United States of America v. Owens et al

Filing 16

ORDER granting in part and denying in part 12 Motion for Default Judgment; denying 13 Motion to Set Aside Default. Signed by Judge Samuel H. Mays, Jr on 03/20/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
LESLEY OWENS,
Defendant,
SAMUEL OWENS,
Defendant Surety.

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Case No. 13-02984-SHM

ORDER

Before the Court are two motions.

On December 6, 2016,

Plaintiff United States of America (the “Government”) filed a
Motion for Entry of Judgment by Default.
Mot.”).)

(ECF No. 12 (“Gov’t

Neither Defendant Lesley Owens nor Defendant Surety

Samuel Owens has filed a response to the Government Motion. 1
deadline for doing so has passed.
On December
Aside

a

Mot.”).)

Default

20,

2016,

or

Default

L.R. 7.2(a)(2).
filed

Judgment.

a

Motion

(ECF

No.

for

Setting

13

(“Owens

On December 28, 2016, the Government filed a response

to the Owens Motion.

1

Owens

The

(Gov’t’s Resp. in Opp’n to Defs.’ Mot. for

In what follows, Lesley Owens will be referred to as “Owens”
and Samuel Owens will be referred to using his full name.

Setting Aside a Default J., ECF No. 14 (“Gov’t Resp. to Owens
Mot.”).)

On January 10, 2017, Owens filed a reply in support of

the Owens Motion.

(Defs.’ Reply Mot. to Gov’t’s Resp. in Opp’n

to Defs.’ Mot for Setting Aside a Default or Default J., ECF No.
15 (“Reply ISO Owens Mot.”).)
For
DENIED.

the

reasons

discussed

below,

the

Owens

Motion

is

The Government Motion is DENIED to the extent it seeks

prejudgment interest, and is GRANTED in all other respects.
I.

BACKGROUND
On August 12, 2008, a federal grand jury returned a single-

count indictment charging Owens, a convicted felon, with possessing a firearm, in violation of 18 U.S.C. § 922(g).

(Indict-

ment, ECF No. 1 in 08-20257.) 2
A detention hearing for Owens was held before a magistrate
judge on September 8, 2008.
20257.)

(Minute Entry, ECF No. 9 in 08-

After that hearing, the magistrate judge issued an Or-

der Setting Conditions of Release.

(ECF No. 14 in 08-20257.)

“In order reasonably to assure the appearance of the defendant,”
the magistrate judge ordered that Owens’s release be “subject
to . . . [execution of] a bond in the amount of $15,000.00 or an
agreement to forfeit upon failure to appear as required,” with
10 percent of that $15,000.00 “to be deposited into the registry

2

References to “08-20257” are to filings in United States v. Owens, No. 2:08-20257-SHM (W.D. Tenn.).

2

of the Court.”

(Id. at 1.)

In a section titled “Advice of Pen-

alties and Sanctions,” the Order Setting Conditions of Release
stated, inter alia, that “a failure to appear may result in the
forfeiture of any bond posted.”

(Id. at 2.)

Owens signed the

Order, attesting that he was “aware of the conditions of release”
above.”

and

“aware

of

the

penalties

and

sanctions

set

forth

(Id. at 3.)

On December 5, 2008, Owens and Samuel Owens submitted an
Appearance Bond.

(ECF No. 33 in 08-20257 (“Appearance Bond”).)

The Appearance Bond stated:
We, the undersigned, jointly and severally acknowledge that we and our . . . personal
representatives,
jointly
and
severally, are bound to pay to the United
States of America the sum of $15,000.00, and
there has been deposited in the Registry of
the
Court
the
sum
of
$1,500.00
[in
cash] . . . .
The conditions of this bond are that
[Owens] is to appear before this court and
at such other places as [Owens] may be required to appear, in accordance with any and
all orders and directions relating to [Owens’s]
appearance
in
[Case
No.
0820257] . . . .
[Owens] is to abide by any
judgment entered in such matter by surrendering to serve any sentence imposed and
obeying any order or direction in connection
with such judgment.
If [Owens] appears as ordered or notified and otherwise obeys and performs the
foregoing conditions of this bond, then this
bond is to be void, but if [Owens] fails to
obey or perform any of these conditions,
payment of the amount of this bond shall be

3

due forthwith.
Forfeiture of this bond for
any breach of its conditions may be declared
by any United States District Court having
cognizance of [Case No. 08-20257] at the
time of such breach and if the bond is forfeited and if the forfeiture is not set
aside or remitted, judgment may be entered
upon motion in such United States District
Court against each debtor jointly and severally for the amount above stated, together
with interest and costs, and execution may
be issued and payment secured as provided by
the Federal Rules of Criminal Procedure and
any other laws of the United States.
(Id. at 1.)

The second page of the Appearance Bond states that

Samuel Owens provided the $1,500.00 in cash.

(Id. at 2.)

On January 15, 2009, after a trial, a jury found Owens
guilty.

(See, e.g., Jury Verdict, ECF No. 57 in 08-20257.)

On January 26, 2009, the Government filed a Motion to Detain Defendant Prior to Sentencing.
(“Mot. to Detain”).)

(ECF No. 52 in 08-20257

On January 30, 2009, a magistrate judge

held a hearing on the Motion to Detain.
54 in 08-20257.)

(Minute Entry, ECF No.

Owens did not appear at that hearing.

(Id.)

The magistrate judge issued an arrest warrant for Owens later
that day.

(Warrant for Arrest, ECF No. 55 in 08-20257.)

Owens was arrested on February 26, 2009, and detained pending a hearing on bond revocation and detention.

(Executed War-

rant for Arrest, ECF No. 58 in 08-20257; Minute Entry, ECF No.
59 in 08-20257.)
that hearing.

On March 3, 2009, Owens waived his right to

(Minute Entry, ECF No. 62 in 08-20257.)

4

Later

that day, a magistrate judge entered orders revoking Owens’s
bond and detaining Owens until his sentencing.

(Order Revoking

Bond, ECF No. 64 in 08-20257; Order of Detention Pending Trial,
ECF No. 65 in 08-20257.)

On June 19, 2009, the Court sentenced

Owens to 235 months of incarceration and three years of supervised release.

(Minutes, ECF No. 84 in 08-20257.)

On June 22, 2009, Samuel Owens filed a Motion for Refund of
Cash Appearance Bond.
fund”).)

(ECF No. 86 in 08-20257 (“Mot. for Re-

That motion represented that “[t]he record of this

case reflects that the defendant has complied with the requirements of [the Appearance Bond] and orders of this Court.”
It

requested

deposit.”

a

“refund

of

the

[$1,500.00]

(Id.)
cash

(Id.)

On June 30, 2009, the Government filed a response to the
Motion for Refund.
No. 92 in 08-20257.)

(Gov’t Resp. to Mot. for Refund of Bond, ECF
The Government argued that “[Owens’s] bond

should not be refunded, but revoked based on his failure to comply with conditions of release, specifically, his failure to appear” at the hearing on January 30, 2009.

(Id. at 1.)

On July 8, 2009, the Court entered an Order Denying Motion
for Refund of Cash Appearance Bond.

(ECF No. 93 in 08-20257.)

The Court stated that “[u]nder the conditions of his bond, [Owens]

was

required

to

appear

at

all

proceedings,”

and

that

“[f]ailure to comply with that condition results in forfeiture

5

of the bond.”

(Id. at 1.)

Because Owens “failed to comply” ––

by failing to appear at the hearing on January 30, 2009 –– the
Court denied the Motion for Refund.

(Id. at 1–2.)

On December 16, 2013, the Government commenced this action
by filing a Complaint for Judgment on Forfeiture of Bond.
No. 1 (“Compl.”).)

(ECF

The Complaint asks the Court to “enter a

judgment on forfeiture of bond against . . . Owens and . . .
Samuel Owens, jointly and severally, in the sum of $15,000.00,
plus interest and costs and credit to the judgment entered herein any monies now on deposit in the Registry of the Court.”
(Id. at 1.)

It also asks the Court to “forward said monies now

on deposit in the Registry of Court to the crime victims fund in
[Case No.] 2:08-CR-20257-SHM . . . .”

(Id.)

On January 27, 2014, Owens submitted a letter to the Court.
(ECF No. 5 (“January 2014 Letter”).)

The letter represented

that Owens had been hand-delivered the summons associated with
the Complaint on January 24, 2014, and that Owens planned to respond to the Complaint within 20 days of receiving the summons.
(Id.)

It stated that Owens might be moved to another facility

in the near future and, as such, might be “separated from [his]
legal materials.”

(Id. (emphasis removed).)

If that happened,

Owens wrote, “I will write before the 20 days are over if additional time is needed . . . .”

(Id.)

6

Owens did not file an an-

swer or other response to the Complaint, nor did he submit any
motion seeking an extension of time to file an answer.
On March 7, 2014, the Government filed a Motion for Entry
of Default.

(ECF No. 8 (“Mot. for Entry of Default”).)

That

motion represented that Owens and Samuel Owens “have failed to
plead or otherwise defend as provided by the Federal Rules of
Civil Procedure,” and asked the Clerk of Court to make an entry
of default.

(Id.)

On March 14, 2014, the Clerk of Court filed

an entry of default against Owens and Samuel Owens.

(Clerk’s

Entry of Default, ECF No. 9 (“Entry of Default”).)
Also on March 14, 2014, Owens submitted a letter response
to the Motion for Entry of Default.
Letter”).)
2014.

(Id.)

(ECF No. 10 (“March 2014

That letter reached the Clerk of Court on March 17,
Owens argued that he had submitted a letter to the

Court responding to the Complaint, and described the contents of
his purported letter.

(Id.)

No such letter appears on the

Court’s docket.
On December 6, 2016, the Government filed the Government
Motion.

On December 20, 2016, Owens filed the Owens Motion.

On

December 28, 2016, the Government filed the Government Response
to the Owens Motion.

On January 10, 2017, Owens filed the Reply

in Support of the Owens Motion.

7

II.

JURISDICTION
A.

Subject-Matter Jurisdiction

The

Government

§ 3146(d).

brings

(Compl. 1, 3.)

its

Complaint

under

18

U.S.C.

The Court has federal-question ju-

risdiction under 28 U.S.C. § 1331.
B.

Personal Jurisdiction

The Government Motion seeks entry of a default judgment.
(Gov’t Mot. 1.)

A default judgment is invalid unless the court

has proper jurisdiction.

See, e.g., Citizens Bank v. Parnes,

376 F. App’x 496, 501 (6th Cir. 2010) (“Personal jurisdiction
over a defendant is a threshold issue that must be present to
support any subsequent order of the district court, including
entry of [a] default judgment.”) (citing Kroger Co. v. Malease
Foods Corp., 437 F.3d 506, 510 (6th Cir. 2006)).

“Proper ser-

vice of process is required in order for the court to obtain
personal jurisdiction over each defendant.”

Prince v. NLRB, No.

1:16-CV-419, 2017 WL 375703, at *1 (S.D. Ohio Jan. 25, 2017)
(citing O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d
345, 353 (6th Cir. 2003)).
The court has personal jurisdiction over Owens.
was issued to Owens.

A summons

(Summons in a Civil Action, ECF No. 3.)

A

U.S. Marshal, at the request of the U.S. Attorney’s Office, delivered a copy of the summons and complaint to a counselor at
FCI Memphis.

(Process Return and Receipt, ECF No. 6.)

8

The Jan-

uary 2014 Letter demonstrates that on January 24, 2014, Owens
personally received service from the counselor.

(January 2014

Letter.)
Service is proper.

“Delivery of a summons and complaint to

a prisoner by a prison employee is considered effective service
on that prisoner.”

In re Terrorist Attack on Sept. 11, 2001,

No. 03 CIV. 6978 (RCC), 2004 WL 1348996, at *1 (S.D.N.Y. June
14, 2004) (citing United States v. Letscher, 83 F. Supp. 2d 367,
380 (S.D.N.Y. 1999)).

The Court has personal jurisdiction over

Owens.
The Court also has personal jurisdiction over Samuel Owens.
Under Rule 4(e)(1), service is effected by “following state law
for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or
where service is made.” 3

Tennessee law governs here.

Under Tennessee Rule of Civil Procedure 4.04(10),
Service by mail of a summons and complaint
upon a defendant may be made by the plaintiff, the plaintiff’s attorney or by any
person authorized by statute.
After the
complaint is filed, the clerk shall, upon
request, furnish the original summons, a
certified copy thereof and a copy of the
filed complaint to the plaintiff, the plaintiff’s attorney or other authorized person
for service by mail.
Such person shall
3

Rule 4(e)(2) provides three other ways to serve an individual
within a judicial district of the United States. The Government
did not comply with any of those alternatives.
(See Proof of
Service, ECF No. 7 (“Proof of Service”).)

9

send, postage prepaid, a certified copy of
the summons and a copy of the complaint by
registered return receipt or certified return receipt mail to the defendant. . . .
The original summons shall be used for return of service of process pursuant to Rule
4.03(2).
Service by mail shall not be the
basis for the entry of a judgment by default
unless the record contains a return receipt
showing personal acceptance by the defendant
or by persons designated by Rule 4.04 or
statute. . . .
A summons was issued to Samuel Owens.
Action, ECF No. 4.)

(Summons in a Civil

The Government sent the summons and com-

plaint to Samuel Owens by certified return receipt mail.
of Service.)

(Proof

The Proof of Service includes a signed receipt

demonstrating that Samuel Owens received the mailing on February
4, 2014.

(Id.)

Service on Samuel Owens is proper under Tennessee Rule of
Civil Procedure 4.04(10).

The Court has personal jurisdiction

over Samuel Owens.
III. STANDARD OF REVIEW
A.

Motion to Set Aside an Entry of Default

The Owens Motion cites Rule 60(b).

(Owens Mot. 1–2.)

Rule

60(b) addresses grounds for relief from entry of a default judgment.

The Court has not entered a default judgment.

reflects only the Clerk’s entry of a default.

The docket

Rule 60(b) is not

applicable here.
Rule
“[t]he

55(c)

court

is

may

the
set

applicable
aside

an
10

rule.

entry

Under
of

Rule

default

for

55(c),
good

cause . . . .”

The

“(1) ‘[w]hether
(2) ‘[w]hether

the
the

factors

for

determining

plaintiff

defendant

has

will
a

good

be

meritorious

cause

are

prejudiced;’
defense;’

and

(3) ‘[w]hether culpable conduct of the defendant led to the default.’”

Devlin v. Kalm, 493 F. App’x 678, 685 (6th Cir. 2012)

(alterations in original) (quoting United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983)); see
also U.S. S.E.C. v. Merklinger, 489 F. App’x 937, 939 (6th Cir.
2012) (quoting United States v. $22,050.00 U.S. Currency, 595
F.3d 318, 324 (6th Cir. 2010)) (same elements).
“Although [these three factors] are the same factors considered by a court in deciding whether to set aside a default
judgment, the factors should be applied more leniently to relieve a party from a procedural entry of default to reflect the
strong preference for trial on the merits in federal courts.”
Marbly v. Dep’t of Treasury, 22 F. App’x 371, 372 (6th Cir.
2001) (citing Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 193–94 (6th Cir. 1986)).
B.

Motion for Entry of Default Judgment

Rule 55(b) addresses entry of default judgments:
(1)

By the Clerk. If the plaintiff’s claim
is for a sum certain or a sum that can
be made certain by computation, the
clerk –– on the plaintiff’s request,
with an affidavit showing the amount
due –– must enter judgment for that
amount and costs against a defendant

11

who has been defaulted for not appearing and who is neither a minor nor an
incompetent person.
(2)

By the Court.
In all other cases, the
party must apply to the court for a default judgment. A default judgment may
be entered against a minor or incompetent person only if represented by a
general guardian, conservator, or other
like fiduciary who has appeared. If the
party against whom a default judgment
is sought has appeared personally or by
a representative, that party or its
representative
must
be
served
with
written notice of the application at
least 7 days before the hearing.
The
court may conduct hearings or make referrals
––
preserving any federal statutory right
to a jury trial –– when, to enter or
effectuate judgment, it needs to:
(A)

conduct an accounting;

(B)

determine the amount of damages;

(C)

establish the truth of any allegation by evidence; or

(D)

investigate any other matter.

The hearing noted in Rule 55(b)(2) is not mandatory.

A

hearing is not necessary where there is sufficient evidence in
the record to make a determination as to damages.

See, e.g.,

Vesligaj v. Peterson, 331 F. App’x 351, 355 (6th Cir. 2009);
Boards of Trustees of Ohio Laborers’ Fringe Benefit Programs v.
Akron

Insulation

&

Supply,

Inc.,

No.

749202, at *3 (S.D. Ohio Feb. 27, 2017).

12

2:15-CV-2864,

2017

WL

IV.

ANALYSIS
A.

Owens Motion
1.

Samuel Owens

Samuel Owens has not filed any document addressing the Owens Motion.

The Owens Motion presents some argument about the

propriety of a default (and default judgment) as to Samuel Owens.

(Owens Mot. 7.)

Owens is a pro se litigant and cannot

represent Samuel Owens.

See, e.g., Shepherd v. Wellman, 313

F.3d 963, 970–71 (6th Cir. 2002); Allen v. Osterhout, No. 15-CV12867, 2017 WL 522835, at *3 (E.D. Mich. Jan. 19, 2017) (citing
Shepherd), report and recommendation adopted, No. 15-12867, 2017
WL 512785 (E.D. Mich. Feb. 8, 2017).

To the extent the Owens

Motion seeks to set aside the default entered against Samuel Owens, it is DENIED.
2.

Owens

As noted above, three factors determine whether there is
good

cause

to

grant

a

motion

under

Rule

55(c):

(1)

whether

granting the motion would prejudice the plaintiff, (2) whether
the defendant has a meritorious defense, and (3) whether culpable conduct by the defendant led to the default.
The prejudice factor favors Owens.

The Government does not

explain how it would be prejudiced were the Owens Motion grant-

13

ed. 4

(See generally Gov’t Resp. to Owens Mot.)

argument would not be well taken.

Any prejudice

The Government moved for an

entry of default in March 2014, and the Clerk entered a default
within a week.

(Mot. for Entry of Default; Entry of Default.)

The Government waited more than two-and-a-half years to request
a default judgment.

(Gov’t Mot.)

Under these circumstances,

the Government cannot show prejudice.
The meritorious-defense factor favors the Government.

“[A]

defense is meritorious if ‘there is some possibility that the
outcome of the suit after a full trial will be contrary to the
result achieved by the default.’”

$22,050.00 U.S. Currency, 595

F.3d at 326 (quoting Burrell v. Henderson, 434 F.3d 826, 834
(6th Cir. 2006)).

The Sixth Circuit has opined that “a defense

is meritorious if it is ‘good at law,’ regardless of whether the
defense

is

actually

likely

to

succeed

on

the

merits.”

Id.

(quoting Williams v. Meyer, 346 F.3d 607, 614 (6th Cir. 2003)).
“[A]ll that is needed is ‘“a hint of a suggestion” which, proven
at trial, would constitute a complete defense.’”

4

Id. (quoting

The gravamen of the argument in the Government Response to Owens Motion is that Owens argues that his motion is based on Rule
60(b), “but he fails to provide any evidence of mistake, newly
discovered evidence, fraud, void judgment or any other reason.”
(Gov’t Resp. to Owens Mot. 4.)
As discussed above, the Owens
Motion is not a motion under Rule 60(b). It is a motion under
Rule 55(c).
Movants relying on Rule 55(c) do not need to show
any of the grounds listed in Rule 60(b)(1)–(6).

14

INVST Fin. Grp. v. Chem-Nuclear Sys., 815 F.2d 391, 399 (6th
Cir. 1987)).
Owens’s defense is unclear.

The Owens Motion states that

the March 2014 Letter presents “‘intrinsic circumstances’ and
facts that surrounded the default” involving misconduct by an
assistant U.S. Attorney and a detective with the Shelby County
Sheriff’s Office.

(Owens Mot. 3.)

The March 2014 Letter con-

tends that Owens has provided a prior letter to the Court detailing allegations of improper behavior.
1.)

The docket reflects no such letter.

(March 2014 Letter
The March 2014 Letter

asserts there were “illegal circumstances” by which the U.S. Attorney’s Office interfered with the conditions of Owens’s bond.
(Id.)

Owens discusses these circumstances in the Owens Motion

and the Reply in Support of the Owens Motion, and refers to portions of his sentencing hearing.

(Owens Mot. 3–5; Reply ISO Ow-

ens Mot. 2; Hr’g Tr. 31–41, ECF No. 97 in 08-20257.)
Owens’s argument appears to be that he failed to appear at
the hearing on January 30, 2009, because he was distracted by
efforts to cooperate with police officers to arrest other offenders.

(See, e.g., Owens Mot. 3–4.)

Nothing in Owens’s fil-

ings suggests, however, that Owens had any reason to believe he
did not need to attend the hearing.
meritorious defense to the Complaint.

15

Owens has not presented a

The culpable-conduct factor favors Owens.

“‘To be treated

as culpable, the conduct of a defendant must display either an
intent to thwart judicial proceedings or a reckless disregard
for the effect of its conduct on those proceedings.’”

Dassault

Systemes, SA v. Childress, 663 F.3d 832, 841 (6th Cir. 2011)
(quoting Shepard Claims Serv., 796 F.2d at 194).

“[I]n the con-

text of Rule 55(c), mere negligence or failure to act reasonably
is not enough to sustain a default.”

$22,050.00 U.S. Currency,

595 F.3d at 327.
The Government makes no culpable-conduct argument.
generally Gov’t Resp. to Owens Mot.)

(See

It is unclear whether Ow-

ens ever filed an answer or other response to the Complaint.
He states that he did, however, and he has filed responses to
other Court entries and Government filings.

There is no evi-

dence that Owens has acted with an intent to thwart these proceedings or recklessly disregarded the effect of his conduct on
the proceedings.
The prejudice and culpable-conduct factors favor Owens, but
the

meritorious-argument

factor

favors

the

Government.

The

Court is aware of no Sixth Circuit case dictating the outcome
when the prejudice and culpable-conduct factors favor the plaintiff, but the meritorious-argument factor favors the defendant. 5

5

The Sixth Circuit has decided that it is an abuse of discretion
for a district court to refuse to set aside an entry of default
16

In this case, the lack of a meritorious defense is key.

There

is no dispute that Owens violated the terms of the Appearance
Bond, and his filings suggest no way to avoid that conclusion.
Owens has not shown good cause to set aside the Entry of
Default.
B.

The Owens Motion is DENIED.
Government Motion

The Government Motion does not state the rule under which
it seeks relief.

Because the Government Motion seeks entry of a

default judgment, the Court understands the Government Motion to
rely on Rule 55(b).
Rule 55(b)(1) does not apply.

Rule 55(b)(1) requires that

the plaintiff provide “an affidavit showing the amount due.”
The affidavit supporting the Government Motion –– the “Zoccola
Affidavit” –– does not show the amount due.

It states that Ow-

ens and Samuel Owens owe the Government “$15,000.00, plus interest according to the law.”
Default ¶ 7, ECF No. 12.)
titled

to

recover

§ 2412(a)(2),”

but

(Aff. in Supp. of Entry of J. by
It also states the Government is “en-

filing

does

not

fees
state

pursuant
the

amount

to
of

28
those

U.S.C.
fees.

(Id. ¶ 9.) 6

where the meritorious-argument factor and the prejudice factor
favor the defendant.
O.J. Distrib., 340 F.3d at 353 (citing
Shepard Claims Serv., 796 F.2d at 193–94).
6

Rule 55(b)(1) also does not apply to the Government Motion as
to Owens because Rule 55(b)(1) applies only where a defendant
“has been defaulted for not appearing.” Owens was defaulted for
17

The Government Motion falls under Rule 55(b)(2). 7

As noted

above, no hearing is needed to resolve a Rule 55(b)(2) motion
where there is sufficient record evidence to determine damages.
Vesligaj, 331 F. App’x at 355; Ohio Laborers’ Fringe Benefit
Programs, 2017 WL 749202, at *3.

Although the Zoccola Affidavit

does not specifically state the amount of damages due (i.e., it
does not state an exact amount), there is sufficient record evidence here to determine damages.
The amount of the forfeited Appearance Bond is $15,000.00.
(Appearance Bond 1.)

Samuel Owens paid $1,500.00 of that sum as

a condition of Owens’s release in December 2008.

(Id.)

The Government seeks “filing fees pursuant to 28 U.S.C.
§ 2412(a)(2).”

(Zoccola Aff. ¶ 9.)

Under § 2412(a)(2), “[a]

judgment for costs, when awarded in favor of the United States
in an action brought by the United States, may include an amount
equal to the filing fee prescribed under” 28 U.S.C. § 1914(a).
failing to respond to the Complaint. But by submitting the January 2014 Letter, Owens did appear before the entry of default.
He was not defaulted for failing to appear. Rule 55(b)(1) “applies only to parties who have never appeared in the action; it
does not apply when a party appears and then merely fails to
participate in some subsequent stage of the proceedings.”
10A
Charles Alan Wright et al., Federal Practice & Procedure § 2683
(4th ed. 2016).
7

Rule 55(b)(2) states that a default judgment may be entered
against a minor or incompetent person “only if represented by a
general guardian, conservator, or other like fiduciary who has
appeared.” There is no evidence that Owens or Samuel Owens is a
minor or an incompetent person.
The Court need not consider
that aspect of Rule 55(b)(2).

18

Section 1914(a) states that “[t]he clerk of each district court
shall require the parties instituting any civil action, suit or
proceeding

in

$350 . . . .”

such

court

.

.

.

to

pay

a

filing

fee

of

That fee will be added to the judgment.

Before considering interest, the total judgment against Defendants is $15,350.00.
The Government seeks “interest according to law.”
Aff. ¶ 7.)

(Zoccola

To the extent the Government Motion seeks prejudg-

ment interest,

the

Government

Motion

is

DENIED.

Under

Rule

54(c), “[a] default judgment must not differ in kind from, or
exceed in amount, what is demanded by the pleadings.”

See also

Silge v. Merz, 510 F.3d 157, 159–60 (2d Cir. 2007); Ayers v. Receivables Performance Mgmt., L.L.C., No. 2:15-CV-12082, 2016 WL
5402962, at *9 (E.D. Mich. Sept. 28, 2016) (citing Silge).
Complaint does not seek prejudgment interest.

The

(Compl. 3.)

No postjudgment interest has accrued because no judgment
has been entered.
fault

judgment

Postjudgment interest shall accrue on the deentered

in

this

Order.

Under

28

U.S.C.

§ 1961(a), “[i]nterest shall be allowed on any money judgment in
a

civil

case

recovered

in

a

district

court.”

An

award

of

postjudgment interest is mandatory under § 1961(a) and is awarded as a matter of course.

See, e.g., Caffey v. Unum Life Ins.

Co., 302 F.3d 576, 586 (6th Cir. 2002); WCM Indus., Inc. v. IPS

19

Corp., No. 2:13-CV-02019-JPM-TMP, 2016 WL 7541700, at *2 (W.D.
Tenn. May 13, 2016).
Postjudgment interest accrues at the rate determined under
§ 1961(a).

Estate of Riddle ex rel. Riddle v. S. Farm Bureau

Life Ins. Co., 421 F.3d 400, 409 (6th Cir. 2005); Mariner Health
Care, Inc. v. Sherrod, No. 09-2613, 2011 WL 2418473, at *4 (W.D.
Tenn. June 13, 2011).

Such interest is calculated from the date

of the entry of judgment, at the rate equal to the weekly average one-year constant-maturity Treasury yield –– for the calendar week preceding the date of the judgment –– as published by
the Federal Reserve’s Board of Governors.

28 U.S.C. § 1961(a).

As of the date of this Order, that rate is 1.03%.

(See Board of

Governors of the Federal Reserve System, Selected Interest Rates
(Daily)

––

H.15,

available

at

https://www.federalreserve.gov/

releases/H15/default.htm (last accessed Mar. 20, 2017).)

Inter-

est shall be computed daily to the date of payment and shall be
compounded annually.
The
Clerk

of

Government
Court

Id. § 1961(b).
Motion

transfer

asks
“to

the
the

Court
Crime

to

order

Victims

that

the

Fund”

the

$1,500.00 that Samuel Owens previously paid to secure Owens’s
Appearance Bond.

(Gov’t Mot. 1; see also Compl. 1.)

tion of the Government Motion is GRANTED.

20

This por-

V.

CONCLUSION
For

DENIED.

the

reasons

discussed

above,

the

Owens

Motion

is

The Government Motion is DENIED to the extent it seeks

prejudgment

interest,

and

is

GRANTED

in

all

other

respects.

Judgment shall be ENTERED in favor of the Government in the
amount of $15,350.00, with postjudgment interest to apply as
provided above.

Owens and Samuel Owens are ORDERED to pay the

Government the damages and costs stated in this Order.

Their

liability

joint

to

the

Government

for

that

amount

is

and several.
The Clerk of Court is ORDERED to transfer the $1,500.00
previously deposited into the Registry of the Court by Samuel
Owens to the Federal Crime Victim Assistance Fund.
So ordered this 20th day of March, 2017.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

21