Home Design Services v. Alan V Gren Enterprises et al
Filing
85
MEMORANDUM DECISION AND ORDER denying 56 Motion for Entry of Default. Signed by Judge Ted Stewart on 5/22/13. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
HOME DESIGN SERVICES, INC.,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE MOTION FOR ENTRY
OF DEFAULT
v.
ALAN V. GREN ENTERPRISES, INC.;
ALAN V. GREN, individually; ANDREWS
& ASSOCIATES CUSTOM HOME
DESIGN, INC.; and, LARRY F. ANDREWS,
individually,
Case No. 2:12-CV-398 TS
Defendants.
This matter is before the Court on Defendants and Cross-Claim Plaintiffs Alan V. Gren
Enterprises, Inc. and Alan V. Gren’s (the “Gren Defendants”) Motion for Entry of Default. The
Gren Defendants seek a default judgment against Defendants Andrews & Associates Custom
Home Design, Inc. and Larry F. Andrews (the “Andrews Defendants”). A default certificate was
entered against the Andrews Defendants on February 12, 2013.
1
Under Frow v. De La Vega,1 when one of several allegedly jointly and severally liable
defendants defaults, “judgment should not be entered against that defendant until the matter has
been adjudicated with regard to all defendants, or all defendants have defaulted.”2
As explained in Frow:
The defaulting defendant has merely lost his standing in court. He will not be
entitled to service of notices in the cause, nor to appear in it in any way. He can
adduce no evidence, he cannot be heard at the final hearing. But if the suit should
be decided against the complainant on the merits, the bill will be dismissed as to
all the defendants alike–the defaulter as well as the others. If it be decided in the
complainant’s favor, he will then be entitled to a final decree against all. But a
final decree on the merits against the defaulting defendant alone, pending the
continuance of the cause, would be incongruous and illegal.3
Admittedly, this case presents a different factual scenario than that described in Frow.
Here, a co-defendant and cross-claimant is seeking default judgment against a defaulting crossclaim defendant. In effect, the Gren Defendants allege that the Andrews Defendants should be
held liable to them for any amounts they are found to owe the Plaintiff Home Design Services,
Inc. (“Home Design”), plus attorneys fees and costs expended in the course of their defense.
1
15 Wall. 552, 82 U.S. 552 (1872).
2
10A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2690 (3d
ed. 2005) (citing Frow, 82 U.S. at 552); see also Hunt v. Inter-Glove Energy, Inc., 770 F.2d 145,
147 (10th Cir. 1985) (holding that where complaint’s claims were for fraud and securities
violations, the plaintiff having chosen to initiate a single claim involving joint liability, “may not
split its claim and proceed to damages against the defaulters and then proceed to a separate
damages award against the answering defendants”) (quoting In re Uranium Antitrust Litig., 617
F.2d 1248, 1256–58 (7th Cir. 1980)).
3
Frow, 82 U.S. at 554; see also Haines v. Fisher, 82 F.3d 1503, 1511 (10th Cir. 1996)
(holding that entry of judgment of zero against defaulting defendant was proper where jury found
that no damages were proven).
2
A default judgment may be entered in some circumstances against severally liable
defendants.4 But the Frow analysis has been extended to cases where defendants have closely
related defenses.5 In this case, the Gren Defendants and the Andrews Defendants share many of
the same defenses to Home Design’s claims. Thus, should Home Design prove unable to prevail
against the Gren Defendants, it follows that it would be unable to prove its case against the
Andrews Defendants. Therefore, the Court finds Frow applicable and will deny the Gren
Defendants’ Motion without prejudice to its later refiling once the case is determined on the
merits as to all the defendants.
The Court would note that this conclusion is further supported by the fact that the Gren
Defendants have come forward with no evidence establishing the amount of damages they should
be awarded. This is understandable, given the difficulty in calculating damages where the Gren
Defendants themselves deny the allegations of Home Design’s Amended Complaint.6 If it is
determined that Defendants do not owe Home Design any damages, the Gren Defendants may
find it difficult to prove any damages against the Andrews Defendants.
4
See Farzetta v. Turner & Newall, Ltd., 797 F.2d 151, 154–55 (3d Cir. 1986); Carter v.
D.C., 795 F.2d 116, 137–38 (D.C. Cir. 1986).
5
See In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001) (holding “it would be
incongruous and unfair to allow the Trustee to prevail against Defaulting Defendants on a legal
theory rejected by the bankruptcy court with regard to the Answering Defendants in the same
action”); Gulf Coast Fans, Inc. v. Midwest Elecs. Imps. Inc., 740 F.2d 1499, 1512 (11th Cir.
1984) (applying Frow and vacating default judgment against defaulting defendant even though
defendants not jointly liable because jury found contract was not breached).
6
See Docket No. 23.
3
It is therefore
ORDERED that the Gren Defendants’ Motion for Default (Docket No. 56) is DENIED
WITHOUT PREJUDICE.
DATED May 22, 2013.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
4
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