Margulis v. Probity Brothers, LLC et al

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants/Third-Party Plaintiffs' Motion for Entry of Default Judgment Against Third-Party Defendant Assure Call, LLC (ECF No. #19 ) is DENIED WITHOUT PREJUDICE. Signed by Magistrate Judge John M. Bodenhausen on 8/18/17. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARILYN MARGULIS,
Plaintiff,
v.
PROBITY BROTHERS, LLC, MATHEW T.
BROWN, and JOHN DOES 1-10,
Defendants,
PROBITY BROTHERS, LLC and
MATTHEW T. BROWN,
Third-Party Plaintiffs,
v.
ASSURE CALL, LLC,
Third-Party Defendant.

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No. 4:17 CV 1355 JMB

MEMORANDUM AND ORDER
This matter is before the Court on Defendants/Third-Party Plaintiffs Probity Brothers,
LLC, d/b/a Top Performance Roofing, and Mathew T. Brown’s (“Third-Party Plaintiffs”)
Motion for Entry of Default Judgment Against Third-Party Defendant Assure Call, LLC
(“Third-Party Defendant”). (ECF No. 19)
I.

Background
On March 13, 2017, Plaintiff Marilyn Margulis (“Plaintiff”) filed a Petition in the

Circuit Court of St. Louis County, Missouri, alleging violations of the Telephone Consumer
Protection Act, 47 U.S.C. § 227, et. seq. and the Missouri Merchandising Practices Act,
RSMo. § 407.1098, et. seq. (ECF No. 1-1) Plaintiff seeks $97,500.00 in monetary damages
for violating the National and Missouri Do Not Call Lists, as well as injunctive relief.
On April 19, 2017, Defendant Matthew Brown, with the consent of Probity Brothers,

LLC, removed the action to this Court. (ECF No. 1) On May 3, 2017, Third-Party Plaintiffs
filed a Third-Party Complaint alleging that Third-Party Defendant initiated, made, and is
responsible for the alleged telephone calls at issue. (ECF No. 12) Third-Party Plaintiffs
requested that Third-Party Defendant waive service pursuant to Fed. R. Civ. P. 4. (ECF Nos.
12 and 13) On June 13, 2017, Third-Party Plaintiffs effectuated service on Third-Party
Defendant. (ECF No. 18)
On July 14, 2017, Third-Party Plaintiffs filed the instant Motion for Default Judgment,
seeking entry of a default judgment against Third-Party Defendant, pursuant to Fed. R. Civ. P.
55, for an amount to be determined later. (ECF No. 19) The Clerk of the Court entered an
order of default against Third-Party Defendant, in this action on August 3, 2017. (ECF No.
22)
II.

Legal Standard
Under Fed. R. Civ. P. 55, a court may enter a default judgment for failure “to plead or

otherwise defend.” It is nearly axiomatic that when 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
10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure 2688 at 63 (3d ed.
1998)).
Upon entry of default, the allegations of the complaint are taken as true, except as to the
amount of damages. Brown v. Kenron Aluminum & Glass Corp., 477 F.2d 526, 531 (8th Cir.
1973). Damages are subject to a higher degree of proof than other factual allegations in a
complaint. Monsanto Co. v. Hargrove, 2011 WL 5330674, at *2 (E.D. Mo. Nov. 7, 2011)
(“[W]hile factual allegations in the complaint are generally taken as true, those … relating to
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the amount of damages, must be proven.”). “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., 2014
WL 805731, at *2 (E.D. Mo. Feb. 28, 2014) (citations omitted). See Fed.R.Civ.P. 8(b)(6)
(stating that “[a]n allegation – other than one relating to the amount of damages – is admitted
if a responsive pleading is required and the allegation is not denied.”); see also Everyday
Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir. 2001) (holding that “[w]hen a default
judgment is entered on a claim for an indefinite or uncertain amount of damages, facts alleged
in the complaint are taken as true, except facts relating to the amount of damages, which must
be proved in a supplemental hearing or proceeding.”) (citations omitted). “A default judgment
cannot be entered until the amount of damages has been ascertained.” SSM Managed Care
Org., L.L.C. v. Comprehensive Behavioral Care, Inc., 2014 WL 1389581, at *1 (E.D. Mo.
Apr. 9, 2014) (citing Oberstar v. F.D.I.C., 987 F.2d 494, 505 n.9 (8th Cir. 1993)).
III.

Discussion
Here, Defendants/Third-Party Plaintiffs’ claims for contribution and indemnity and

negligent misrepresentation against Third-Party Defendant fail to state a claim for which a
judgment could be entered at this time. Liability and damages against Defendants/Third-Party
Plaintiffs has not been established and, therefore, any claim against Third-Party Defendant is not
yet ripe. Accordingly,
IT IS HEREBY ORDERED that Defendants/Third-Party Plaintiffs’ Motion for Entry of
Default Judgment Against Third-Party Defendant Assure Call, LLC (ECF No. 19) is DENIED
WITHOUT PREJUDICE.
/s/ John M. Bodenhausen
UNITED STATES MAGISTRATE JUDGE
Dated this 18th day of August, 2017
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