Hermeris, Inc. v. McBrien et al

Filing 39

MEMORANDUM AND ORDER denying without prejudice 37 Motion for Default Judgment. Signed by District Judge Julie A. Robinson on 4/20/2011.Mailed to pro se party Saudin Hodzic, 382 Ocean Avenue, #1708, Revere, MA 02151; Patrick McBrien, 4B Mermaid Avenue, Revere, MA 02151 by regular mail (pp)

ams
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HERMERIS, INC.,

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Plaintiff,
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vs.
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PATRICK MCBRIEN, et al.,
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Defendants.
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____________________________________)

Case No. 10-2483-JAR

MEMORANDUM AND ORDER
Plaintiff filed this action alleging copyright violations and pendent state law claims
against defendants Patrick McBrien, Steven Betterman, Diego Goding, Saudin Hodzic, Greg
Robinson, Ad Edge Marketing, CMBD Strategies and Expansion Firm, Global Industry,
Govdba.com LLC, Govein.com LLC, and Taxids.us LLC. Before the Court is plaintiff’s Motion
for Default Judgment against Defendants Greg Robinson and Ad Edge Marketing (Doc. 37). As
described more fully below, plaintiff’s motion for default judgment is denied without prejudice.
The Complaint in this matter was filed on September 1, 2010. Count 1 alleges direct
copyright infringement against all defendants pursuant to 17 U.S.C. § 504; Count 2 alleges
contributory copyright infringement against all defendants; Count 3 alleges vicarious copyright
infringement against all defendants; Count 4 alleges common law unfair competition under state
law against all defendants; Count 5 alleges a fraud claim under state law against all defendants;
Count 6 alleges tortious interference with business expectancy under state law against all
defendants; Count 7 alleges civil conspiracy under state law against all defendants; and Count 8
alleges breach of contract under state law against defendant McBrien only. Plaintiff voluntarily

dismissed defendant Goding on November 8, 2010 and defendant Betterman on November 24,
2010. On March 15, 2011, plaintiff applied for a Clerk’s Entry of Default against defendants Ad
Edge Marketing and Greg Robinson (Doc. 31). The Clerk entered default against these
defendants on March 16, 2011. A scheduling order has recently been entered in this case, setting
a dispositive motion deadline for January 9, 2012 and a trial date of July 16, 2012 for the
remaining defendants.
The Tenth Circuit has made clear that “consistent damage awards on the same claim are
essential among joint and several tortfeasors.”1 In a case with multiple defendants, “judgment
should not be entered against a defaulting defendant before the case has been decided on the
merits as to the remaining defendants.”2 In the Complaint and in the motion for default
judgment, plaintiff acknowledges that its claims against all defendants in this matter are based on
joint and several liability, with the exception of Count 8 against defendant McBrien. And the
Complaint seeks joint and several liability not just against these defendants on the copyright
claims, but also on state law tort claims. The Court declines to enter judgment against two
defendants who are alleged to be jointly and severally liable with eight other non-defaulting
defendants. Therefore, the motion for default judgment is premature.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff’s Motion for Default
Judgment against Defendants Greg Robinson and Ad Edge Marketing (Doc. 37) is denied
without prejudice.

1

Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 147 (10th Cir. 1985); see Frow v. De La Vega, 82 U.S.
552, 554 (1872).
2

Wilcox v. Raintree Inns of Am., Inc., 76 F.3d 934 (Table), 1996 WL 48857, at *2 (10th Cir. Feb. 2, 1996)
(discussing Frow, 82 U.S. at 554) (explaining that the rule applies when the defendants are jointly and severally
liable and where multiple defendants have closely related defenses).

2

IT IS SO ORDERED.
Dated: April 20, 2011
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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