Big O Tires, LLC v. Black Toad Enterprises, LLC et al

Filing 58

ORDER on 56 Motion to Quantify Default Judgment by Judge Raymond P. Moore on 11/21/14. Plaintiff is entitled to $200,130.46 in amounts due and owing, to $5000 in damages for failure to return the Big O Manual and $782.78 in costs t o remove the Big O signage, to prejudgment interest of $29,347.95, and to costs and fees of $19,176.29. Default judgment shall be entered against Defendant Black Toad Enterprises, LLC in the amount of $254,437.48 plus post-judgment interest. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-00824-RM-MJW
BIG O TIRES, LLC, a Nevada limited liability company,
Plaintiff,
v.
BLACK TOAD ENTERPRISES, LCC, an Arizona limited liability company,
DANIEL E. GROMAN,
KELLE C. GROMAN,
JAMES R. GROMAN, and
CECILIA GROMAN,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Plaintiff’s Motion to Quantify Default Judgment (the
“Motion”) (ECF No. 56). The Court has already entered an Order in this case directing the Clerk
of the Court to enter default judgment against Black Toad Enterprises, LLC (“Black Toad”), and
default judgment has been entered (ECF Nos. 49, 50, 51). No amount of default judgment was
entered. The Motion was filed by Plaintiff Big O Tires, LLC (“Big O”) “in order to provide the
Court with the proper amount to be entered by default judgment against Black Toad.” (ECF No.
53 at 3.) To date, no response has been filed to the Motion, and Black Toad has made no other
attempts to object to the ruling or to Big O’s calculations of what they should recover.
Default judgment may enter against a party who fails to appear or otherwise defend a
lawsuit. Fed. R. Civ. P. 55. “[D]efault judgment must normally be viewed as available only
when the adversary process has been halted because of an essentially unresponsive party. In that
instance, the diligent party must be protected lest he be faced with interminable delay and

continued uncertainty as to his rights. The default judgment remedy serves as such a protection.”
In re Rains, 946 F.2d 731, 732-33 (10th Cir. 1991) (internal citation omitted). “[A] party is not
entitled to a default judgment as of right; rather the entry of a default judgment is entrusted to the
sound judicial discretion of the court.” Greenwich Ins. Co. v. Daniel Law Firm, No. 07-cv-2445,
n, at *2 (D. Colo. Mar. 22, 2008) (internal citation omitted). Once the Court is satisfied that
default judgment should be entered, it has the discretion to hold a hearing to determine the
amount of damages. See Fed. R. Civ. Pro. 55(b)(2). Generally, a damages hearing is not needed
when the damages requested are for a sum certain. See United States v. Craighead, 176 F. App’x
922, 925 (10th Cir. 2006).
Big O filed a Declaration by the Vice President of Financial Operations of Big O (the
“Declaration”) declaring that Big O incurred the following damages: $200,130.46 in amounts
due as royalties and accounts receivables pursuant to the Agreement; $5000 in damages for
failure to retain the Big O Manual and other proprietary information; $782.78 in damages for
costs to Big O to remove all Big O trade dress and related material at the premises. (ECF No.
56-1 at 3.) The Court finds that Big O has supplied adequate proof of its damages for a sum
certain through the Declaration and other evidence and default judgment shall be entered for the
sum certain damages in the amount of $200,130.46.
Big O has also requested pre-judgment interest and has provided the Court with specific
and calculated pre-judgment interest amounts with supporting authority. Big O’s request for prejudgment interest is allowed and will be awarded based on the $101.55 per diem rate calculated
in the Motion, for a total amount of $29,347.95. (See ECF No. 57 at 2 (calculating “$23,559.60
in prejudgment interest pursuant to the Franchise Agreement through September 26, 2014,” and

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