Phillipp v. Capital Restoration & Painting Co.

Filing 36

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motions for partial default judgment (Doc. No. 25 and Doc. No. 34) are DENIED without prejudice. Signed by Honorable Audrey G. Fleissig on 5/3/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED PHILLIPP, JR., et al.,
Plaintiffs,
vs.
CAPITAL RESTORATION &
PAINTING CO., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:11CV01046 AGF

MEMORANDUM AND ORDER
This action to collect delinquent contributions to several employee benefits funds
and attendant damages under the Employee Retirement Income Security Act, 29 U.S.C.
§ 1132, is before the Court on two motions for default judgment (Doc. Nos. 25 and 34).
Each motion seeks default judgment against two corporate Defendants, with respect to
which the Clerk’s Office entered orders of default. The remaining Defendant, Gary
Sextro, was joined as a Defendant by means of Plaintiffs’ amended complaint filed on
February 24, 2012. Sextro is being sued for the same alleged liability on the theory that
he operated the four corporate Defendants as an extension of himself and not as separate
business entities. Sextro filed a timely answer and the case is set for a Rule 16
scheduling conference on June 1, 2012.
Where multiple defendants are sued under a theory of joint and several liability
and less than all of them default, a court should not enter default judgment against the
defaulted defendant(s) until the liability of the nondefaulted defendant(s) has been
decided, as the entry of such a partial default judgment could result in inconsistent

outcomes. McMillian/McMillian, Inc. v. Monticello Ins. Co., 116 F.3d 319, 321 (8th Cir.
1997); F.F. Heating & Cooling, Inc. v. Lewis Mech. Servs., No. 4:09CV1496 CAS, 2010
WL 3720190, at *2 (E.D. Mo. Sept. 13, 2010). Here, the Court believes that the best
course to follow is to deny the motions for partial summary judgment without prejudice
to Plaintiffs’ right to renew the motions after any determination of liability and damages
with respect to Sextro. See F.F. Heating & Cooling, Inc., 2010 WL 3720190, at *2
(denying without prejudice one defendant’s motion for default judgment in an action for
breach of contract and quantum meruit where liability of similarly-situated answering
defendants was yet to be determined); Trustees of Pension & Welfare Funds of Moving
Picture Mach. Operators Union, Local 306 v. Queens Circuit Mgmt. Corp., No. 11-CV5882 (DLI), 2012 WL 825026, at *2 (E.D. N.Y. March 9, 2012) (same in ERISA case for
delinquent contributions); Central Laborers’ Pension, Welfare & Annuity Funds v. W.C.
Beiser Concrete Co., No. 10-cv-611-JPG-PMF, 2011 WL 1549226, at *5 (S.D. Ill. April
21, 2011) (same).
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motions for partial default judgment
(Doc. No. 25 and Doc. No. 34) are DENIED without prejudice.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of May, 2012.

-2-