Billingnetwork Patent, Inc. v. My Practice Now LLC

• Court: District Court, D. New Mexico
• Decided: April 9, 2021
• Docket: 1:20-cv-01254
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO _____________________

BILLINGNETWORK PATENT, INC.,

Plaintiff,

vs. 1:20-cv-01254-KWR-SCY

MY PRACTICE NOW, LLC.,

Defendant.

ORDER DENYING WITHOUT PREJUDICE MOTION FOR DEFAULT JUDGMENT

THIS MATTER comes before the Court upon Plaintiff’s Motion for Default Judgment (Doc. 4). Plaintiff seeks default judgment against Defendant My Practice Now, LLC, for several patent infringement claims. Rule 55 mandates a two-step process for a default judgment. First, a party must obtain a Clerk’s entry of default. Second, the party must request a default judgment. Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970) (citing Fed. R. Civ. P. 55(a) & (b)). Once a defendant is found to be in default, a court must “t[ake] as true all factual allegations in the complaint, except those pertaining to the amount of damages.” Archer v. Eiland, 64 F. App’x 676, 679 (10th Cir. 2003). However, even after entry of default, the Court must decide “whether the unchallenged facts create a legitimate basis for the entry of a judgment.” See Greenwich Ins. Co. v. Daniel Law Firm, No. 07–cv–2445–LTB–MJW, 2008 WL 793606, at *1 (D. Colo. Mar. 22, 2008) (citations omitted). “[A] party is not entitled to a default judgment as of right; rather the entry of a default judgment is entrusted to the ‘sound judicial discretion’ of the court.” Id. at *2 (citation omitted), quoted in Villanueva v. Account Discovery Sys., LLC, 77 F. Supp. 3d 1058, 1066 (D. Colo. 2015). Under Fed.R.Civ.P. 55(b)(1), judgment can be entered for a “sum certain” or a “sum that can be made certain by computation” where a defendant has been defaulted for a failure to appear. KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F.3d 1, 20 (1st Cir. 2003). To be a “sum certain” there must be no doubt as to the amount that must be awarded. Franchise Holding II, LLC. v. Huntington Rests. Group, Inc., 375 F.3d 922, 928–29 (9th Cir.2004). Moreover, “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.” Hunt v. Inter–Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir.1985). A court is not required to accept the plaintiff’s legal conclusions or factual allegations when assessing damages and must ensure that there is a legal basis for the damages specified in the default judgment. Klapprott v. United States, 335 U.S. 601, 611-12 (1949). “In ruling on a motion for default judgment, the court may rely on detailed affidavits or documentary evidence to determine the appropriate sum for default judgment.” Seme v. E & H Prof'l Sec. Co., Inc., 2010 WL 1553786, at *11 (D.Colo. Mar. 19, 2010) (citing Fanning v. Permanent Solution Indus., Inc., 257 F.R.D. 4, 7 (D.D.C.2009), quoted in Mathiason v. Aquinas

Home Health Care, Inc., 187 F. Supp. 3d 1269, 1277 (D. Kan. 2016). “The calculation of damages requires the Court to look beyond the averments of the complaint. The Court is required to examine the sufficiency of all evidence with respect to damages, and, when evidence is deemed insufficient, to ascertain the appropriate level of damages through its own inquiry.” Begay v. Rangel, No. CV 05-0494 MCA/LCS, 2006 WL 8444385, at *2 (D.N.M. Mar. 10, 2006), quoting Joe Hand Promotions, Inc. v. Hernandez, No. 03 Civ. 6132(HB) et al., 2004 WL 1488110, at *2 (S.D.N.Y. June 30, 2004) (citations omitted). Here, Plaintiff did not move for a clerk’s entry of default before moving for default judgment. Therefore, pursuant to Fed. R. Civ. P. 55, the Court must deny this motion without prejudice. The Court notes that in the current motion Plaintiff went through great effort to prove that service was accomplished. In addition to service, Plaintiff must also show that judgment is appropriate as to liability. Moreover, if Plaintiff is seeking damages, Plaintiff may also attempt to prove damages through an affidavit and other evidence attached to the motion, as explained above. IT IS THEREFORE ORDERED that Plaintiff's Motion for Default Judgment (Doc. 4) is DENIED WITHOUT PREJUDICE for the reasons described above. IT IS SO ORDERED. ‘ ag UNITED STATES DISTRICT JUDGE