TOUCHSTONE, INC. v. TELECARE, INC.
Filing
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ORDER granting in part 17 Motion for Default Judgment. Default Judgment is entered in favor of Plaintiff Touchstone, Inc., and against Defendant, Telecare, Inc. The expenses for filing fee ($400.00) and service of summonses ($26.58) ar e supported by the Court's receipt (Filing No. 17 at ECF 2), and verified returns of summonses (Filing No. 8, p. 2; Filing No. 9, p. 2), therefore these fees are awarded. The contract between the parties allows for attorney's fees to t he prevailing party. (Filing No. 1 at ECF 1). Plaintiff has elected to forego the assessment of attorney's fees for obtaining this default judgment, but has requested its right under the contract to seek fees for its collection efforts and th is request shall be granted. Plaintiff shall submit documentary evidence or detailed affidavit(s) to support its claim of $413, 870.00 in damages within thirty (30) days of the date of this Order. A final judgment of default shall issue once damages are determined. Copies Mailed. Signed by Judge Tanya Walton Pratt on 9/16/2014. (MGG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TOUCHSTONE, INC., doing business as
Earth Tones,
Plaintiff,
v.
TELECARE, INC.,
Defendant.
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Case No. 1:14-cv-456-TWP-DML
ENTRY ON APPLICATION FOR DEFAULT JUDGMENT
This matter is before the Court on Plaintiff Touchstone, Inc.’s Application for Entry of
Default Judgment pursuant to Federal Rule of Civil Procedure 55(b). (Filing No. 17).
On August 1, 2014, the Clerk issued its Entry of Default, which was served on CT
Corporation System, Registered Agent for Defendant Telecare, Inc. (Filing No. 16). Prior to that
date, Plaintiff’s counsel had served Defendant’s president and its registered agent with the Request
for Entry of Default by the Clerk (Filing No. 13, Filing No. 15), at addresses shown on the certified
records of the Indiana Secretary of State (Filing No. 10 at ECF 1 and Filing No. 10 at ECF 2).
Plaintiff has submitted detailed and adequate verified documentation showing the service
of process upon the Defendant. Defendant’s due date to respond to the Complaint was April 17,
2014.
Defendant has neither appeared nor responded to the Complaint.
Defendant is a
corporation. It is neither a minor nor an incompetent individual. Defendant is not in military
service. As such, Plaintiff is entitled to a default judgment.
With respect to damages, Plaintiff has requested damages in the sum of $413,870.00 in
commissions earned as of March 5, 2014, as stated in its Verified Complaint (Filing No. 1), and
Affidavit in Support of Request for Default Judgment (Filing No. 17 at ECF 1). Additionally,
Plaintiff seeks expenses for filing fee ($400.00) and service of summonses ($26.58). Although
upon default the factual allegations of a complaint relating to liability are taken as true, those
allegations relating to the amount of damages suffered are ordinarily not. Dundee Cement Co. v.
Howard Pipe & Concrete Products, Inc. 722 F.2d 1319, 1323 (7th Cir. 1983). Further, “A judgment
by default may not be entered without a hearing on damages unless…the amount claimed is
liquidated or capable of ascertainment from definite figures contained in the documentary evidence
or in detailed affidavits” Id. Plaintiff has submitted an affidavit which merely states that the amount
of damages is “listed in the Verified Complaint at $413,870.00 for commissions earned as of
March 5, 2014” and attachments to the Complaint which do not explain how the commission
amount is determined. Without more, the Court cannot ascertain the amount of damages to award.
Accordingly, the Court GRANTS Plaintiff’s Motion, in part. Default Judgment is entered
in favor of Plaintiff Touchstone, Inc., and against Defendant, Telecare, Inc. The expenses for filing
fee ($400.00) and service of summonses ($26.58) are supported by the Court’s receipt (Filing No.
17 at ECF 2), and verified returns of summonses (Filing No. 8, p. 2; Filing No. 9, p. 2), therefore
these fees are awarded. The contract between the parties allows for attorney’s fees to the prevailing
party. (Filing No. 1 at ECF 1). Plaintiff has elected to forego the assessment of attorney’s fees for
obtaining this default judgment, but has requested its right under the contract to seek fees for its
collection efforts and this request shall be granted.
Plaintiff shall submit documentary evidence or detailed affidavit(s) to support its claim of
$413, 870.00 in damages within thirty (30) days of the date of this Order.
A final judgment of default shall issue once damages are determined.
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SO ORDERED.
Date: 9/16/2014
DISTRIBUTION:
Hamid R. Kashani
hkashani@kashanilaw.com
CT Corporation System
Registered Agent for Telecare, Inc.
150 West Market Street, Suite 800
Indianapolis, Indiana 46204
Jane Roudebush, President
Telecare, Inc.
444 Lafayette Road
Noblesville, Indiana 46060
Jane Roudebush, President
Telecare, Inc.
176 Logan Street, #232
Noblesville, Indiana 46060-1437
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