, except those relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d
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915, 917–18 (9th Cir. 1987). A plaintiff is required to prove all damages sought in the
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complaint.
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Taking the allegations in the complaint as true, as required by Defendants’ default,
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the Court finds that Gingerbread House is entitled to default judgment under the factors set
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forth in Eitel, 782 F.2d at 1471–72. The claim is meritorious. Gingerbread House will be
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prejudiced and potentially left without recourse for recovery if default judgment is denied.
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There are no disputes concerning the relevant facts. It is unlikely that Defendants’ default is
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the result of excusable neglect.
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Gingerbread House seeks judgment of in the amount of $39,130.18, consisting of the
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principal sum of $37,605.50, $1094.68 for attorneys’ fees, and $430.00 in costs. (Doc. 16.)
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In support, Gingerbread House has submitted counsel’s affidavit and statements of costs and
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fees. (Docs. 12, 13, Exs. 1, 2.) The Court finds that these amounts are reasonably calculated
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and sufficient to prove Plaintiff’s damages.
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Accordingly,
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IT IS ORDERED granting Gingerbread House’s motion for entry of default judgment
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(Doc. 16) against Montana Builders, LLC, and Surety Partners, LLP, in the amount of
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$39,130.18, consisting of the principal sum of $37,605.50, $1094.68 for attorneys’ fees, and
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$430.00 in costs.
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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 28th day of March, 2012.
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