Pride Cleaning and Restoration, Inc. v. Cole et al
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiff's Renewed Motion for Default against Defendant Andre's Remediation and Restoration, LLC (ECF No. 12 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion for Default against Defendant Andre's Remediation and Restoration, LLC (ECF No. 7 ) is DENIED as MOOT. IT IS FURTHER ORDERED that Plaintiff is entitled to damages in the amount of $24,597.01, representing $24,117.01 in actual damages and $480 in court costs. A separate judgment in accordance with this Memorandum and Order will be entered on this same date. Signed by District Judge Ronnie L. White on 9/28/2016. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PRJDE CLEANING AND
ANDRE D. COLE, SR., and
ANDRE'S REMEDIATION AND
No. 4:16CV90 RLW
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff's Renewed Motion for Default against
Defendant Andre's Remediation and Restoration, LLC ("Andre's Remediation") (ECF No. 12).
The record shows that Defendant Andre's Remediation was served with the summons and
Complaint on February 8, 2016, and has not filed an answer or other responsive pleading.
Defendant Andre D. Cole, Sr., ("Cole") actingpro se, filed an answer on February 18, 2016.
Plaintiff filed a Motion for Default against Defendant Andre's Remediation on April 4, 2016. In
response, Defendant Cole filed an opposition to the motion on behalf of himself and Andre's
Remediation and requested time to seek legal counsel. The Clerk of the Court entered a Clerk's
Entry of Default on April 11, 2016. Plaintiff then filed the Renewed Motion for Default against
Defendant Andre's Remediation on May 25, 2016. Plaintiff also requested a hearing on the
amount of damages. Defendant Andre's Remediation did not file a response to the renewed
motion for default, nor did an attorney enter an appearance on behalf of Defendant company.
On July 13, 2016, the Court held a hearing on the motion for default, during which time
Defendant Cole indicated that he understood Andre's Remediation could not represent itself and
that he planned to obtain counsel. Plaintiff also submitted affidavits to the Court on the issue of
damages in support of its default motion. The Court continued the hearing to allow Andre's
Remediation to find legal representation, and on July 27, 2016, Defendant Cole failed to show
and failed to respond to the clerk' s attempts to contact him telephonically. Counsel for Plaintiff
notified the Court that the damage amounts stated in the affidavits were true and correct, and the
Court took the motion for default judgment under submission. On August 22, 2016, this Court
issued an Order to Show Cause, by September 6, 2016, why the Court should not enter default
judgment against Defendant Andre's Remediation for failure to answer or obtain counsel. (ECF
No. 22) Defendant did not respond or otherwise comply with the show cause order.
Under Rule 55 of the Federal Rules of Civil Procedure, a court may enter default
judgment for failure "to plead or otherwise defend." Fed. R. Civ. P. 55(a). "Default judgment
for failure to defend is appropriate when the party' s conduct includes 'willful violation of court
rules, contumacious conduct, or intentional delays. '" Ackra Direct Marketing Corp. v. Fingerhut
Corp., 86 F.3d 852, 856 (8th Cir. 1996) (quoting United States v. Harre, 983 F.2d 128, 130 (8th
Cir. 1993)). Default judgments are disfavored under the law. Harre , 983 F.2d at 130. However,
"entry of default judgment ... is an appropriate exercise of a court's discretion for a party' s
repeated failure to comply with court orders due to willfulness or bad faith." Monsanto Co. v.
Hargrove, No. 4:09-CV-1628 (CEJ), 2011WL93718, at *2 (E.D. Mo. Jan. 11 , 2011) (citation
" [W]hen a default judgment is entered, facts alleged in the complaint may not be later
contested." Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010). However, "' it remains for
the [district] court to consider whether the unchallenged facts constitute a legitimate cause of
action, since a party in default does not admit mere conclusions of law."' Murray v. Lene, 595
F.3d 868, 871 (8th Cir. 2010) (quoting lOA C. Wright, A. Miller & M. Kane, Federal Practice
and Procedure§ 2688 at 63 (3d ed. 1998)). Further, "[a] party seeking damages under a default
judgment must ... prove its rights to such damages with affidavits or other supporting
documentation." Joe Hand Promotions, Inc. v. Kickers Corner of the Americas, Inc., No.
4:12CV02387 AGF, 2014 WL 805731 , at *2 (E.D. Mo. Feb. 28, 2014) (citations omitted).
Taking the allegations in the Complaint as true, Plaintiff has established that Defendant
Cole owned Andre ' s Remediation, which was a direct competitor with Plaintiff in the same
12, ECF No. 1) Further, Andre's Remediation accessed Plaintiffs computers
without authorization and tampered with Plaintiffs computer data and equipment. (Compl.
19-29) In addition, Andre' s Remediation interfered with Plaintiffs contracts, business
relationships, and business expectancies with customers, as well as interfered with Plaintiffs
employment relationship with Defendant Cole. (Compl.
In the Affidavit submitted by Susan Seubert, the Secretary of Plaintiff Pride Cleaining
and Restoration, Inc., Ms. Seubert avers that the Plaintiffs current damage claim against Andre's
Remediation is $48,234.02, which comprises the costs for Cole' s certification, net profit on five
lost projects, the value of Plaintiffs lap top and other property, attorney' s fees, and liquidated
damages. Plaintiff also seeks reimbursement of court costs. (Seubert Aff.
3, ECF No. 17)
Additionally, counsel for Plaintiff filed an affidavit verifying the amount ofrequested statutory
attorney' s fees and costs under one of the counts. (Cavanaugh Aff.
4, ECF No. 18)
Specifically, Plaintiff seeks a default judgment awarding damages of $1,042 for Cole' s
mold remediation certification; $21 ,247.89 in damages for five lost projects performed by
Defendant Andre's Remediation while Cole was still employed by Plaintiff; attorney' s fees of
$1 ,576.12 under Mo. Rev. Stat.§ 537.525.i; $250 for the laptop computer; and $24,117.01 in
liquidated damages for Andre' s Remediation' s appropriation of confidential business
Defendant Andre ' s Remediation has failed to dispute the allegations in the Complaint or
the amount of damages requested by Plaintiff, despite numerous opportunities to do so. Further,
Defendant Andre ' s Remediation has willfully failed to comply with several orders of this Corut.
The Court therefore finds that default judgment against Defendant Andre ' s Remediation is
appropriate for failure to defend. Ackra, 86 F.3d at 857; see also Forsythe v. Hales , 255 F.3d
487, 491 (8th Cir. 2001) (affirming grant of default judgment where defendants were unable to
show cause why default judgment should not be granted). Further, the Affidavits presented to
this Court are sufficient to prove the amount of $24,117.01 for actual damages sustained by
Plaintiff. However, the Court finds that Plaintiff has failed to provide sufficient justification for
liquidated damages in the same amount of Plaintiff's actual damages, especially in light of the
fact that the case remains pending against individual Defendant Cole. The Court will therefore
grant the motion for default judgment and enter damages in the amount of $24,117.01 for actual
damages only, plus $480 in court costs.
IT IS HEREBY ORDERED that Plaintiff's Renewed Motion for Default against
Defendant Andre's Remediation and Restoration, LLC (ECF No . 12) is GRANTED.
Under Mo. Rev. Stat. § 537.525.2, a court may award reasonable attorney' s fees to a
plaintiff prevailing on a claim of tampering with computer data, computer equipment, or
computer users, which is Count II of Plaintiff's Complaint. Counsel expended 31.31 hours at a
rate of $260, totally $7,880.60 in attorney' s fees . (Cavanaugh Aff. ~ 4, ECF No. 18) Divided
among the five counts, counsel avers that Plaintiff is entitled to $1 ,576.12 in attorney's fees.
IT IS FURTHER ORDERED that Plaintiffs Motion for Default against Defendant
Andre' s Remediation and Restoration, LLC (ECF No. 7) is DENIED as MOOT.
IT IS FURTHER ORDERED that Plaintiff is entitled to damages in the amount of
$24,597.01 , representing $24,117.01 in actual damages and $480 in court costs. A separate
judgment in accordance with this Memorandum and Order will be entered on this same date.
Dated this 28th day of September, 2016.
UNITED STATES DISTRICT JUDGE
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