Alberici Constructors, Inc. v. Oliver et al

Filing 152

MEMORANDUM AND ORDER re: 146 IT IS HEREBY ORDERED that plaintiff's motion for default judgment [Doc. #146] is granted. Judgment will be entered at the conclusion of all proceedings in this case.. Signed by District Judge Carol E. Jackson on 3/5/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALBERICI CONSTRUCTORS, INC.,
Plaintiff,
vs.
CLONE JEFFERSON OLIVER, et al.,
Defendants.

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Case No. 4:11-CV-744 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Alberici Constructors,
Inc., for default judgment against defendants Clone Jefferson Oliver, Pamela Whitmore,
and Advanced Construction Solutions, Inc. (ACS),1 pursuant to Rule 55(b)(2) of the
Federal Rules of Civil Procedure.
This action was filed on April 27, 2011. The summons and a copy of the original
complaint were served on defendant Oliver on May 9, 2011, and on defendants
Whitmore and ACS on May 24, 2011. Plaintiff’s first amended complaint was mailed
to defendants Oliver, Whitmore, and ACS on September 26, 2011. Defendants failed
to file an answer or responsive pleading. Upon plaintiff’s motion, the Clerk of Court
entered default against defendants on August 6, 2013. The plaintiff filed its motion for
entry of default judgment on February 4, 2014.
In this action, plaintiff claims that the defendants engaged in a fraudulent
scheme to divert profits from plaintiff.

It is alleged that Oliver encouraged

subcontractors to submit improperly inflated invoices, price quotes, and change orders
to plaintiff. Plaintiff would pay the price listed on the invoice and the subcontractors

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Defendant American Construction Services, Inc. is not to be confused with defendant
American Construction Services, Inc. of Tampa.

would then pay part of the proceeds to a shell corporation, ACS, created by Oliver and
Whitmore for the purpose of diverting and concealing proceeds.
Pursuant to Fed. R. Civ. P. 55, default judgment is appropriate when “a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend as provided by these rules and that fact is made to appear by
affidavit or otherwise.” By virtue of the default entered against it, a defendant is
deemed to have admitted all well-pleaded factual allegations in the complaint. See
Taylor v. Ballwin, 859 F.2d 1330, 1333 (8th Cir. 1988). Thus, because defendants
Oliver, Whitmore, and ACS have failed to answer and are in default, it is established
that they conspired to defraud plaintiff as alleged in the first amended complaint.
The affidavit of damages submitted in support of the motion for default
judgment establishes that plaintiff suffered damages in the amount of $7,504.058.22
as a direct and proximate result of defendants’ conduct as alleged in the first amended
complaint. See Pl. Ex. A, Affidavit of Gregory T. Hesser [Doc. #146-1]; see also
Everyday Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir. 2001) (allegations
relating to the amount of damages must be proven by the plaintiff). Therefore, plaintiff
is entitled to judgment by default against defendants Oliver, Whitmore, and ACS in the
amount of $7,504,058.22.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for default judgment [Doc.
#146] is granted.
Judgment will be entered at the conclusion of all proceedings in this case.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 5th day of March, 2014.
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