Schmidt v. Suschinsky

Filing 19

ORDER Plaintiff's Motion for Entry of Default Judgment for a Sum Certain [Doc. 18 ] is DENIED without prejudice. The Clerks Entry of Default [Doc. 16 ] is VACATED. Plaintiff shall FILE an Amended Complaint that cures the deficiencies identifie d in this Order on or before January 22, 2025. Plaintiff shall provide, through formal service or other means allowable under the Federal Rules of Civil Procedure, a copy of the Amended Complaint to Defendant no later than 14 days after its filing. Plaintiff is ADVISED that the failure to file an Amended Complaint that cures the deficiencies identified in this Order by the Court-ordered deadline may result in the Court's sua sponte dismissal of this action pursuant to Rule 8 of the Federal Rules of Civil Procedure. By Judge Nina Y. Wang on 1/8/2025.(norlin, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-01934-NYW-MDB
KENNETH SCHMIDT,
v.

Plaintiff,

JAMES SUSCHINSKY, and
DOES 1–10,
Defendants.
ORDER
Pending before the Court is the Motion for Entry of Default Judgment for a Sum
Certain (the “Motion” or “Motion for Default Judgment”), [Doc. 18], in which Plaintiff
Kenneth Schmidt (“Plaintiff”) requests that this Court enter default judgment against
Defendant James Suschinsky (“Defendant” or “Mr. Suschinsky”) pursuant to Rule
55(b)(1) of the Federal Rules of Civil Procedure. Upon review of the Motion, the record
before the Court, and the applicable case law, the Motion for Default Judgment is
respectfully DENIED without prejudice.
BACKGROUND
At some undefined point, Plaintiff and Defendant had a written contractual
relationship regarding a “purported investment opportunity.” [Doc. 2 at ¶¶ 8, 26]. The
Complaint lacks any additional temporal or contextual detail regarding the nature of the
Parties’ contract. See generally [id.]. Even so, Plaintiff’s Complaint asserts claims for
breach of contract, unjust enrichment, conversion, fraud, and punitive damages against

Defendant. [Id. at ¶¶ 8–37]. In the Complaint’s Prayer for Relief, Plaintiff seeks an award
of $102,000.00, as the “amount payable under the Contract,” plus interest, [id. at 6 ¶¶ (a)–
(b)]; attorney’s fees “pursuant to the Contract,” [id. at 6 ¶ (c)]; and punitive damages of
“not less than thirty thousand dollars,” [id. at 6 ¶ (d)].
Plaintiff initiated this matter on August 2, 2023.

See generally [id.].

In the

summons request submitted by Plaintiff, [Doc. 8], and the summons issued by the Clerk
of Court, [Doc. 9], Defendant’s address is listed as 292 W. Palomar Circle, Pueblo West,
Colorado 81007 (the “Pueblo West address”). On October 25, 2023, Plaintiff filed an
executed summons purporting to demonstrate service upon Defendant James
Suschinsky. [Doc. 13]. The proof of service indicated that a process server delivered the
summons to Monica Minx (“Ms. Minx”), who identified herself as Defendant’s “spouse [or]
co-resident,” at a residence located at 760 Chris Court, Canon City, Colorado 81212 (the
“Canon City address”), on October 7, 2023. [Id. at 1].
On December 10, 2023, Plaintiff requested that the Clerk of Court enter default
against Mr. Suschinsky pursuant to Federal Rule of Civil Procedure 55(a). [Doc. 15].
Plaintiff’s counsel submitted an affidavit in support of Plaintiff’s Motion for Entry of Clerk’s
Default, averring that copies of the summons and Complaint were served on October 7,
2023—as purportedly demonstrated by the proof of service filed on the docket and
attached as an exhibit to the Motion for Entry of Clerk’s Default—and that Defendant had
failed to timely appear or otherwise defend. [Doc. 15-3 at ¶¶ 6–7]. The Clerk of Court
entered default on December 11, 2023, [Doc. 16], and Plaintiff subsequently moved for
default judgment against Defendant, [Doc. 18].

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LEGAL STANDARD
Default judgment may be entered against a party who fails to appear or otherwise
defend. Fed. R. Civ. P. 55. To obtain a judgment by default, the moving party must follow
the two-step process described in Rule 55: “[F]irst, he or she 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).”
Richfield Hosp., Inc. v. Shubh Hotels Detroit, LLC, No. 10-cv-00526-PAB-MJW, 2011 WL
3799031, at *2 (D. Colo. Aug. 26, 2011). A defendant who has defaulted is deemed to
have admitted the factual allegations of the complaint as true as well as the undisputed
facts alleged in affidavits and exhibits. Brill Gloria v. Sunlawn, Inc., No. 08-cv-00211MSK-MEH, 2009 WL 416467, at *2 (D. Colo. Feb. 18, 2009); see also Deery Am. Corp. v.
Artco Equip. Sales, Inc., No. 06-cv-01684-EWN-CBS, 2007 WL 437762, at *3 (D. Colo.
Feb. 6, 2007).
As to the second step, this Court must, as a threshold matter, determine whether
it possesses jurisdiction over a given action. If the Court lacks jurisdiction—either subject
matter jurisdiction over the action, or personal jurisdiction over Defendant—default
judgment cannot enter. See Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th
Cir. 2011) (“A default judgment in a civil case is void if there is no personal jurisdiction
over the defendant.” (quotation omitted)); Dennis Garberg & Assocs., Inc. v. Pack-Tech
Int’l Corp., 115 F.3d 767, 772 (10th Cir. 1997) (“[W]hen entry of a default judgment is
sought against a party who has failed to plead or otherwise defend, the district court has
an affirmative duty to look into its jurisdiction both over the subject matter and the parties.”
(cleaned up)).

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If the Court indeed has jurisdiction over the matter and the Parties, it then must
consider whether the well-pleaded factual allegations in Plaintiff’s Complaint, [Doc. 2],
and any attendant affidavits or exhibits, see, e.g., [Doc. 18-1], support judgment on
Plaintiff’s breach of contract claim against Defendant, Bixler v. Foster, 596 F.3d 751, 762
(10th Cir. 2010); see also Magic Carpet Ski Lifts, Inc. v. S&A Co., No. 14-cv-02133-REBKLM, 2015 WL 4237950, at *5 (D. Colo. June 8, 2015) (“There must be a sufficient basis
in the pleadings for the judgment entered.” (quotation omitted)). 1 And, while modern rules
of pleading are somewhat forgiving, “a complaint still must contain either direct or
inferential allegations respecting all the material elements necessary to sustain a recovery
under some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.
2008) (quotation and citation omitted).
To obtain a default judgment for a sum certain under Rule 55(b)(1), the plaintiff
must show the following by affidavit: (1) that the party in default is not a minor or an
incompetent person, is not in military service, and has not made an appearance, see
D.C.COLO.LCivR 55.1(a)(1); and (2) that the sum is certain or can be made certain by
computation, see D.C.COLO.LCivR 55.1(a)(2). Whether to enter default judgment is a
decision “committed to the district court’s sound discretion.” Olcott v. Del. Flood Co., 327
F.3d 1115, 1124 (10th Cir. 2003) (quotation omitted).

1 The Court notes that Plaintiff’s Complaint asserts five claims for relief, whereas the

caption of the docket entry associated with the instant Motion refers to a “Motion for Entry
of Default as to breach of contract.” Compare [Doc. 2], with [Doc. 18]. This qualification,
however, does not appear anywhere else on the record. Ultimately, this issue is
nonconsequential given the Court’s denial of the Motion for Default Judgment.
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ANALYSIS
I.

Subject Matter Jurisdiction
Plaintiff invokes this Court’s diversity jurisdiction under 28 U.S.C. § 1332(a) based

on complete diversity of the Parties and the amount in controversy exceeding $75,000.
[Doc. 2 at ¶¶ 1–6]. Pursuant to 28 U.S.C. § 1332(a), “district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.”
For purposes of diversity, Plaintiff and Defendant take on the citizenship of their
respective states of domicile. Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir.
2014). Based on the averments that Plaintiff is a citizen of California who resides at
14720 Raritan Dr., Whittier, California, [Doc. 2 at ¶¶ 2, 5], and Defendant is a citizen of
Colorado who resides at 292 W. Palomar Circle, Pueblo West, Colorado, [id. at ¶¶ 3, 6],
this Court finds that Plaintiff and Defendant are citizens of California and Colorado,
respectively. Thus, complete diversity exists. See Grynberg v. Kinder Morgan Energy
Partners, L.P., 805 F.3d 901, 905 (10th Cir. 2015) (“Diversity jurisdiction requires
complete diversity—no plaintiff may be a citizen of the same state as any defendant.”).
As to the amount in controversy, Plaintiff alleges that the amount in controversy is
$102,000, thus exceeding the $75,000 threshold. [Doc. 2 at ¶ 4; Doc. 18-1]. Accordingly,
based on the record before it, the Court finds that it has subject matter jurisdiction over
this action. See McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008).
II.

Personal Jurisdiction
The entry of default judgment in a civil action requires personal jurisdiction over

the defaulting defendant. Marcus Food, 671 F.3d at 1166 (“A default judgment in a civil
case is void if there is no personal jurisdiction over the defendant.”). However, service of
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process is a procedural prerequisite to the exercise of personal jurisdiction over a
defendant. See Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)
(“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.”); Okla. Radio Assocs.
v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992) (“[S]ervice of process provides the
mechanism by which a court having venue and jurisdiction over the subject matter of an
action asserts jurisdiction over the person of the party served.”). Thus, the Court must
first address the adequacy of service of process.
As previously discussed, the Complaint identifies Mr. Suschinsky as an individual
who resides at the Pueblo West address. [Doc. 2 at ¶ 6]. Service of individuals is
governed by Rule 4(e) of the Federal Rules of Civil Procedure. Rule 4(e)(2) contemplates
three ways in which a plaintiff may serve process on an individual located within the
United States: (1) “delivering a copy of the summons and of the complaint to the individual
personally;” (2) “leaving a copy of [the summons and complaint] at the individual’s
dwelling or usual place of abode with someone of suitable age and discretion who resides
there;” or (3) “delivering a copy of [the summons and complaint] to an agent authorized
by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e)(2). Rule
4(e)(1) provides an alternative means of service by “following state law for serving a
summons in an action brought in courts of general jurisdiction” in the forum state. Fed.
R. Civ. P. 4(e)(1).
Colorado, the forum state in this case, authorizes service of a natural person above
the age of eighteen by (1) serving the individual personally; (2) delivering a copy of the
summons and complaint to the individual’s authorized representative; (3) leaving a copy

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of the summons and complaint “at the person’s usual place of abode, with any person
whose age is eighteen years or older and who is a member of the person’s family;” or
(4) “at the person’s usual workplace . . . .” Colo. R. Civ. P. 4(e)(1).
Here, Plaintiff has not adequately established service of process on Defendant
under any method contemplated by Rule 4(e). The proof of service indicates that the
process server
left the summons at the individual’s residence or usual place of abode with
Monica Minx, a person of suitable age and discretion who resides at 760
CHRIS CT, CANON CITY, CO 81212, on 10/07/2023 at 2:13 PM, and
mailed a copy to the individual’s last known address.
[Doc. 13 at 1]. It also indicates that Ms. Minx identified herself as Mr. Suschinsky’s
“spouse [or] co-resident,” and “appeared to be a . . . female contact.” [Id. (emphasis
omitted)]. According to the process server, Ms. Minx “confirmed” her identity by “stating
[her] name,” and “accepted service [on Defendant’s behalf] with direct delivery.” [Id.].
The record fails to demonstrate that Plaintiff’s attempt to serve Defendant, through
the delivery of documents to Ms. Minx at the Canon City address, meets the requirements
of Rule 4(e). Specifically, nothing in the record supports the conclusion that the Canon
City address is Mr. Suschinsky’s residence or “usual place of abode.” Cf. Fed. R. Civ. P.
4(e)(2)(B). Indeed, the Canon City address is not the address identified in the Complaint,
summons request, and summons issued by the Clerk of Court. Compare [Doc. 2 at ¶ 6
(“Defendant, James Suschinsky, a Colorado citizen [sic] resides at 292 W Palomar Circle,
Pueblo West, Colorado 81007.”)], and [Doc. 8 at 1 (summons request addressed to Mr.
Suschinsky at the Pueblo West address)], and [Doc. 9 at 1 (summons addressed to Mr.
Suschinsky at the Pueblo West address)], with [Doc. 13 at 1 (proof of service indicating
that process server left summons with Ms. Minx at the Canon City address, identified as

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Defendant’s purported “residence or usual place of abode”]. The record similarly lacks
any evidence that the Canon City address constitutes Mr. Suschinsky’s “usual
workplace,” see Colo. R. Civ. P. 4(e)(1), and there is nothing to suggest that Ms. Minx is
an agent authorized to receive service of process on Mr. Suschinsky’s behalf at that
Canon City address, see id.; Fed. R. Civ. P. 4(e)(2)(C).
Without additional information, the Court cannot determine whether personal
service of Ms. Minx at the Canon City address constituted effective service of Mr.
Suschinsky. See Barak v. Rooster’s Guide & Outfitting Adventures, No. 19-cv-03556RM-GPG, 2020 WL 9424264, at *3 (D. Colo. April 28, 2020) (finding service insufficient
under Colo. R. Civ. P. 4(e)(1) where process server merely left summons and complaint
with an individual located at defendant’s place of business and nothing in the record
suggested that the individual was an appropriate person to receive service on behalf of
defendant); Austin v. Robinson, No. 22-cv-00823-RMR-MDB, 2023 WL 1069488, at *3–
5 (D. Colo. Jan. 27, 2023) (finding service of defendant insufficient where process server
left summons with individual other than defendant at address that did not appear to be
defendant’s dwelling, usual place of abode, or usual workplace), report and
recommendation adopted, 2023 WL 2570244 (D. Colo. Feb. 16, 2023), appeal dismissed,
No. 23-1080, 2023 WL 5960182 (10th Cir. Apr. 20, 2023).
Because Plaintiff has not shown that Mr. Suschinsky was properly served with a
copy of the summons and Complaint, this Court cannot—without more—exercise
personal jurisdiction over Defendant. See Omni, 484 U.S. at 104 (“Before a federal court
may exercise personal jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied.”).

Accordingly, Plaintiff’s Motion for Default

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Judgment is respectfully DENIED without prejudice. See Hukill v. Okla. Native Am.
Domestic Violence Coal., 542 F.3d 794, 802 (10th Cir. 2008) (reversing district court’s
refusal to set aside a default judgment due to ineffective service of summons and
complaint); see also Pumphrey v. Wood, 628 F. App’x 615, 616 (10th Cir. 2016) (affirming
the denial of plaintiff’s motion for default judgment for lack of service).
The Court also finds it appropriate to vacate the Clerk’s Entry of Default because
courts “may set aside an entry of default for good cause,” Fed. R. Civ. P. 55(c), and
“procedural deficiencies such as inadequate service . . . or lack of personal jurisdiction
constitute good cause allowing an entry of default to be set aside,” Kriston v. Peroulis,
No. 09-cv-00909-MSK-MEH, 2010 WL 11553397, at *2 (D. Colo. Oct. 28, 2010). Thus,
the Clerk’s Entry of Default is VACATED. See Maes v. Bland, No. 18-cv-00052-PABNYW, 2019 WL 4187528, at *3 (D. Colo. Sept. 3, 2019) (vacating entry of default pursuant
to Fed. R. Civ. P. 55(a) because there was “no indication that [the defendant] was properly
served”).
III.

Rule 8 Pleading Requirements
In addition, upon review of the Complaint, the Court sua sponte addresses

Plaintiff’s failure to satisfy the pleading requirements of Rule 8. Rule 8(a) of the Federal
Rules of Civil Procedure provides that a complaint must contain (1) a short and plain
statement of the grounds for the Court’s jurisdiction; (2) a short and plain statement of
any claim showing that the pleader is entitled to relief; and (3) a demand for the relief
sought. Fed. R. Civ. P. 8(a). Rule 8(d)(1) requires that “[e]ach allegation must be simple,
concise, and direct.” Fed. R. Civ. P. 8(d)(1). “Taken together, Rules 8(a) and (d)(1)
underscore the emphasis placed on clarity and brevity by the federal pleading rules.

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Prolix, vague, or unintelligible pleadings violate Rule 8.” Gravley v. Hunter, No. 18-cv00171-GPG, 2018 WL 10320585, at *1 (D. Colo. Apr. 6, 2018). The twin purposes of a
pleading are to (1) give the opposing party fair notice of the basis for the claims against it
so that it may respond, and (2) allow the Court to conclude that the allegations, if proven,
show that the plaintiff is entitled to relief. See Monument Builders of Greater Kan. City,
Inc. v. Am. Cemetery Ass’n of Kan., 891 F.2d 1473, 1480 (10th Cir. 1989).
Plaintiff’s Complaint fails to comply with the requirements of Rule 8. Specifically,
although the Complaint contains a general reference to a contract between the Parties
and wrongful conduct on the part of Defendant, the Complaint does not include any
supporting factual allegations. For example, the Complaint does not include supporting
factual averments identifying any specific contract between the Parties, much less
specific contractual terms, nor does the Complaint include any factual allegations
describing the nature, timing, or extent of Defendant’s alleged wrongful conduct. See
generally [Doc. 2]. The Court cannot assume the existence of facts that are not alleged.
See Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
While “the pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “[T]o state a claim in federal court, a complaint
must explain what each defendant did to [the plaintiff]; when the defendant did it; how the
defendant’s action harmed [the plaintiff]; and[] what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir. 2007). Thus, insofar as the Complaint fails to assert any factual

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allegations to support Plaintiff’s claims, it fails to meet the requirements of Rule 8. See
Staats v. Cobb, No. 5:11-cv-00417-D, 2011 WL 9133921, at *1 (W.D. Okla. Apr. 26, 2011)
(“A pleading must include facts sufficient to provide the opposing party with fair notice of
what the claim is and the grounds upon which it rests.” (emphasis added)).
Accordingly, Plaintiff is ORDERED to file an Amended Complaint that cures the
deficiencies identified in this Order on or before January 22, 2025. To comply with Rule
8, Plaintiff must provide a clear, concise statement of specific facts that supports each
asserted claim. Plaintiff is expressly ADVISED that the failure to file an Amended
Complaint by the Court-ordered deadline that cures the deficiencies identified in
this Order may result in the Court dismissing this action without prejudice
pursuant to Rule 8. See Rodriguez v. Nationwide Homes, Inc., 756 F. App’x 782, 785
(10th Cir. 2018) (“If a complaint fails to meet the[] basic pleading requirements, a district
court may dismiss the action sua sponte for failure to comply with Rule 8.”). In addition,
Plaintiff must properly provide—through formal service or other means allowable under
the Federal Rules of Civil Procedure—a copy of the Amended Complaint to Defendant
no later than 14 days after its filing.
CONCLUSION
For the foregoing reasons, it is ORDERED that:
(1)

Plaintiff’s Motion for Entry of Default Judgment for a Sum Certain [Doc. 18]
is DENIED without prejudice;

(2)

The Clerk’s Entry of Default [Doc. 16] is VACATED;

(3)

Plaintiff shall FILE an Amended Complaint that cures the deficiencies
identified in this Order on or before January 22, 2025;

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(4)

Plaintiff shall provide, through formal service or other means allowable
under the Federal Rules of Civil Procedure, a copy of the Amended
Complaint to Defendant no later than 14 days after its filing; and

(5)

Plaintiff is ADVISED that the failure to file an Amended Complaint that cures
the deficiencies identified in this Order by the Court-ordered deadline may
result in the Court’s sua sponte dismissal of this action pursuant to Rule 8
of the Federal Rules of Civil Procedure.

DATED: January 8, 2025

BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge

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