Fabri-Quilt, Inc. v. Malitz III et al
ORDER granting in part 33 motion for default judgment. Signed on 6/21/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CHARLES C. MALITZ, III,
CAROL E. MALITZ, and
WESTERN IM-EX COMPANIES,
ORDER GRANTING DEFAULT JUDGMENT
This case arises from a business deal gone bad. Plaintiff Fabri-Quilt, Inc. entered into an
agreement with Defendants under which Plaintiff would purchase large quantities of fabric to be
sold to Defendants’ customers. After Plaintiff purchased the fabric, Defendants did not keep
their end of the bargain. Plaintiff sued Defendants for fraudulent misrepresentation (Count I),
negligent misrepresentation (Count II), and breach of contract (Count III).
Now before the Court is Plaintiff’s Restated Motion for Default Judgment (Doc. 33). For
the reasons below, the motion is GRANTED IN PART and judgment is awarded against the
Defendants jointly and severally in the amount of $498,194.22.
Standard of Review
Once a defendant is in default, a court may enter a default judgment against that party.
Fed. R. Civ. P. 55(b)(2). Upon default, a court takes as true all factual allegations in the
complaint except those relating to the amount of damages. Murray v. Lene, 595 F.3d 868, 871
(8th Cir. 2010); see Fed. R. Civ. P. 8(b)(6). In deciding damages, the court makes factual
findings from the movant’s allegations in the record. See Stephenson v. El-Batrawi, 524 F.3d
907, 916 (8th Cir. 2008).
The Court previously entered default against Defendants (Doc. 32).
Based on the
existing record, including the Complaint (Doc. 1) and an affidavit (Doc. 31-1) from Barry Oltsik,
Plaintiff’s vice-president, the Court finds none of the Defendants is a minor or an incompetent
person, and that none have been in the military services during this litigation. Defendants have,
however, failed to plead or otherwise defend as required by the Federal Rules of Civil Procedure.
As for damages, although it is somewhat unclear, it appears Plaintiff is requesting actual
damages of $498,194.22 on Count One and $148,801.801 on Count Three. A review of the
Complaint indicates that the damages claimed in Count Three are duplicative of those in Count
One, and so awarding the damages on Count Three would constitute a double recovery, which is
impermissible. See, e.g., Kincaid Enters., Inc. v. Porter, 812 S.W.2d 892, 900-01 (Mo. Ct. App.
1991) (noting the damages for fraudulent inducement and breach of contract can be the same and
Consequently, despite prevailing on all three claims, Plaintiff may recover only
$498,194.22 in damages.
For the foregoing reasons, Plaintiff’s motion is GRANTED IN PART. The Court enters
a FINAL JUDGMENT against Defendants Western IM-EX Companies, Incorporated; Charles C.
Malitz, III; and Carol E. Malitz jointly and severally in the amount of $498,194.22. The Court
also taxes as costs against Defendants $1,906.73 for filing fees and service costs. Finally, the
$87,875.90 plus $60,925.90 equals $148,801.80.
Court holds Plaintiff is entitled to post-judgment interest in the amount set forth under 28 U.S.C.
IT IS SO ORDERED.
Dated: June 20, 2017
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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