Null v. Cdag International ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ACCURATE TREE AND LANDSCAPING
SERVICES,
Plaintiff,
v. Civil Action No. 18-1012 (JEB)
CDAG INTERNATIONAL,
Defendant.
MEMORANDUM OPINION
Plaintiff Accurate Tree and Landscaping Services sued CDAG International for breach of
contract. As Defendant has never appeared despite proper service, the Clerk entered a default
against it. Accurate now moves for default judgment. Although it has taken Plaintiff some time
to file sufficient pleadings, the Court will grant the Motion here.
I. Legal Standard
The determination of whether a default judgment is appropriate is “committed to the
sound discretion of the trial court.” Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980)
(citations omitted). A default judgment may enter where a defendant is “totally unresponsive,”
and its default is plainly willful, as reflected by its failure to respond to the summons and
complaint, the entry of default, or the motion for default judgment. See Gutierrez v. Berg
Contracting Inc., No. 99-3044, 2000 WL 331721, at *1 (D.D.C. March 20, 2000) (citing Jackson,
636 F.2d at 836). Nevertheless, “[m]odern courts are . . . reluctant to enter and enforce
judgments unwarranted by the facts,” Jackson, 636 F.2d at 835, and “a district court may still
deny an application for default judgment where the allegations of the complaint, even if true, are
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legally insufficient to make out a claim.” Gutierrez, 2000 WL 331721, at *2 (citing Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). Once a default is entered, however, the defendant
“is deemed to admit every well-pleaded allegation in the complaint.” Adkins v. Teseo, 180 F.
Supp. 2d 15, 17 (D.D.C. 2001); see Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 63 (2d
Cir. 1971), rev’d on other grounds, 409 U.S. 363 (1973); see also 10A Wright & Miller, Fed.
Prac. & Proc. Civ. § 2688.1 (4th ed.) (defaulting “defendant has no further standing to contest
the factual allegations of plaintiff’s claim for relief”). If those facts are sufficient to establish
liability, the court then “make[s] an independent determination of the sum to be awarded” based
upon evidence in the record. See Adkins, 180 F. Supp. 2d at 17.
II. Analysis
There is no doubt that Defendant has been “totally unresponsive” and willfully in default
in this case. Indeed, it has had multiple opportunities to respond given the numerous missteps by
Plaintiff. On May 1, 2018, Gary Null, the owner of Accurate, filed the first Complaint here and
served CDAG on May 9, 2018. See ECF No. 1 (Compl.); ECF No. 3 (Return of Service). After
Null amended the caption of the Complaint to make clear the name of the entity he was suing,
see ECF No. 9 & Minute Order of Aug. 10, 2018, the Clerk entered default on August 16. See
ECF No. 11. When Null moved for default judgment, however, the Court explained that he was
not the proper Plaintiff since only Accurate was a party to the contract. See Minute Order of
Sept. 25, 2018.
The Amended Complaint rectified that error. See ECF No. 15. On Accurate’s next
attempt at default judgment, the Court pointed out that no proof of service had ever been filed.
See Minute Order of Dec. 11, 2018. Plaintiff then filed such proof, see ECF No. 19, but
puzzlingly asked for relief under Fed. R. Civ. P. 60(b), which had no relevance here in the
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absence of a judgment. See Minute Order of Jan. 9, 2019. A new affidavit of default was
subsequently filed, see ECF No. 21, and entry of default once again granted by the Clerk. See
ECF No. 24. The most current Motion for Default Judgment is now pending. See ECF No. 25.
Despite this Court’s admonitions, see Minute Order of Sept. 4, 2018, the current Motion
again omits the contract and any affidavit. The Court will nonetheless liberally incorporate those
documents from a prior failed pleading, see ECF Nos. 13-1 (Affidavit of Gary Null), 13-2
(Subcontract Agreement), though it could once again deny this Motion for failure to include the
necessary documents.
Null has averred that he entered into the attached contract with Accurate for $82,500 and
then agreed on an additional $8,500 and that, despite performing the work, he was never paid.
See Null Aff. at 1. This is sufficient to prove the existence of a contract, its breach, and the
amount owed.
III. Conclusion
The Court will, accordingly, issue an Order granting the Motion and entering judgment
for $91,000.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 27, 2019
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