BMO Harris Bank N.A. v. RMZ Trucking LLC et al
MEMORANDUM OPINION ORDER: The Court concludes that BMO's Motion for Default Judgment, Doc. 8 , should be, and hereby is, GRANTED. BMO is entitled to the following relief: 1. $88,369.44 from Defendant Oncu under the first and second agreements; 2. $44,358.50 from Defendants Oncu and RMZ Trucking jointly under the third agreement; 3. Post-judgment interest at a rate of 1.79%; 4. Costs of court. (Ordered by Judge Jane J. Boyle on 1/30/2018) (sss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
BMO HARRIS BANK N.A.,
RMZ TRUCKING LLC ET AL.,
CIVIL ACTION NO. 3:17-CV-2316-B
MEMORANDUM OPINION ORDER
Before the Court is Plaintiff BMO Harris Bank N.A.’s (BMO) Motion for Default
Judgment. Doc. 8. For the reasons that follow, the Motion is GRANTED.
BMO originally filed this lawsuit against Defendants RMZ Trucking LLC and Remzi Oncu
(Defendants) on August 31, 2017. Doc. 1, Compl. BMO alleges that it entered into three agreements
with Defendants and that Defendants breached those agreements by failing to make certain
payments. See generally id. Specifically, BMO alleges that Defendant Oncu breached all three
agreements and Defendant RMZ Trucking breached only the third. Id., ¶¶ 28–37. Defendants were
served with the summons and complaint on September 21, 2017. Doc. 5, Aff. of Service. Despite
having been served, Defendants neither submitted an answer nor otherwise made an appearance in
Accordingly, BMO requested an entry of default as to Defendants on October 19, 2017, Doc.
6, which the Clerk of Court entered the same day. Doc. 7. That same day, BMO filed the present
Motion for Default Judgment against Defendants to recover the amount due under the agreements,
as well as pre- and post-judgment interest and attorney’s fees and costs. Doc. 8, Mot. for Default J.,
6. To date, Defendants have not made an appearance in this case.
Rule 55 of the Federal Rules of Civil Procedure authorizes the Court to enter a default
judgment against a defendant who has failed to plead or otherwise defend upon motion of the
plaintiff. Fed. R. Civ. P. 55(a)–(b). That said, “[d]efault judgments are a drastic remedy, not favored
by the Federal Rules and resorted to by courts only in extreme situations.” Sun Bank of Ocala v.
Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989). A party is not entitled to a
default judgment merely because the defendant is technically in default. Ganther v. Ingle, 75 F.3d
207, 212 (5th Cir. 1996). “Rather, a default judgment is generally committed to the discretion of the
district court.” United States v. 1998 Freightliner Vin #: 1FUYCZYB3WP886986, 548 F. Supp. 2d 381,
384 (W.D. Tex. 2008).
In determining whether a default judgment should be entered against a defendant, courts
have developed a three-part analysis. Id. First, courts consider whether the entry of default judgment
is procedurally warranted. See Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). The factors
relevant to this inquiry include:
 whether material issues of fact exist;  whether there has been substantial
prejudice;  whether the grounds for default are clearly established;  whether the
default was caused by a good faith mistake or excusable neglect;  the harshness of
a default judgment; and  whether the court would think itself obliged to set aside
the default on the defendant’s motion.
Second, courts assess the substantive merits of the plaintiff’s claims and determine whether
there is a sufficient basis in the pleadings for the judgment. See Nishimatsu Constr. Co., Ltd. v. Hous.
Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (noting that “default is not treated as an absolute
confession by the defendant of his liability and of the plaintiff's right to recover”). In doing so, courts
are to assume that due to its default, the defendant admits all well-pleaded facts in the plaintiff's
complaint. Id. But the “defendant is not held to admit facts that are not-well pleaded or to admit
conclusions of law.” Id.
Third, courts determine what form of relief, if any, the plaintiff should receive. See 1998
Freightliner Vin #: 1FUYCZYB3WP886986, 548 F. Supp. 2d at 384. Normally, damages are not to
be awarded without a hearing or a demonstration by detailed affidavits establishing the necessary
facts. See United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979). But if the amount of
damages can be determined with mathematical calculation by reference to the pleadings and
supporting documents, a hearing is unnecessary. James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).
Applying the three-part analysis detailed above, the Court concludes that BMO is entitled
to a default judgment on its claims against Defendants.
A. Default Judgment is Procedurally Warranted
After reviewing the BMO’s Motion in light of the six Lindsey factors, the Court determines
that default judgment is procedurally warranted. First, Defendants have not filed any responsive
pleadings. Consequently, there are no material facts in dispute. Lindsey, 161 F.3d at 893; Nishimatsu
Constr., 515 F.2d at 1206 (noting that “[t]he defendant, by his default, admits the plaintiff’s
well-pleaded allegations of fact”). Second, Defendants’ “failure to respond threatens to bring the
adversary process to a halt, effectively prejudicing Plaintiff’s interests.” Ins. Co. of the W. v. H & G
Contractors, Inc., No. C-10-390, 2011 WL 4738197, at *3. Third, given that Defendants have had
several months to make an appearance in this case but have neglected to do so, the grounds for
default are clearly established. Cf. Elite v. The KNR Grp., 216 F.3d 1080 (Table), 2000 WL 729378,
at *1 (5th Cir. May 19, 2000) (per curiam) (holding default judgment to be inappropriate where
defendant sent letter to court explaining his failure to appear was due to financial privation). Fourth,
there is no evidence before the Court to indicate that Defendants’ silence is the result of a “good
faith mistake or excusable neglect.” Lindsey, 161 F.3d at 893. Fifth, BMO seeks only the relief to
which it is entitled under its three agreements with Defendants, mitigating the harshness of a default
judgment against Defendants. Finally, the Court is not aware of any facts that would give rise to
“good cause” to set aside the default if challenged by Defendants. See id. Therefore, the Court
concludes that default judgment is procedurally warranted.
B. Default Judgment is Substantively Warranted
In light of the entry of default, Defendants are deemed to have admitted the allegations set
forth in BMO’s Complaint. Nonetheless, the Court must review the pleadings to determine whether
they provide a sufficient basis for BMO’s claims for relief. Nishimatsu Constr., 515 F.2d at 1206. In
conducting this analysis, the Fifth Circuit has looked to the Rule 8 case law for guidance:
Rule 8(a)(2) requires a pleading to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” The purpose of this requirement is “to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). The factual allegations in the complaint need only
“be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Id.
(footnote and citations omitted). “[D]etailed factual allegations” are not required,
but the pleading must present “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 498 (5th Cir. 2015).
To recover on its claim for breach of contract, BMO must show that: “(1) a valid contract
between the plaintiff and the defendant, (2) performance or tender of performance by the plaintiff,
(3) breach by the defendant, and (4) damage to the plaintiff as a result of the breach.” Garofolo v.
Ocwen Loan Servicing, L.L.C., 669 F. App’x 219, 220 (5th Cir. 2016).1
Here, BMO’s filings
establish that default judgment against Defendants is substantively warranted. BMO’s complaint and
exhibits indicate that BMO entered into three agreements with Defendant Oncu and one agreement
with both Defendant Oncu and Defendant RMZ Trucking. Doc. 1, Compl. ¶¶ 5–11; Exs. A–C,
Agreements. BMO also pleads that it fulfilled its obligations under the three agreements, that
Defendants breached the three agreements by failing to make payments, and that Defendants’ breach
damaged BMO. Doc. 1, Compl. ¶¶ 11– 37.
After review, the Court concludes that these allegations are sufficient to provide Defendants
with “fair notice” of BMO’s claims. The Court further determines that Defendants are not infants,
incompetent, or entitled to relief under the Servicemembers Civil Relief Act, 50 App. U.S.C. § 501
These are the elements of a breach-of-contract claim under Texas law, which the Court
assumes applies due to BMO’s allegation that the parties “consented that any legal action . . . with respect
to the Agreements . . . shall be brought exclusively in the federal or state courts . . . in . . . Texas.” Doc. 1,
Compl., ¶ 4.
et seq. Doc. 8-A, White Aff. in Supp. of Default, ¶ 5. Accordingly, BMO is entitled to relief.
C. BMO’s Claim is for a Sum Certain
Finally, the Court observes that BMO’s claim is for a sum certain. The amount due under the
first and second agreements (the agreements Defendant Oncu entered into without RMZ Trucking)
is $88,369.44 after subtracting the money BMO received in net sale proceeds of the collateral and
adding $5690.22 of pre-judgment interest ($41.34 per diem) as set forth in the first and second
agreements. Id., ¶¶ 25–28. The amount due under the third agreement (the agreement RMZ
Trucking and Oncu both entered into) is $44,358.50 after subtracting the net sales proceeds and
adding finance charges, fees, and $1898.10 of pre-judgment interest ($21.09 per diem) as set forth
in the third agreement. Id.
All three agreements obligate the Defendants to pay reasonable attorney’s fees and costs
incurred by BMO to enforce its rights under the agreements. The Court finds that BMO has not
provided sufficient documentation regarding the attorney’s fees in this case. BMO has thirty days
from this Order to provide the court with acceptable documentation of the attorney’s fees and costs
it seeks. Chevron Intellectual Prop., L.L.C. v. Allen, No. 7:08-CV-98-O, 2009 WL 2596610, at *4
(N.D. Tex. Aug. 24, 2009) (explaining that plaintiffs seeking default judgment must “provide the
Court with the information needed to calculate reasonable attorney’s fees”).
For the aforementioned reasons, the Court concludes that BMO’s Motion for Default
Judgment, Doc. 8, should be, and hereby is, GRANTED. It is therefore ORDERED, ADJUDGED,
and DECREED that BMO is entitled to the following relief:
1. $88,369.44 from Defendant Oncu under the first and second agreements;
2. $44,358.50 from Defendants Oncu and RMZ Trucking jointly under the third agreement;
3. Post-judgment interest at a rate of 1.79%;2
4. Costs of court.3
SIGNED: January 30, 2018.
Post-judgment interest is calculated using the weekly average 1-year constant maturity
(nominal) Treasury yield, as published by the Federal Reserve System for the calendar week preceding. 28
U.S.C. § 1961. The 1-year rate for the week ending January 26, 2018(and thus effective from January 29,
2018, to February 4, 2018), is 1.79%.
See Fed. R. Civ. P. 54(d)(1); see also Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172–79
(2013) (holding the Federal Debt Collection Practices Act does not displace a district court’s discretion
to award costs under Fed. R. Civ. P. 54).
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