Hush Little Baby, LLC v. Chapman et al

Filing 21

ORDER denying without prejudice 16 Motion for Default Judgment, and directing Plaintiff to file an Amended Complaint which identifies all members of Plaintiff Hush Little Baby, LLC and alleges their citizenship, within fourteen days. Signed by Judge Elizabeth A. Kovachevich on 3/24/2015. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HUSH LITTLE BABY, LLC,
etc.,
Plaintiff,
v.

CASE NO. 8:13-CV-2027-T-17AEP

CHERI CHAPMAN,
et., et al.,
Defendants.
/

ORDER
This cause is before the Court on:
Dkt. 16

Motion for Default Judgment for Unliquidated Damages
Against Defendant Cheri Chapman

Plaintiff Hush Little Baby, LLC (“HLB”) moves for a Default Judgment for
Unliquidated Damages Against Defendant Cheri Chapman.

In the Complaint, Plaintiff HLB includes the following claims:

Count I

Breach of Fiduciary Duty - Maryland Law - Chapman

Count II

Conspiracy to Tortiously Interfere with
Economic Relations - New York Law - All Defendants

Count III

Tortious Interference With Economic Relations Florida Law - All Defendants

Count IV

Extortion - Florida Law - Chapman

Count V

Defamation - Maryland Law - Chapman

Case No. 8:13-CV-2027-T-17AEP
Count VI

Unfair Trade Practices - Maryland Law and New York Law All Defendants

Count VII

Theft of Property - Maryland Law - Chapman

Plaintiff HLB states that Plaintiff obtained service on Defendant Chapman on
February 1, 2014, Defendant Chapman did not file an Answer or any other responsive
pleading to the Complaint within the time permitted, by March 1, 2014. Plaintiff HLB
states that Plaintiff HLB is entitled to entry of a default judgment against Defendant
Chapman on Counts 1 through 7 of the Complaint, and Plaintiff has suffered
unliquidated damages in the amount of $136,350.00.

I. Jurisdiction
Plaintiff HLB alleges jurisdiction on the basis of diversity, 28 U.S.C. Sec. 1332,
because “plaintiffs are residents of a different state from the defendants and because
the value of the matter in controversy exceeds $75,000.”
Plaintiff HLB is “Hush Little Baby, LLC, c/o Haleigh Almquist, 6601 S. Westshore
Blvd., #2418, Tampa, FL, 33616.”
For the purposes of diversity jurisdiction, a limited liability company is a citizen of
any state of which a member of the company is a citizen. See Rolling Greens MHP.
L.P. v. Comcast SCH Holdings. L.L.C.. 374 F.3d 1020 (11th Cir. 2004). Plaintiff HLB
has the burden of establishing jurisdiction.
Plaintiff HLB alleges that Defendant Chapman is a citizen of the United States
and a resident of Maryland. In the Complaint, Plaintiff HLB does not identify all
members of the Plaintiff limited liability company or allege their citizenship, and the
Court cannot otherwise determine the other members and their citizenship from the

Case No. 8:13-CV-2027-T-17AEP
record. The Court therefore does not know if there is complete diversity.

After

consideration, the Court directs Plaintiff to file an Amended Complaint which identifies
all members of Plaintiff HLB and alleges their citizenship.

II. Untimely Response to Service of Complaint

The Court notes that Defendant Chapman did not file a response to service on
February 1, 2014 by March 1, 2014. However, after Plaintiff HLB filed a Motion for
Default Judgment, Defendant Chapman, gro se, entering a special appearance, filed a
Motion to Quash Service, and Motion for Dismissal with prejudice pursuant to Rule
4(m), Rule 12(b)(2), 12(b)(3) and 12(b)(5) on May 9, 2014.
Defendant Chapman moved for relief before the entry of a Clerk’s default; the
factual allegations of the Complaint have not been admitted.

In this Circuit, there is a

strong policy of deciding cases on the merits where reasonably possible. Perez v.
Wells Farao. N.A.. 774 F.3d 1329 (11th Cir. 2014).

III. Request for Award of Unliquidated Damages

A defendant, by his default, admits a plaintiffs well-pleaded allegations of fact, is
concluded on those facts by the judgment, and is barred from contesting on appeal the
facts thus established. Eagle H o s p . Physicians. LLC v. SRG Consulting. Inc.. 561 F.3d
1298,1308 (11th Cir. 2009). Under Florida law, a defendant still has the right to contest
unliquidated damages, but no other issue, once a default has been entered against
him. Banks v. SFRC Medical Dept. Officials. 2011 WL 900544 (S.D. Fla. 2011).
Plaintiff HLB did not move for entry of a Clerk’s default pursuant to Rule 55(a).
Plaintiff HLB moved for entry of a default judgment for unliquidated damages, based on
the affidavit of Haleigh Almquist. (Dkt. 16-4).

Case No. 8:13-CV-2027-T-17AEP
The Court has directed Plaintiff HLB to file an Amended Complaint.

Plaintiff

HLB may renew Plaintiff’s Motion for the Award of Unliquidated Damages after a Clerk’s
default has been entered. Accordingly, it is

ORDERED that Plaintiffs Motion for Default Judgment (Dkt. 16) is denied
without prejudice. Plaintiff HLB shall file an Amended Complaint which alleges all
members of Plaintiff HLB and their citizenship within fourteen days.

DONE and ORDERED in Chambers in Tampa, Florida on this
March, 2015.
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Copies to:
All parties and counsel of record

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