Iguana, LLC v. Lanham et al

Filing 82

ORDER granting in part and denying in part 77 Motion for Entry of Default and to Hold Proof Hearing. Ordered by Judge Clay D. Land on 06/09/2009. (lra)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION IGUANA, LLC, Plaintiff, vs. PAUL E. LANHAM, an individual, CHARLES W. CALKINS, an individual, KILPATRICK STOCKTON, LLP, a limited liability partnership, H. DAVID COBB, an individual, FEDERAL MARKETING SERVICE CORPORATION, an Alabama corporation, MONTGOMERY MARKETING, INC., an Alabama corporation, and RANDALL J. LANHAM, an individual, Defendants. * * * * * * * * * * ORDER Presently pending before the Court is Plaintiff's Motion to Enter Default of Defendant Randall J. Lanham and Hold Proof Hearing (Doc. 77). For the following reasons, Plaintiff's motion is granted CASE NO. 7:08-CV-09(CDL)

in part and denied in part. DISCUSSION On January 21, 2009, Plaintiff Iguana, LLC filed a revised Second Amended Complaint in which Randall J. Lanham ("Randall") was a named Defendant. The revised Second Amended Complaint was served To date, Randall has failed to Therefore, the Clerk See

upon Randall on February 27, 2009. answer.

(Asman Decl. ¶ 12, Apr. 3, 2009.)

properly entered a default against Randall on April 6, 2009.

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Fed. R. Civ. P. 55(a).

The effect of the entry of a default is that

all of the factual allegations in the complaint are taken as true, except for the amount of unspecified damages. Because the amount of

damages due is not specified in the Second Amended Complaint, it will be necessary for the Court to determine the amount of damages upon receiving evidence of damages at an appropriate hearing. Fed. R.

Civ. P. 55(b)(2);1 see S.E.C. v. Smyth, 420 F.3d 1225, 1231-32 (11th Cir. 2005) ("[I]f an evidentiary hearing or other proceedings are necessary in order to determine what the judgment should provide, such as the amount of damages that the defaulting defendant must pay, those proceedings must be conducted before the judgment is

entered."). Therefore, judgment shall not be entered until the Court has made a determination as to the amount of damages Plaintiff should recover, if any. To conserve judicial resources, avoid inconsistent judgments, and assist the Court, the Court has concluded that it will submit the issue of the amount of Plaintiff's damages to the same jury that will hear the other claims in this action. that jury's advisory finding as to The Court will then consider the amount of damages in

determining the amount of the default judgment against Defendant Randall J. Lanham. The logistics of how that question will be

Federal Rule of Civil Procedure 55(b)(2) provides, in pertinent part, that a "court may conduct hearings or make referrals­preserving any f e de r al statutory right to a jury trial­when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter."

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presented to the jury will be finalized at the pretrial conference prior to trial. If this litigation terminates without a jury trial,

then the Court will hold a hearing on the issue of damages at the appropriate time.

IT IS SO ORDERED, this 9th day of June, 2009.

S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

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