CamRanger, LLC v. Doe

Filing 35

ORDER by Judge Philip A. Brimmer on 12/2/15. ORDERED: Plaintiff's Motion for Default Judgment 34 is GRANTED in part and DENIED in part. ORDERED: Judgment shall enter in favor of plaintiff CamRanger, LLC andagainst defendant Kathy A. Belser for actual damages of $30,405.75, trebled to a total amount of $91,217.25. ORDERED: ORDERED that this case is closed.(kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-00619-PAB-CBS
CAMRANGER, LLC, a Wyoming Limited Liability Company,
Plaintiff,
v.
KATHY A. BELSER, n/k/a Kathy A. Murray, an individual,
Defendant.

ORDER

This matter is before the Court on plaintiff CamRanger’s Motion for Default
Judgment [Docket No. 34].
I. PROCEDURAL BACKGROUND
Plaintiff filed suit against defendant on March 31, 2015. Docket No. 2. Plaintif f
served the amended complaint on defendant on July 19, 2015. Docket No. 19. On
August 28, 2015, after defendant failed to file a response, plaintiff filed a motion for
entry of default [Docket No. 25]. The clerk entered default on August 31, 2015. Docket
No. 26.
On September 22, 2015, plaintiff filed this motion for default judgment for
damages in the amount of $91,217.25, plus attorney’s fees in the amount of $5,275.00.
Docket No. 34. Plaintiff’s damages request includes a treble damages award pursuant
to Colo. Rev. Stat. § 18-4-405.

II. ANALYSIS
In order to obtain a judgment by default, a party must follow the two-step process
described in Federal Rule of Civil Procedure 55. First, it must seek an entry of default
from the Clerk of the Court under Rule 55(a). Second, after default has been entered
by the Clerk, the party must seek default judgment according to the strictures of Rule
55(b). See Williams v. Smithson, 1995 WL 365988, at *1 (10th Cir. June 20, 1995)
(unpublished) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).
The decision to enter default judgment is “‘committed to the district court’s sound
discretion.’” Olcott v. Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (citation
omitted). In exercising that discretion, the Court considers that “[s]trong policies favor
resolution of disputes on their merits.” Ruplinger v. Rains, 946 F.2d 731, 732 (10th Cir.
1991) (quotation marks and citations omitted). “The default judgment must normally be
viewed as available only when the adversary process has been halted because of an
essentially unresponsive party.” Id. It serves to protect a plaintiff against “interminable
delay and continued uncertainty as to his rights.” Id. at 733. When “ruling on a motion
for default judgment, the court may rely on detailed affidavits or documentary evidence
to determine the appropriate sum for the default judgment.” Seme v. E & H Prof’l Sec.
Co., Inc., No. 08-cv-01569-RPM-KMT, 2010 WL 1553786, at *11 (D. Colo. Mar. 19,
2010).
On August 28, 2015, plaintiff filed his Notice and Application for Entry of Default
Against Defendant Kathy Belser pursuant to Rule 55(a). Docket No. 25. Def ault was
entered against defendant on August 31, 2015. Docket No. 26. Plaintiff filed the

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necessary motion for default judgment on September 22, 2015. Docket No. 34. Thus,
plaintiff has followed the two-step process of Rule 55 necessary for default judgment.
Plaintiff alleges that, due to payee error, funds from three of its customers’
payments were mistakenly transferred electronically to defendant, who intentionally
misappropriated them. Docket No. 13 at 2-3, ¶¶ 9-14. Plaintiff alleges that these
transfers amount to $30,405.75. See id. at 2, ¶ 9. The Rights in Stolen Property
statute provides that the owner of property taken by theft, robbery or burglary may sue
the taker and recover treble damages, fees, and costs:
All property obtained by theft, robbery, or burglary shall be restored to the owner
. . . [who] may maintain an action . . . against the taker thereof. . . . In any such
action, the owner may recover two hundred dollars or three times the amount of
the actual damages sustained by him, whichever is greater, and may also
recover the costs of the action and reasonable attorney fees.
Colo. Rev. Stat. § 18-4-405. Recovery of treble damages under this statute is not
predicated upon proof of a criminal conviction, but only upon proof of a specified
criminal act. Itin v. Ungar, 17 P.3d 129, 134 (Colo. 2000). W hen plaintiff’s actual loss
of $30,405.75 is trebled, it amounts to $91,217.25.
In support of its request for attorney’s fees, plaintiff attaches the billing records of
Moritz Law, LLC. The records reflect 8.4 hours billed at a rate of $275.00 for attorney
“JAM.” However, there is no explanation for who JAM is. The only attorney who
entered his appearance in this case is Joseph Novak, who is mentioned as a “contract
attorney.” Mr. Novak’s time amounts to 13.5 hours or $2700. W hile $200 per hour
appears to be a reasonable hourly rate for handling the litigation, no breakdown of Mr.
Novak’s time is included. Local Rule 54.3(b) requires that a motion for attorney’s fees
shall include the following for each person for whom fees are claimed: (1) a summary of
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the relevant qualifications and experience; and (2) a detailed description of the services
rendered, the amount of time spent, the hourly rate charged, and the total amount
claimed. D.C.COLO.LCivR 54.3. The affidavits attached to plaintiff’s motion do not
explain JAM’s qualifications and experience and do not contain “detailed descriptions of
the services rendered” for Mr. Novak. The affidavits fail to describe what the $595.00 in
costs consists of, and the Court sees no reference to costs in the attached client ledger.
See Docket No. 34-4. Thus, plaintiff’s requests for attorney’s fees and costs, being
unsupported, is denied.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that plaintiff’s Motion for Default Judgment [Docket No. 34] is
GRANTED in part and DENIED in part. It is further
ORDERED that judgment shall enter in favor of plaintiff CamRanger, LLC and
against defendant Kathy A. Belser for actual damages of $30,405.75, trebled to a total
amount of $91,217.25. It is further
ORDERED that this case is closed.

DATED December 2, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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