Blues Events, et al, v. Lincoln Professional Baseball, et al.

Filing 64

ORDER - LPB's Motion for Default Judgment (filing 62 ) is granted. Judgment is entered in favor of LPB, and against Blues Events, in the amount of $215,668.35. The Clerk of the Court is directed to terminate Charles Meyer as a counterclaimant. This case is closed. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINCOLN PROFESSIONAL
BASEBALL, INC.,
4:13-CV-3101
Counterclaimant,
vs.

ORDER

BLUES EVENTS, LLC,
Counter-defendant.
This matter is before the Court on the Motion for Default Judgment
(filing 62) filed by the counterclaimant, Lincoln Professional Baseball, Inc.
(LPB). The motion will be granted.
LPB's motion asks the Clerk of the Court to enter a default judgment
for a sum certain pursuant to Fed. R. Civ. P. 55(b)(1) and NECivR 55.1(b).
However, the Court instructed the clerk's office not to do so. By its terms,
Rule 55(b)(1) permits the clerk to enter judgment for a sum certain "against a
defendant who has been defaulted for not appearing[.]" But the counterdefendant, Blues Events, LLC, did appear through counsel, and litigated this
case through summary judgment. And when a party has appeared, default
judgment must be entered by the Court pursuant to Rule 55(b)(2). See, Sun
Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir.
1989); United States v. Smith, 212 F.R.D. 480, 481 (M.D.N.C. 2002); see also
Citizens Bank v. Parnes, 376 Fed. Appx. 496, 506 (6th Cir. 2010). The Court
will, therefore, consider the merits of LPB's motion pursuant to Rule 55(b)(2).
Rule 55(b)(2) entitles a party who has appeared to be served with
written notice of the application for default judgment at least 7 days before
the application is heard. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86
F.3d 852, 856 (8th Cir. 1996). Blues Events was provided with electronic
notice pursuant to the Court's local rules, which constitutes written notice
within the meaning of the Federal Rules of Civil Procedure. See, Fed. R. Civ.
P. 5(d)(3); NECivR 5.2(a). And the application was filed on September 24,
2014, which means that the notice required by Rule 55(b)(2) has been
provided. See Ackra, 86 F.3d at 856; see also, Rule 55(b)(2); Fed. R. Civ. P.
6(d); NECivR 6.1(b).
When a default is entered, facts alleged in the complaint—except as to
damages—may not be later contested. Marshall v. Baggett, 616 F.3d 849, 852

(8th Cir. 2010); Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010). But it
remains for the 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. Id. It is, therefore, incumbent upon the Court to ensure
that the unchallenged facts constitute a legitimate cause of action before
entering final judgment. Marshall, 616 F.3d at 852-53. Having examined
LPB's counterclaim, filing 17 at 34-37, the Court finds that it states a claim
for breach of contract under Nebraska law.1 See generally Kotrous v. Zerbe,
846 N.W.2d 122, 126 (Neb. 2014) (setting forth elements required to plead
breach of contract claim).
Whether an evidentiary hearing is necessary to determine damages is
entrusted to the Court's discretion. See, Stephenson v. El-Batrawi, 524 F.3d
907, 915-16 (8th Cir. 2008); United States v. Ford 250 Pickup, 980 F.2d 1242,
1246 (8th Cir. 1992); Taylor v. City of Ballwin, 859 F.2d 1330, 1332-33 (8th
Cir. 1988). An evidentiary hearing is unnecessary here. LPB's motion is
accompanied by an affidavit that sets forth the basis of the damages sought.
Filing 63-1. The Court finds that damages are capable of being computed on
the basis of the facts of record, obviating the need for an evidentiary hearing.
See Taylor, 859 F.2d at 1333; see also Holman v. Nat'l Postal Mail Handlers
Union, 117 F.3d 1422, 1997 WL 374398, at *1 (8th Cir. 1997) (unpublished
table decision).
The Court will, therefore, grant LPB's motion for default judgment and
enter judgment in the amount of $215,668.35. Because this order, along with
the Court's Memorandum and Order of January 30, 2014 (filing 46), fully
dispose of this case, the Court will enter a separate judgment pursuant to
Fed. R. Civ. P. 58.
IT IS ORDERED:
1.

LPB's Motion for Default Judgment (filing 62) is granted.

2.

Judgment is entered in favor of LPB, and against Blues
Events, in the amount of $215,668.35.

One small housekeeping matter also requires attention: on the Court's docket, both LPB
and Charles Meyer are listed as counterclaimants. Presumably, this is because both were
initially sued by the plaintiffs, and the counterclaim that remains at issue was contained in
their joint answer. But it is apparent from the pleading that LPB's counterclaim was just
that—LPB's counterclaim—and that Meyer was not intended to be a counterclaimant.
Meyer has not stated a claim for relief, but it is clear that he never intended to, and that his
presence on the docket as a "counterclaimant" is a docketing error. The Court will
accordingly direct the Clerk of the Court to terminate Meyer as a counterclaimant.
1

-2-

3.

The Clerk of the Court is directed to terminate Charles
Meyer as a counterclaimant.

4.

This case is closed.

5.

A separate judgment will be entered.

Dated this 7th day of October, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

-3-