Formulated Materials LLC v. Hico Concrete Inc

Filing 18

ORDER granting 17 Plaintiff's Motion for Default Judgment. Plaintiff is directed to submit the supplemental information as set forth within 14 days, or by 2/10/2025. A separate default judgment shall be entered upon determination of the amount of attorney fees and prejudgment and postjudgment interest, if any, to be awarded. Signed by Judge Scott L. Palk on 1/27/2025. (llg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
FORMULATED MATERIALS, LLC,
an Oklahoma limited liability company,
Plaintiff,
v.
HICO CONCRETE, INC.,
a Tennessee corporation,
Defendant.

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Case No. CIV-24-388-SLP

ORDER
On August 21, 2024, the Clerk of Court entered default against Defendant, Hico
Concrete, Inc. (Defendant). See Clerk’s Entry of Default [Doc. No. 16]. Plaintiff,
Formulated Materials, LLC (Plaintiff), now moves for entry of default judgment. See
Plaintiff’s Motion for Default Judgment, With Brief [Doc. No. 17]. Defendant has not
responded to the Motion.1 For the reasons that follow, Defendant’s Motion is GRANTED.

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Plaintiff did not serve the pending Motion on Defendant but Plaintiff was not required to do so.
Where a defendant chooses not to make an appearance, the plaintiff does not need to give the
defendant notice that they are seeking default. See Fed. R. Civ. P. 5(a)(2) (“[n]o service is required
on a party who is in default for failing to appear.”); see also A.P. Moller - Maersk A/S v. Safewater
Lines (I) Pvt., Ltd., 784 F. App’x 221, 227 (5th Cir. 2019) (neither party moving for default
judgment nor court were required to serve motion for default judgment on defaulting party where
party was in default for failing to appear). But in such circumstances, relief is limited to what is
set forth in the complaint so as to ensure the defendant has sufficient notice. See, e.g., Trustees of
the St. Paul Elec. Const. Indus. Fringe Benefit Funds v. Martens Elec. Co., 485 F. Supp. 2d 1063,
1065 (D. Minn. 2007).

I.

Background / Plaintiff’s Claims
On April 16, 2024, Plaintiff filed this action alleging the following claims for relief:

(1) breach of contract; (2) fraud in the inducement; (3) conversion; and (4) unjust
enrichment. Plaintiff’s claims arise out of the parties’ sales orders pursuant to which
Plaintiff sold its fireproofing, soundproofing, and waterproofing products to Defendant.
Plaintiff invoiced Defendant and delivered the products but Defendant has failed to pay the
invoiced amounts. Plaintiff seeks actual damages in the amount of $198,459.29.
II.

Procedural History
Defendant was timely served with the Complaint on April 25, 2024. See Proof of

Service [Doc. No. 10]. Defendant has failed to answer or otherwise respond to the
Complaint and the time for doing so has expired. As set forth, on August 21, 2024, the
Clerk of Court entered default. See Clerk’s Entry of Default [Doc. No. 16]. The record,
therefore, reflects that Plaintiff has satisfied the procedural requirements for entry of a
default judgment. See Fed. R. Civ. P. 55(b).
III.

Jurisdiction
Initially, the Court must consider both whether subject matter exists and whether

the exercise of personal jurisdiction over the defendant is proper. See, e.g., Bixler v. Foster,
596 F.3d 751, 761 (10th Cir. 2010); Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 116970 (10th Cir. 2011); Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986).
A.

Subject Matter Jurisdiction

The Court has subject-matter jurisdiction over this case under 28 U.S.C.
§ 1332(a)(1). The parties are citizens of different states. See Disclosure Statements [Doc.
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Nos. 4 and 5]; see also Compl. [Doc. No. 1], ¶¶ 2-3. Additionally, the amount in
controversy exceeds $75,000, excluding interests and costs. See Compl., ¶ 20; see also
Invoices [Doc. No. 1-1]; AR Aging Report [Doc. No. 1-2]; Kenney Aff. [Doc. No. 17-1].
B.

Personal Jurisdiction

The Court has considered the pleadings and the Affidavit of Austin Keeney and
concludes that it has personal jurisdiction over Defendant. See, e.g., Sharpshooter
Spectrum Venture, LLC v. Consentino, Case No. CIV-09-0150-WDM-KLM, 2011 WL
3159094, at *2 (D. Colo. July 26, 2011) (“[W]here, as here, the issue is determined on the
basis of the pleadings and affidavits, that burden may be met by a prima facie showing.”)
(footnote omitted) (citing Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011)).
Plaintiff submits evidence to show that specific personal jurisdiction exists over
Defendant based on Defendant having “purposefully directed it activities at residents of
the forum state.” See Old Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 904 (10th
Cir. 2017). Plaintiff has further shown that its claims “arise out of or relate to [D]efendant’s
contacts with the forum.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351,
359 (2021) (citations omitted).
Plaintiff is an Oklahoma limited liability company. Mr. Keeney is Plaintiff’s
General Counsel. Keeney Aff., ¶ 2. Mr. Keeney has described the commercial relationship
between the parties and Defendant’s contacts with the forum. See id., ¶¶ 3-10. The Court
finds Defendant purposefully directed its activities at Plaintiff, a resident of the State of
Oklahoma, and that Plaintiff’s claims arise out of and relate to Defendant’s contacts with
Oklahoma. Thus, Plaintiff has shown Defendant’s minimum contacts with the forum.
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Moreover, nothing in the record suggests that the assertion of personal jurisdiction does
not comport with “fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476 (1985).
IV.

Uncontested Facts / Liability and Damages
“[T]he entry of default judgment is committed to the sound discretion of the district

court.” Tripodi v. Welch, 810 F.3d 761, 764 (10th Cir. 2016). Upon an entry of default,
the Court takes all the well-pleaded facts in a complaint as true. Id. at 765 (10th Cir. 2016)
(noting that after default is entered, “a defendant admits to a complaint’s well-pleaded facts
and forfeits his or her ability to contest those facts.”) (citation omitted); United States v.
Craighead, 176 Fed. App’x 922, 924 (10th Cir. 2006) (“The defendant, by his default,
admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus established.”). However,
the Court need not accept the moving party’s legal conclusions or factual allegations
relating to the amount of damages sought.
Therefore, before granting a default judgment, the Court must first ascertain whether
the uncontested facts constitute a legitimate cause of action, since a party in default does
not admit mere conclusions of law. See, e.g., Mathiason v. Aquinas Home Health Care,
Inc., 187 F. Supp. 3d 1269, 1274-75 (D. Kan. 2016) (“Even after default, it remains for the
court to consider whether the unchallenged facts constitute a legitimate basis for the entry
of a judgment since a party in default does not admit conclusions of law.”).

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A.

Breach of Contract

Plaintiff seeks default judgment on its breach of contract claim against Defendant.
Under Oklahoma law, to recover for breach of contract, a party must prove: (1) the
formation of a contract; (2) a breach thereof; and (3) actual damages as a result of the
breach. Valley View Agri, LLC v. Producers Coop Oil Mill, Case No. CIV-15-1297-D,
2017 WL 1208670 at *2 (W.D. Okla. Mar. 31, 2017).
Plaintiff has plausibly alleged a breach of contract claim against Defendant.
Plaintiff has included the invoices showing the goods ordered by Defendant and has
demonstrated that it delivered those goods to Defendant. See Doc. No. 1-1 (Invoices); see
also Keeney Aff., ¶¶ 4-9. Plaintiff has also shown that Defendant breached the contract by
failing to pay for the goods. See Compl., ¶¶ 14-20, 22-26; Keeney Aff., ¶¶ 7-8. And
Plaintiff has demonstrated that it has suffered actual damages as a result. See Compl., ¶ 16;
Keeney Aff., ¶ 10. Thus, Plaintiff has established all the elements of a breach of contract
claim to support entry of default judgment.
Plaintiff also seeks a default judgment on its claims for fraud in the inducement,
conversion and unjust enrichment. But Plaintiff points to the same conduct of Defendant
to support each of those claims for relief and does not allege any tortious conduct
independent of the breach of contract. Nor does Plaintiff allege any injury resulting from
Defendant’s fraud other than the damages to which it is already entitled under its breach of

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contract claim. Under these circumstances, Plaintiff cannot recover duplicative damages.2
Therefore, the Court deems it unnecessary to address these additional claims.

See, e.g.,

Gentry v. Kostecki, No. CIV-20-1284-WJM-STV, 2022 WL 168704 (D. Colo. Jan. 19,
2022) (declining to consider the plaintiff’s request for default judgment on fraudulent
inducement, conversion and unjust enrichment claims where the plaintiff would “recover
the same amount she is already recovering through her breach of contract claim [and] the
bar against double recovery precludes her from doing this”); Ace Oilfield Rentals, LLC v.
Western Dakota Fabrication, LLC, No. CIV-15-672-D, 2017 WL 3841891 at *7 (W.D.
Okla. Sept. 1, 2017) (recognizing that “[d]ouble recovery is prohibited in Oklahoma” and
declining to assess damages on default judgment for claims including conversion, fraud
and unjust enrichment where those claims were “subsumed” in the plaintiff’s breach of
contract claim (citing Kruchowski v. Weyerhaeuser Co., 202 P.3d 144, 153-54 (Okla.
2008)). Accordingly, the Court limits its assessment of damages to Plaintiff’s breach of
contract claim.
B.

Damages

“If [a] defendant does not contest the amount prayed for in the complaint [by failing
to answer] and the claim is for a sum certain or a sum that can be made certain by
computation, the judgment generally will be entered for that amount without any further
hearing.” Craighead, 176 Fed.Appx. at 925 (citation omitted); Hunt v. Inter-Globe Energy,

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See, e.g, Specialty Beverages, L.L.C. v. Pabst Brewing Co., 537 F.3d 1165, 1180 (10th Cir. 2008)
(addressing fraud in the inducement); Member Servs. Life Ins. Co. v. Am. Nat. Bank & Trust Co.
of Sapulpa, 130 F.3d 950, 957 (10th Cir. 1997) (addressing unjust enrichment).

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Inc., 770 F.2d 145, 148 (10th Cir. 1985) (“[A] court may enter a default judgment without
a hearing only if the amount claimed is a liquidated sum or one capable of mathematical
calculation.”).
Here, Plaintiff seeks a sum certain based on the amounts invoiced and goods
delivered to Defendant. Plaintiff has alleged this amount in the Complaint and has attached
the invoices to the Complaint. Additionally, Plaintiff has provided evidentiary support for
the damages claimed in the Affidavit of Mr. Keeney. Thus, the Court finds it proper to
award actual damages to Plaintiff on its breach of contract claim in the amount of
$198,459.29, exclusive of any award of interest, costs or attorney fees.
C.

Attorney’s Fees and Costs

Plaintiff asks the Court to award attorney’s fees and costs pursuant to Okla. Stat. tit.
12, § 936.3 Plaintiff included such a request in its Complaint. Section 936 permits the
recovery of a reasonable attorney fee to the prevailing party in any civil action to recover
“on a[] . . . contract relating to the purchase or sale of goods, wares, or merchandise, unless
otherwise provided by law or the contract which is the subject of the action. . . .” Id. Here,
Plaintiff has brought a civil action to recover on a contract relating to the purchase or sale
of goods, wares or merchandise. Thus the Court finds Defendant is liable to Plaintiff for a
reasonable attorney fee. The Court cannot determine the amount of attorney fees as
Plaintiff has presented no evidence of the same. Plaintiff shall submit an affidavit to the

“In diversity cases, attorney fees are a substantive matter controlled by state law.” Combs v.
Shelter Mut. Ins. Co., 551 F.3d 991, 1001 (10th Cir. 2008). Because the Court’s jurisdiction is
based on diversity, Oklahoma law on attorney fees governs.
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Court presenting and supporting its request for a reasonable attorney fee within fourteen
(14) days of the date of this Order.
D.

Prejudgment and Postjudgment Interest

Plaintiff also seeks to recover prejudgment and postjudgment interest, but has failed
to address the applicable law governing that request or the applicable accrual periods or
rates. If Plaintiff seeks such a recovery, Plaintiff shall submit a more detailed request
within fourteen (14) days of the date of this Order.
V.

Conclusion
For the reasons stated above, the Court GRANTS Plaintiff's Motion for Default

Judgment [Doc. No. 17]. Plaintiff is directed to submit the supplemental information as
set forth within fourteen (14) days or by February 10, 2025. A separate default judgment
shall be entered upon determination of the amount of attorney fees and prejudgment and
postjudgment interest, if any, to be awarded.
IT IS SO ORDERED this 27th day of January, 2025.

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