Wilson et al v. Blanton et al
REPORT AND RECOMMENDATION that 18 MOTION for Default Judgment against Timothy W. Blanton be denied. Objections to R&R due by 2/13/2017. Signed by Magistrate Judge Terence P. Kemp on 1/30/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Carol A. Wilson, Administrator,:
Case No. 2:16-cv-390
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
Thomas J. Blanton, Jr., et al.,
REPORT AND RECOMMENDATION
Plaintiff has filed an application for entry of default
against defendant Timothy W. Blanton.
For the following reasons,
it will be recommended that the application for entry of default
Plaintiffs, the Administrator and Trustees of various Ohio
employee benefit plans, filed this action on February 9, 2016,
naming as defendants Thomas J. Blanton, Jr. and Timothy W.
Blanton, individuals both alleged to be doing business as Blanton
The complaint alleges that “Defendant”
(which apparently refers to the business concern, Blanton
Landscaping) failed to make contributions to the funds as it was
obligated to do under a heavy highway construction agreement and
(Doc. 1, Ex. A).
The agreement and addendum attached
to the complaint purport to have been entered into by Blanton
Landscaping; each document appears to have been signed “For the
Company” by Thomas Blanton.
The complaint does not allege that
Timothy Blanton signed any agreements with Plaintiffs, nor does
it attach any such agreements.
Separate summons were issued for Thomas and Timothy Blanton
“D/B/A Blanton Landscaping.”
Both of them were served on June 8,
On July 5, 2016, the plaintiffs applied for
and received an entry of default.
On July 12, 2016,
Thomas Blanton filed a motion for relief from entry of default,
which the court granted on September 28, 2016.
(Doc. 9, 13).
then filed an answer to the complaint and a case management order
has been issued.
Unlike Thomas, Timothy filed nothing.
On November 22, 2016,
the plaintiffs moved for default judgment against him.
The time for responding has passed and no response has been
The motion now is ripe for decision.
Under the Federal Rules of Civil Procedure, a plaintiff is
not automatically entitled to a default judgment simply because a
defendant is properly served and fails to answer.
When a party
applies to the Court for a default judgment under Rule 55(b)(2),
the Court has discretion to determine whether such a judgment is
One of the factors to consider is “whether the
facts alleged in the complaint state a valid cause of action.”
Cox v. Correctional Medical Services, Inc., 2007 WL 2873049, *4
(E.D. Mich. Sept. 26, 2007), citing, inter alia, Au Bon Pain
Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).
failing to respond to a complaint is an admission of the facts
set forth in the complaint, those facts “may or may not be
sufficient to establish a defendant's liability.”
Pitts ex rel.
Pitts v. Seneca Sports, Inc., 321 F.Supp.2d 1353, 1357 (S.D.
The primary problem with the motion for default judgment is
that the complaint does not, on its face, allege any facts under
which Timothy Blanton can be held liable.
The complaint names
him as an individual and does not allege that he ever entered
into an agreement to make contributions to any of the Plaintiff
Absent such facts, the complaint does not support the
entry of a default judgment.
Both Blantons were sued as individuals “D/B/A” Blanton
That description does not alter the fact that each
was sued in his individual capacity.
“A ‘doing business as’
designation is merely descriptive of the person who does business
under some other name.”
In re Viva Vista Ventures, Inc., 2010 WL
3366408 (Bankr. N.D. Ohio August 23, 2010), citing Trustees of
the Mason Tenders, Dist. Council Welfare Fund v. Faulkner, 484
F.Supp.2d 254, 257 (S.D.N.Y. 2007).
However, “[i]t does not
involve an entity separate from the person operating the
As explained by one court in noting that courts
faced with the issue have held that the use of the d/b/a
designation within a caption is not legally significant:
“d/b/a” means “doing business as” but is merely
descriptive of the person or corporation who does
business under some other name. Doing business under
another name does not create an entity distinct from
the person operating the business. The individual who
does business as a sole proprietor under one or several
names, remains one person, personally liable for all
his obligations. So also with a corporation which uses
more than one name.
Woodall v. Underwriters at Lloyds, London, 2007 WL 1231688, *2
(E.D. Tenn. April 26, 2007) (citations omitted); see also Pension
Ben.Guar. Corp. v. Uforma/Shelby Business Forms, Inc., 2014 WL
221941, *5 (S.D. Ohio Jan. 21, 2014) (under Ohio law, the sole
proprietorship has no legal identity separate from the individual
who owns it).
Neither the court record nor a search of the Ohio Secretary
of State reveals an Ohio registered legal entity named “Blanton
Landscaping,” and Plaintiff does not allege that this “company”
has a separate legal existence.
Under Ohio law, a limited
liability company, and a corporation are distinct legal entities
separate from an individual, see Ohio Revised Code §§1701.01, et
seq.; 1705.01, et seq, but a D/B/A does not.
As a result, the
name Blanton Landscaping is simply descriptive of Thomas and
Timothy as individuals.
That means that when Thomas signed
agreements on behalf of Blanton Landscaping, he was simply
signing them as an individual.
Absent any allegation in the
complaint that he also had the authority to bind Timothy, as an
individual, to those agreements, there would appear to be no
basis on which a judgment could be entered against Timothy for
breach of those agreements.
Consequently, the Court will
recommend that the application for default be denied.
For the reasons set forth above, it is recommended that the
motion for default judgment (Doc. 18) be denied.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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