Law Offices of Christopher J. Trainor & Associates, P.C. et al v. Patton et al

Filing 37

OPINION and ORDER Granting in Part and Denying in Part 32 MOTION for Default Judgment as to ILEGAL MARKETING, ILEGALMARKETING.COM, PPC FISH, PPCFISH.COM, Crystal Finere Patton, Michael Patton, Tikee Pittman. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Law Offices of Christopher J.
Trainor & Associates, P.C., and
Christopher Trainor,
Plaintiffs,
v.

Case No.: 14-14246

Tikee Pittman a/k/a Michael Patton,
Crystal Finere Patton a/k/a Crystal Pittman,
Ilegal Marketing, ilegalmarketing.com,
PPC Fish, and ppcfish.com,

Honorable Sean F. Cox

Defendants.
______________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION FOR DEFAULT JUDGMENT (Doc. #32)
This case is, chiefly, a breach of contract action. Plaintiffs, the Law Offices of Christopher
J. Trainor, P.C. and Christopher Trainor (collectively, “Plaintiffs”), allege that they entered into a
contract with Defendants for the provision of internet marketing services. (Amended Complaint,
Doc. #4). Plaintiffs allege that Defendants accepted Plaintiffs’ pre-payment in the amount of
$169,000.00, but failed to fulfill their duties under the contract.
This matter is before the Court on Plaintiffs’ Motion for Default Judgment Pursuant to
Federal Rule of Civil Procedure 55. (Doc. #32). The Clerk of the Court has entered default as to
all Defendants, and no response to the motion has been filed. The Court held a hearing on Plaintiffs’
motion on May 21, 2015. For the reasons set forth below, the Court shall GRANT IN PART and
DENY IN PART Plaintiffs’ Motion for Default Judgment.

BACKGROUND

It is well settled that a defendant who defaults “thereby admits all ‘well pleaded’ factual
allegations contained in the complaint.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d
114, 137 (2d Cir. 2011); see also Ford Motor Co. v. Cross, 441 F. Supp. 2d 837, 848 (E.D. Mich.
2006) (citing Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995)). Because the Clerk
of the Court entered default against all Defendants, this Court shall accept all well-pleaded factual
allegations in Plaintiffs’ Amended Complaint as admitted.
Plaintiffs Christopher Trainor and Law Offices of Christopher J. Trainor & Associates, P.C.
are citizens of Michigan. (Amd. Compl., Doc. #4 at ¶¶ 1-2). Plaintiffs filed their Complaint on
November 4, 2014, (Doc. #1), and an Amended Complaint on November 14, 2014. (Doc. #4).
There are six named Defendants in this case. Two Defendants are individuals: Tikee Pittman
a/k/a Michael Patton, and Crystal Finere Patton a/k/a Crystal Pittman. (Doc. #4 at ¶¶ 3, 5). Both
individual Defendants are citizens of California, and are allegedly husband and wife. (Doc. #4 at
¶ 7).
Two Defendants appear to be businesses: Ilegal Marketing and PPC Fish. Plaintiffs allege
that Ilegal Marketing is an “unincorporated artificial association[]” with a primary place of business
in Fayetteville, North Carolina. (Doc. #4 at ¶ 9). Plaintiffs allege that PPC Fish is also an
unincorporated artificial association with a primary place of business in San Jacinto, California.
(Doc. #4 at ¶ 13). Plaintiffs allege that Tikee Pittman and Crystal Patton are owners and/or partners
and/or agents of Defendants Ilegal Marketing and PPC Fish. (Doc. #4 at ¶¶ 4, 6).
The last two Defendants are website addresses: Ilegalmarketing.com, and PPCFish.com.
Plaintiffs allege that these website addresses are also “unincorporated artificial associations” with
their primary places of business in Fayetteville, North Carolina and San Jacinto, California,

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respectively. (Doc. #4 at ¶¶ 9, 13). Plaintiffs also allege that Tikee Pittman and Crystal Patton are
owners and/or partners and/or agents of Defendants Ilegalmarketing.com and PPCFish.com. (Doc.
#4 at ¶¶ 4, 6).
Plaintiffs allege that on December 2, 2013, Defendants “submitted to Plaintiffs a one year
Internet Marketing Proposal.” (Amd. Compl. at ¶ 27). Plaintiffs claim that they “accepted
Defendants’ proposal and pre-paid the agreed upon price of $169,000.” (Amd. Compl. at ¶ 28).
Plaintiffs allege that Defendants “have failed to provide the promised services and is [sic] in breach
of the parties’ agreement.” (Amd. Compl. at ¶ 29).
Plaintiffs have attached two exhibits to the Amended Complaint. Exhibit A is a “Pay Per
Call Advertising Contra” that appears to have been executed by Christopher Trainor and Michael
Patton on September 20, 2013. (Amd. Compl., Ex. A). It appears to state that Defendant Ilegal
Marketing would provide personal injury pay per lead calls to Plaintiffs in exchange for a “total fee”
of $1000, as well as $30 per call, and a “call management fee” of $100 per month. (Amd. Compl.
at Ex. A).
Plaintiffs’ Exhibit B is an “Internet Marketing Proposal.” It appears to detail the types of
Internet Marketing services that Ilegal Marketing provides. (Amd. Compl. at Ex. B). On the last
page of Exhibit B is a section entitled “Terms & Agreement.” It appears to provide that the monthly
cost for the services detailed in the Proposal is $19,500. (Amd. Compl. at Ex. B).
At the hearing on Plaintiffs’ motion, Plaintiffs’ counsel provided the Court with the affidavit
of Plaintiff Christopher J. Trainor (“Trainor”). In his affidavit, Trainor states that
After [Defendants] submitted a one-year Internet Marketing Proposal on or about
December 2, 2013, the Law Offices of Christopher J. Trainor & Associates pre-paid
$169,000.00 to [Defendants] for their advertising services for the calendar year of
2014.
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. . . [and]
That [Defendants] did not perform the agreed-upon services or otherwise provide any
benefit to myself and the Law Offices of Christopher J. Trainor & Associates in
consideration of the $169,000.00.
(Trainor Aff at ¶¶ 4, 5).
Plaintiffs have pleaded the following claims against all Defendants: Count One - Breach of
Contract; Count Two - Failure To Provide Promised Benefits And Deliver Agreed-Upon Terms;
Count Three - Unjust Enrichment; Count Four - Violation of MCL 600.2919(a)1; and Count Five Fraud In The Inducement. (Amd. Compl., Doc. #4).
Plaintiffs have filed Certificates of Service as to all Defendants, thereby claiming that they
have properly served all Defendants with a copy of the summons and Amended Complaint. (Doc.
##9–15). Plaintiffs served Tikee Pittman a/k/a Michael Patton on November 29, 2014 by personal
service at a San Jacinto, California residence.2 (Doc. #9). Plaintiffs served Crystal Patton on
November 29, 2014 by leaving a copy of the summons and complaint with Tikee Pittman at the
same San Jacinto, California residence. (Doc. #14). Plaintiffs served the company Defendants and
website Defendants by serving Tikee Pittman at the San Jacinto, California address. (Doc. ##
10–13). Those Certificates of Service state that Ilegal Marketing, Ilegalmarketing.com, PPC Fish,
and PPCFish.com were all served through Tikee Pittman, “who is designated by law to accept
service” on their behalf. (Id.).
On January 7, 2015, the Clerk of the Court entered default as to each Defendant in this case.

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M.C.L. § 600.2919 refers to damages to land; the Court assumes that Plaintiffs intended
to plead a violation of M.C.L. § 600.2919a, which is Michigan’s statutory conversion provision.
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998 Virginia Lee Ct., San Jacinto, CA 92653.
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(Doc. ## 23–29). Plaintiffs served the Clerk’s Entry of Default notices on Defendants at the San
Jacinto, California address. (Doc. #30).
On March 3, 2015, Plaintiffs filed a Motion for Default Judgment as to All Defendants.
(Doc. #32). Plaintiffs served all Defendants with a copy of the Notice of Hearing for Plaintiffs’
Motion for Default Judgment. (Doc. #34).
Plaintiffs request that the Court enter default judgment against Defendants in the following
amounts:
a.

$169,000 which represents the paid contract price by Plaintiffs;

b.

Treble damages in the amount of $507,000.00 ($169,000 x 3);

c.

$20,000 in attorney fees and costs.

(Pl. Mo., Doc. #32 at 3).
ANALYSIS
Under Federal Rule of Civil Procedure 55(a), the Court may enter default judgment against
a party if that party has failed to plead or otherwise defend the claim. Fed. R. Civ. P. 55(a). “Once
a default has been entered by the clerk’s office, all of a plaintiff’s well-pleaded allegations, except
those relating to damages, are deemed admitted.” J & J Sports Productions, Inc. v. Bader Matti,
2015 WL 900478 at *1 (E.D. Mich. 2015) (citing Atlas Turner, 66 F.3d at 110). “[A]llegations
regarding the amount of damages must be proven.” Broadcast Music, Inc. v. Pub Acquisition, LLC,
2014 WL 2993661 at *4 (N.D. Ohio 2014). Under Rule 55(b)(1), Plaintiffs’ burden is to “establish
that the damages requested are such that may be computed to a sum certain.” Meyer v. City of
Cincinnati, 943 F.2d 52 at *3 (6th Cir. 1991). “The court must conduct an inquiry sufficient to
establish damages to a reasonable certainty.” J&J Sports Prods., Inc. v. Cole’s Place, Inc., 2012

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WL 469918, at *2 (W.D. Ky. 2012) (quoting J&J Sports Prods., Inc. v. Daley, 2007 WL 7134707
at *3 (E.D.N.Y. 2007)). Civil Rule 55 “allows but does not require the district court to conduct an
evidentiary hearing.” Broadcast Music, 2014 WL 2993661 at *4 (quoting Vesligaj v. Peterson, 331
Fed. App’x 351, 354-55 (6th Cir. 2009)).
1)

The Court Shall Award Damages in the Amount of $169,000.00 to Plaintiffs.
Based on the allegations in the Amended Complaint and the attached Exhibits, as well as

the affidavit of Plaintiff Christopher Trainor, the Court finds that Plaintiffs have sufficiently
established that they had a contract with Defendants pursuant to which Plaintiffs pre-paid $169,000
in exchange for services that were ultimately never provided. Therefore, the Court shall GRANT
Plaintiffs’ Motion for Default Judgment to the extent that Plaintiffs seek damages in the amount of
the contract price, or $169,000.00.
2)

Plaintiffs Are Not Entitled to Treble Damages or Attorney’s Fees and Costs Pursuant
to M.C.L. § 600.2919a.
Plaintiffs claim that they are entitled to treble damages and attorney fees pursuant to M.C.L.

§ 600.2919a because Defendants wrongfully converted Plaintiffs’ money to their own use. M.C.L.
§ 600.2919a provides, in pertinent part:
Sec. 2919a. (1) A person damaged as a result of either or both of the following may
recover 3 times the amount of actual damages sustained, plus costs and reasonable
attorney fees:
(a) Another person’s stealing or embezzling property or converting property to the
other person’s own use.
(b) Another person’s buying, receiving, possessing, concealing, or aiding in the
concealment of stolen, embezzled, or converted property when the person buying,
receiving, possessing, concealing, or aiding in the concealment of stolen, embezzled,
or converted property knew that the property was stolen, embezzled, or converted.
(2) The remedy provided by this section is in addition to any other right or remedy
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the person may have at law or otherwise.
M.C.L. § 600.2919a.
“Conversion is only applicable in cases involving money that is the property of one party but
held by another party (e.g., bank accounts, trusts, etc.) which is then wrongfully taken.” Sudden
Serv. Inc. v. Brockman Forklifts, Inc., 657 F. Supp. 2d 811, 816 (E.D. Mich. 2008). “To support an
action for conversion of money, the defendant must have an obligation to return the specific money
entrusted by plaintiff to his care.” Llewellyn-Jones v. Metro Property Group, LLC, 22 F. Supp. 3d
760, 788 (E.D. Mich. 2014) (quoting El Camino Res., Ltd. v. Huntington Nat’l Bank, 722 F. Supp.
2d 875, 915 (W.D. Mich. 2010)). “A conversion claim ‘cannot be brought where the property right
alleged to have been converted arises entirely from the [plaintiff’s] contractual rights.’” Id. (quoting
James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, 941 F. Supp. 2d 807, 827
(E.D. Ky. 2013)).
Plaintiffs have not alleged that Defendants were holding Plaintiffs’ property pursuant to
some duty independent of their alleged contractual duty. Rather, Plaintiffs claim that they paid
Defendants $169,000 pursuant to the parties’ contract, but that Defendants failed to perform their
contractual duties. Plaintiffs have failed to allege that Defendants had an independent duty to return
Plaintiffs’ funds. In fact, had Defendants performed their alleged contractual duties, they would
have had no obligation to return Plaintiffs’ funds. Thus, the Court finds that Plaintiffs have not
pleaded a statutory conversion claim against Defendants. Accordingly, the Court shall DENY
Plaintiffs’ Motion for Default Judgment to the extent that Plaintiffs seek treble damages and
attorney’s fees and costs pursuant to M.C.L. § 600.2919a.
CONCLUSION

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Based on the foregoing, the Court shall GRANT IN PART and DENY IN PART Plaintiffs’
Motion for Default Judgment. (Doc. #32). Within seven (7) days of entry of this Opinion and
Order, Plaintiffs shall submit a proposed judgment consistent with the same.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 29, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of record on June
29, 2015, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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