Harrington v. White et al

Filing 17

ORDER Granting in Part and Denying in Part Plaintiff's Motion for Default Judgment. Signed by Judge Samuel H. Mays, Jr. on August 30, 2024. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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KENITHA L. FERGUSON
HARRINGTON,
Plaintiff,
v.
DEMARIO D. WHITE and J.S.
MANAGEMENT, INC.,
Defendants.

No. 23-cv-02790-SHM-cgc

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT
Before

the

Court

is

Plaintiff

Kenitha

L.

Ferguson

Harrington’s May 6, 2024 Motion for Default Judgment (“Motion”).
(ECF No. 15.)

For the following reasons, the Motion is DENIED as

to Defendant J.S. Management, Inc. and GRANTED as to Defendant
Demario D. White.
DENIED.

Plaintiff’s claim for punitive damages is

Plaintiff is directed to provide the Court with a sworn

affidavit supporting the damages she seeks.
I.

Background

Proceeding

pro

se,

Plaintiff

filed

a

complaint

Defendants on December 18, 2023, alleging the following.
1.)

against
(ECF No.

Defendant White (a.k.a. “Moneybagg Yo”) is a rapper managed

by Defendant J.S. Management.

(Id.)

and Defendant White entered

into

On June 16, 2023, Plaintiff
a written contract.

(Id.)

Defendant White agreed to perform two or three of his songs in the
VIP section of Truth Lounge1 in Columbus, Ohio, on August 24, 2023,
at midnight.

(Id. at 4.)

The night of the scheduled performance

Defendant was pulled over by the local police for “suspicious
activity,” and did not arrive at Truth Lounge until after the club
was scheduled to close at two in the morning.

(Id.)

Plaintiff seeks $105,000 in damages.

(Id.)

She seeks

$90,000, the amount she paid Defendant White for his performance,
and $15,000 as compensation for refunding patrons who were “upset”
by the delay. (Id.) Plaintiff also seeks punitive damages because
Defendants’ actions were “beyond negligent.”

(Id.)

As Exhibit 1, Plaintiff attaches the contract. (ECF No. 1-1.)
As

Exhibit

2,

Plaintiff

attaches

a

police

report

detailing

Defendant White’s encounter with the City of Reynoldsburg Police
in the early morning of August 25, 2023.

(ECF No. 1-2.)

As

Exhibit 3, Plaintiff attaches a screenshot of a social media
advertisement for Defendant White’s performance at Truth Lounge.
(ECF No. 1-3.) As Exhibits 4 and 5, Plaintiff attaches screenshots
of social media posts about Defendant White’s failure to perform
as scheduled.

(ECF Nos. 1-4, 1-5.)

Plaintiff submits proof of service on Defendant White on
February 21, 2024 and proof of service on Defendant J.S. Management

It is not clear whether Plaintiff is the owner of Truth
Lounge or works for the Lounge in some other capacity.
1

2

on February 23, 2024.

(ECF Nos. 7, 8.)

Neither party has entered

an appearance.
On March 11, 2024, Plaintiff filed a Request for Entry of
Default against Defendant White.

(ECF No. 10.)

On March 14, 2024,

the Clerk of Court entered default against Defendant White only.
(ECF No. 11.)

On April 18, 2024, Plaintiff filed a second Motion

for Entry of Default, this time against Defendant J.S. Management.
(ECF No. 14.)
default

On April 22, 2024, the Clerk of Court entered

against

Plaintiff

now

Defendant

moves

for

J.S.

Management.

default

judgment,

punitive damages, and the costs of litigation.
II.

(ECF
seeking

No.

15.)

$105,000,

(ECF No. 16.)

Jurisdiction and Choice of Law

This Court has diversity jurisdiction under 28 U.S.C. § 1332.
Plaintiff is a citizen of Ohio.
are citizens of Tennessee.

(ECF No. 1 at 1, 3.)

Defendants

(Id. at 2-3.)

Plaintiff seeks $105,000 in damages.

(Id. at 7); (ECF No.

1-1) (contract between Plaintiff and Defendant White, listing the
performance fee as $90,000).

Because the parties are citizens of

different states and the damages alleged exceed $75,000, the Court
has diversity jurisdiction.

Rosen v. Chrysler Corp., 205 F.3d

918, 920-21 (6th Cir. 2000) (“In diversity cases, the general rule
is

that

the

amount

claimed

by

a

plaintiff

in

his

complaint

determines the amount in controversy, unless it appears to a legal

3

certainty that the claim is for less than the jurisdictional
amount.”)
State substantive law applies to state law claims brought in
federal court.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

Where there is no dispute that a certain state’s substantive law
applies, the Court will not conduct a choice of law analysis sua
sponte.

See GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085

(6th Cir. 1998).
court,

alleging

Tennessee law.

Plaintiff filed the instant suit in Tennessee
common

law

breach

(ECF No. 1 at 4.)

of

contract

claims

under

Plaintiff has attached the

contract between herself and Defendant White, in which the parties
agree that any disputes will be resolved under Tennessee law. (ECF
No. 1-1 at 3.)

The Court will apply Tennessee substantive law.

III. Standard of Review
Rule 55 creates a two-step process for obtaining a default
judgment. First, the Clerk of Court enters a default if the
defendant has failed to answer or defend the complaint. Fed. Civ.
P. 55(a). Then, the plaintiff may move the court for a default
judgment.

Fed. R. Civ. P. 55(b).

The court enters judgment in

favor of the plaintiff if, accepting the plaintiff’s allegations
as true, the complaint supports a finding of liability.2

Ford

Motor Co. v. Cross, 441 F. Supp. 2d 837, 848 (E.D. Mich. 2006).

Courts may also consider any exhibits attached to the
Complaint. United States v. Labarge, No. 8:15-CV-01330, 2016 WL
2

4

Under Tennessee law, a breach-of-contract claim has three
elements: (1) the existence of a valid and enforceable contract;
(2) a deficiency in performance amounting to a breach; and (3)
damages.

Fed. Ins. Co. v. Winters, 354 S.W.3d 287, 291 (Tenn.

2011); In re Piercy, 21 F.4th 909, 922 (6th Cir. 2021).
IV.

Analysis
A.

Plaintiff Had a Valid Contract with Defendant White

Plaintiff has established the existence of a valid contract
between herself and Defendant White, but not between herself and
Defendant J.S. Management.

Plaintiff has attached a document

labelled “Artist Engagement Contract” in which Defendant White
agrees to perform two to three songs at Truth Lounge on August 24,
2023 in exchange for $90,000.

(ECF No. 1-1.)

Defendant White signed the contract’s final page.
Plaintiff

has

breach-of-contract
White.

established
claim

the

under

first

Tennessee

Plaintiff and
(Id. at 3.)

element

law

as

to

of

a

Defendant

Winters, 354 S.W.3d at 291.

Defendant J.S. Management is not listed as one of the parties,
and no representative from the company signed the contract.
generally

id.)

The

contract

contains

a

provision

in

(See
which

Plaintiff and Defendant White “acknowledge that JSM . . . is not

3926412, at *2 (N.D.N.Y., Jul. 18, 2016); United States v. Lang,
No. 3:15-cv-994-J-32JBT, 2016 WL 11581066, at *3 (M.D. Fla. June
29, 2016.)
5

a party to this agreement” and that the “agreement is solely
between” Plaintiff and Defendant White.

(Id. at 1.)

The parties

“each agree not to sue JSM” over any dispute arising from the
contract.

(Id.)

Plaintiff’s Motion is DENIED as to Defendant

J.S. Management because Plaintiff has not shown the existence of
a valid and enforceable contract with J.S. Management.

Winters,

354 S.W.3d at 291.
B.

Defendant White Breached His Contract with
Plaintiff

Plaintiff has established that Defendant White breached their
contract.

Defendant

White

agreed

to

perform

two

to

three

“unadvertised songs” in the VIP section of Truth Lounge on August
24, 2023.

(ECF No. 1-1 at 1.)

Accepting Plaintiff’s allegations

as true, Defendant did not arrive at Truth Lounge until two in the
morning, at which point the Lounge had closed.

(ECF No. 1 at 2);

Ford Motor Co., 441 F. Supp. 2d at 848.
The contract contains a “non-performance” clause stipulating
that Defendant White’s obligation to perform would be waived in
the event of sickness, accident, or impossibility.
at 2.)

(ECF No. 1-1

As examples of events that would render performance

impossible, Defendant White lists “act[s] of God,” “war conditions
or emergencies,” and “epidemic[s],” as well as “any cause beyond
[his] control.” (Id.) The contract does not specify whether being
questioned

by

law

enforcement

would

6

waive

Defendant

White’s

obligation to perform.

(Id.)

The words “impossibility” and

“cause beyond [Defendant’s] control” must be construed using the
“plain and ordinary meaning of the written words” in the contract,
as well as “appropriate rules of construction.”

Dick Broad. Co.,

Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 659 (Tenn.
2013).
The Court interprets the contract consistently with Tennessee
common law.

“A party is not relieved of liability for his

nonperformance

of

a

contract

based

upon

the

defense

of

impossibility of performance where the impossibility is caused by
the party’s own conduct or where the impossibility is caused by
developments which the party could have prevented or avoided.”
Jenkins Subway, Inc. v. Jones, 990 S.W.2d 714, 724-25 (Court App.
Tenn. 1998); United Brake Sys., Inc. v. Am. Env’t Prot., Inc., 963
S.W.2d 749, 756 (Court App. Tenn. 1997).
According to the police report, at 12:51 a.m. police responded
to a report of suspicious activity in a Walmart parking lot.
No. 1-2 at 3.)

(ECF

Police arrived to see a Cadillac leave the lot and

make an improper turn.

(Id.)

Police initiated a traffic stop and

“immediately detected a strong odor of marijuana coming from the
car.”

(Id.)

Defendant White, who was seated in the back seat,

told police that he had smoked marijuana earlier.

(Id.)

On

searching the car, the police found “commercial style” bags of
marijuana.

(Id.)

The bags had QR codes with Defendant White’s
7

stage name, Moneybaggyo, on them.

(Id.)

the marijuana and let the parties go.

The officers confiscated

(Id.)

Defendant White could have prevented these

developments.

Proof the Court can consider establishes that he willfully smoked
marijuana in a publicly-parked car and willfully possessed bags of
marijuana labelled with his stage name.

He did so at one in the

morning, roughly an hour before the venue was supposed to close.
By engaging in this behavior, Defendant White bore the risk that
he would be stopped and questioned and miss his performance.
Defendant

White

impossibility.

cannot
Jenkins,

avail
990

himself

S.W.2d

at

of

the

724-25;

defense
United

of

Brake

Systems, 963 S.W.2d at 756.
The contract also contains a clause in which the parties agree
that any claim of breach will be settled by arbitration.
1-1 at 3.)

(ECF No.

Defendant White waived enforcement of the arbitration

clause by failing to timely enter an appearance in this action.
Gen. Star Nat. Ins. Co. v. Administratia Asigurarilor de Stat, 289
F.3d 434, 438 (6th Cir. 2002) (affirming denial of motion to compel
arbitration because party waived enforcement of the arbitration
clause by failing to file the motion until after default judgment
had been entered).

Plaintiff has established the second element

of a breach-of-contract claim under Tennessee law as to Defendant
White.

8

C.

Plaintiff’s Claim for Punitive Damages is Denied

Plaintiff seeks punitive damages because Defendant’s actions
were “beyond negligent.”

(ECF No. 1 at 4.)

Although punitive

damages may be awarded as part of a default judgment, Plaintiff
has not shown entitlement to punitive damages here.

Scrivo v.

Kendrick-Hall, No. 2:18-cv-13702, 2020 WL 6335991, at *4 (E.D.
Mich. Oct. 29, 2020).
“To prevail on a claim for punitive damages, a plaintiff must
show, by clear and convincing evidence, that a defendant acted
intentionally, fraudulently, maliciously, or recklessly.”

Sanford

v. Waugh & Co., Inc., 328 S.W.3d 836, 848 (Tenn. 2010).

Because

punitive damages “are intended to punish a defendant, to deter him
from committing acts of a similar nature, and to make a public
example of him,” they are only available in cases involving “the
most egregious of wrongs.”

Id.

at 849 (internal citations,

quotation marks omitted); see e.g., McLemore ex rel. McLemore v.
Elizabethton Med. Invs., Ltd. P’ship, 389 S.W.3d 764, 771-72 (Tenn.
Ct. App. 2012) (upholding award of punitive damages where medical
malpractice at a nursing home led to a patient’s death); Hatfield
v.

Allenbrooke

Nursing

and

Rehab.

Ctr.,

LLC,

No.

W2017-00957-COA-R3-CV, 2018 WL 3740565, at *52-53 (Ct. App. Tenn.
Aug. 6, 2018) (upholding punitive damages award where nursing home
patients experienced “outrageous lack of care”); Scutt v. McLean,
App. No. 86-193-II, 1987 WL 12047, at *2 (Ct. App. Tenn. June 10,
9

1987)

(upholding

a

punitive

damages

award

where

defendant

exhibited “willful and reckless disregard” for public safety by
driving while intoxicated).

“As a general matter,” punitive

damages are not available for breach-of-contract claims.

Rogers

v. Louisville Land Co., 367 S.W.3d 196, 211 n.14 (Tenn. 2012);
Riad v. Erie Ins. Exch., 436 S.W.3d 256, 276 (2013); Dog House
Invs., LLC v. Teal Prop., Inc., 448 S.W.3D 905, 916 (Ct. App. Tenn.
2014).
By using illegal drugs in a public place when he was late for
his scheduled performance, Defendant knowingly ignored the risk
that

he

would

be

detained

by

law

enforcement

and

miss

the

performance entirely. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d
178, 206-07 (Court App. Tenn. 2018) (punitive damages warranted
when defendants were “aware of, but consciously disregarded” a
“substantial and unjustifiable” risk).

Defendant has shown no

acceptance of responsibility, even failing to enter an appearance
in the instant action.
However,

punitive

damages

are

awarded

only

in

the

most

egregious contract cases. This case is not like cases where courts
have

granted

punitive

damages.

endanger public health or safety.

Defendant’s

actions

did

not

Cf. Goff v. Elmo Greer & Sons

Const. Co., Inc., 297 S.W.3d 175, 188 (2009) (upholding award of
punitive

damages

when

defendant

buried

waste

on

plaintiff’s

property in violation of state environmental regulations).
10

He did

not engage in repeated dishonesty or deceit.
(opining

that

defendant

repeatedly

lied

to

Id. at 188-93
plaintiff

about

cleaning up the waste); Dog House Invs., LLC, 448 S.W.3d at 916
(upholding

award

of

punitive

damages

against

landlord

who

fraudulently withheld insurance payments from lessor, a small
business on the point of bankruptcy); Korshoff v. Wesley Fin. Grp.,
LLC, No. M2022-00630-COA-R3-CV, 2024 WL 445849, 11-17 (Ct. App.
Tenn. Feb. 6, 2024) (upholding jury award of punitive damages where
employer breached contract by terminating plaintiff and covered up
conduct by inventing pretextual reason).

Plaintiff’s claim for

punitive damages is DENIED.
D.

Proof of Damages

Plaintiff seeks to recover $90,000 for the fee she paid
Defendant for his performance; $15,000 for the cost of reimbursing
disappointed

patrons;

litigation.

(ECF No. 1 at 4.)

Plaintiff’s

complaint

and

are

reimbursement

for

the

costs

of

Although the allegations in

accepted

as

true

for

purposes

of

determining Defendants’ liability, facts about damages are not
taken as true.

Ford Motor Co., 441 F. Supp. 2d at 848; Penn.

Higher Education Assistance Agency v. Meekins, No. 1:10-cv-1082JDB-egb, 2010 WL 4338640 (W.D. Tenn. Sept. 28, 2010).

Plaintiff

must provide independent proof of damages.
Plaintiff has attached a copy of her contract with Defendant
White, which required her to pay him $90,000 no later than two
11

days before his scheduled performance.

(ECF No. 1-1.)

She has

not provided proof of payment or proof of the amount she reimbursed
customers for the price of their tickets.

Cf. Penn. Higher Educ.

Assistance Agency, 2010 WL 4338640 at *1 (finding that no hearing
was necessary because damages were a sum certain agreed upon by
contract).

She has provided no proof of the costs of litigation.

Plaintiff is directed to provide a sworn affidavit setting forth
facts that support the damages she seeks.
V.

Conclusion

Plaintiff’s Motion for Default Judgment is DENIED as to
Defendant

J.S.

Management,

Demarius D. White.
DENIED.

Inc.

and

GRANTED

as

to

Defendant

Plaintiff’s claim for punitive damages is

Plaintiff is DIRECTED to provide a

sworn

affidavit

supporting the damages she seeks within twenty-eight (28) days of
the filing of this Order.
SO ORDERED this 30th day of August, 2024.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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