Stamps v. Moving Pros Inc.

• Court: District Court, D. Montana
• Decided: August 12, 2019
• Docket: 9:18-cv-00115
• Status: Unknown

Opinion

AUG 12 2019 Clerk, U.S □□□□□□□□ Court District Of Montana IN THE UNITED STATES DISTRICT COURT Missoula FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

MICHAEL STAMPS and BARBARA CV 18-115-M—-DWM STAMPS, Plaintiffs, ORDER and ENTRY OF VS. DEFAULT JUDGMENT MOVING PROS INC., CLAIMS SERVICE INTERNATIONAL, and DOES 1-10, Defendants.

Plaintiffs Michael and Barbara Stamps filed this suit on June 21, 2018, alleging claims based on the loss of or damage to their personal property during their move from California to Montana. (Doc. 1.) The Stamps allege breach of

contract under Montana law, as well as violations of the Carmack Amendment, 49 U.S.C. § 14701, et seq., and Montana’s Unfair Trade Practices Act, Mont. Code

Ann. § 33—-18-101, et seq. (/d.) Both Defendants Moving Pros Inc. and Claims

Service International appeared in the case and answered the complaint. (See Docs.

7, 9, 21, 22.) All parties also appeared before the undersigned for a preliminary

pretrial conference on January 4, 2019. (See Docs. 12-19.) Trial was set for

December 2019. (See Sched. Or., Doc. 20.) On May 2, 2019, counsel for both Moving Pros Inc. and Claims Service International sought to withdraw. (See Doc. 26.) That motion was granted, and

both defendants were given two weeks to retain new counsel or face default. (See Doc. 28.) Claims Service International noticed its new counsel on May 21, 2019.

(Doc. 29.) Moving Pros failed to retain new counsel and, on May 24, 2019, the

Stamps sought default against Moving Pros. (See Doc. 32.) The clerk entered

default on May 29, 2019. (Doc. 33.) Pursuant to the parties’ stipulation, (Doc. 34), the claims against Claims Service International were dismissed with prejudice

on July 24, 2019, (Doc. 35). On July 30, 2019, the Stamps filed their application for default judgment and attorneys’ fees. (Doc. 36.) That application indicates

that it was also sent to the last known address for Moving Pros on that same day. (See id. at 7.) Ultimately, the Stamps seek $19,530.00 in damages, $10,672.50 in

attorneys’ fees, and $1,008.16 in costs. (McDonnell Aff, Doc. 36-1.) Because Moving Pros has “appeared” in this action, (see Docs. 7, 17, 21), only the Court can enter default judgment despite the “sum certain” sought. Compare Fed. R. Civ. P. 55(b)(1) (applying if “a defendant [] has been defaulted for not appearing”) with Fed. R. Civ. P. 55(b)(2) (applying “[i]n all other cases”);

see also Franchise Holding I, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 927-28 (9th Cir. 2004). Accordingly, the Court FINDS:

(1) This Court has original subject matter jurisdiction over the Stamps’ Carmack Amendment claim, 28 U.S.C. § 1331, and supplemental jurisdiction over

the Stamps’ state law claims, 28 U.S.C. § 1367(a). This Court has personal jurisdiction over Moving Pros because it transacts business in Montana and entered

into a contract to provide services in Montana. See Fed. R. Civ. P. 4(k)(1); Mont.

R. Civ. P. 4(b)(1)(A), (E). Moving Pros has also waived any challenge to personal jurisdiction by appearing without challenging it. See Fed. R. Civ. P. 12(b)(2). (2) Moving Pros’ default was entered on May 29, 2019. (Doc. 33.) (3) The Stamps’ Complaint pleads allegations under the Carmack Amendment and Montana law that plausibly suggest that they are entitled to a default remedy. (See Doc. 1.) (4) The application for default was served on the last known address for Moving Pros on July 30, 2019. (See Doc. 36 at 7.) (5) Despite continued notice, Moving Pros failed to comply with this Court’s order, (see Doc. 28), and has not been active in the case since February 2019. Accordingly, IT IS ORDERED:

(1) The Stamps’ application for default judgment (Doc. 36) is GRANTED. (2) Defendant Moving Pros Inc.’s Answer and Amended Answer, (Docs. 7, 21), are STRICKEN. The allegations against Moving Pros pled in the Complaint, (Doc. 1), are DEEMED ADMITTED. (3) Default Judgment is entered in favor of the Stamps and against Moving Pros in the amount of $19,530.00. See Fed. R. Civ. P. 55(b)(2); (Doc. 36). Costs are awarded in the amount of $1,008.16. (See Doc. 36-1.) (4) Pursuant to the affidavit filed by the plaintiffs’ counsel, (see Doc. 36- 1), reasonable attorneys’ fees are awarded in the amount of $10,672.50. See 49 U.S.C. § 14704(e). (5) The Clerk of Court is directed to enter judgment in a separate document consistent with this Order and Entry of Default Judgment. Fed. R. Civ. P. 58(a), (b)(2)(B). DATED this □□ of August, 2019. [ (Oat Donald W. Molloy, District Judge United States District Court