Larrabee v. Mathewson et al

Filing 36

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. Plaintiffs 33 motion for default judgment is GRANTED, and plaintiff is directed to submit any affidavits or other documents from which the Court can calculate damages on or before June 14, 2013.(Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
)
JEFFREY SCOTT LARRABEE,
)
)
Plaintiff,
)
)
v.
)
)
DUNCAN MATHEWSON, JEFFREY
MCKINNON, and ROBERT MCKINNON, )
)
)
Defendants.
)

Civil No.
11-11853-FDS

MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
SAYLOR, J.
Pending before the Court is plaintiff Jeffrey Scott Larrabee’s motion for default judgment
as to defendants Robert McKinnon, Jeffrey McKinnon, and Duncan Mathewson. A default was
entered against defendant Jeffrey McKinnon under Fed. R. Civ. P. 55(a) on January 18, 2013.
Defaults were entered against defendants Robert McKinnon and Duncan Mathewson on
February 13, 2013. All three defendants are residents of Canada. The clerk attempted to mail
copies of the notice of default to each of them at their last known addresses; however, all of the
mailed notices were returned to the Court as undeliverable.1 Plaintiff has now moved for the
entry of default judgment against them. The Court will grant the motion.
Rule 55(b)(2) provides that when plaintiff’s claim is not for a sum certain, “[t]he court
may conduct hearings or make referrals—preserving any federal statutory right to a jury
trial—when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B)

1

Returns of service for the complaint have been docketed as to defendants Robert McKinnon and Jeffrey
McKinnon; defendant Mathewson has acknowledged receipt of service in his answer to the complaint. Defendant
Robert McKinnon has also responded to the complaint, although defendant Jeffrey McKinnon has not.

determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D)
investigate any other matter.” Fed. R. Civ. P. 55(b)(2). Here, plaintiff claims damages that may
not be “made certain by computation.” See Fed. R. Civ. P. 55(b)(1) (describing entry of default
damages for sum certain claims). Therefore, the Court must find the amount of damages
pursuant to the procedures made available by Fed. R. Civ. P. 55(b)(2). Interpreting that rule, the
First Circuit has held that every plaintiff “is not necessarily entitled to an evidentiary hearing”
when the claimed damages are not a sum certain; “in limited circumstances [the First Circuit has]
permitted district courts to dispense with a Rule 55(b)(2) hearing, even in the face of apparently
unliquidated claims.” KPS & Assocs. v. Designs by FMC, Inc., 318 F.3d 1, 21 (1st Cir. 2003).
Accordingly, and in the interests of judicial economy, the Court will request affidavits
and documentary evidence of damages to be filed by the plaintiff by June 14, 2013. The Court
may hold an evidentiary hearing if the amount of damages cannot be readily ascertained from
those filings.
For the foregoing reasons, plaintiff’s motion for default judgment is GRANTED, and
plaintiff is directed to submit any affidavits or other documents from which the Court can
calculate damages on or before June 14, 2013.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: May 16, 2013

2