United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
ALISTAIR E. NEWBERN United States Magistrate Judge
Honorable Aleta A. Trauger:
before the Court is Plaintiff De'Mario Driver's
Motion for Default Judgment as to Defendants Michael Farrish
and Jorge Santiago. (Doc. No. 155.) For the following
reasons, the undersigned RECOMMENDS that the motion be DENIED
WITHOUT PREJUDICE to refiling after adjudication of the
claims pending against all other defendants.
Section 1983 civil rights action, Plaintiff De'Mario
Driver brings claims against Defendants Frank Fabish, Michael
Ferrish, Jorge Santiago, Earl Johnson, Quintez Burke, and
Leslie Mitchell - all correctional officers at the Lois
Deberry Special Needs Facility at the time Driver was
incarcerated there. (Doc. No. 1, 50.) Driver alleges that
Defendants, together, physically assaulted him and used a
taser gun against him in violation of his Eighth Amendment
protections and Tennessee tort law. (Doc. No. 1-1.) Driver
seeks $100, 000 in compensatory damages “jointly and
severally” from all defendants and punitive damages of
$20, 000 from each defendant. (Doc. No. 1-1.)
Clerk of Court entered default under Federal Rule of Civil
Procedure 55(a) against Defendants Farrish, Santiago, and
Mitchell on July 18, 2016, finding that each had been served
with and had failed to respond to Driver's complaint.
(Doc. No. 143.) Mitchell appeared shortly thereafter to
contest entry of default. (Doc. No. 151.) Driver did not
oppose that motion and the Court set aside entry of default
against Mitchell on October 20, 2016. (Doc. No. 166.)
Santiago and Farrish have not appeared. Driver now moves for
default judgment against them. (Doc. No. 155.)
Rule of Civil Procedure 55(b) governs entry of default
judgment where, as here, default has been entered against a
party under Rule 55(a). Default judgment may be entered by
the Clerk “[i]f the plaintiff's claim is for a sum
certain or a sum that can be made certain by
computation.” Fed.R.Civ.P. 55(b)(1). “Plaintiff
cannot satisfy the certainty requirement simply by requesting
a specific amount.” 10A Wright and Miller, Fed. Prac. &
Proc. Civ. § 2683 (4th ed.) Rather, “a claim is
not a sum certain unless there is no doubt as to the amount
to which a plaintiff is entitled as a result of the
defendant's default.” KPS & Assocs., Inc. v.
Designs By FMC, Inc., 318 F.3d 1, 19 (1st Cir. 2003).
Where a plaintiff's claim is not for a sum certain, entry
of default judgment falls to the court. Fed.R.Civ.P.
matters where default judgment is sought against some, but
not all, defendants, Rule 54(b) is also implicated. Under its
terms, “when multiple parties are involved, the court
may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.”
courts have long followed a general rule that, when default
is entered against fewer than all defendants in a
multi-defendant action in which joint liability is claimed,
default judgment should be withheld until merits
determinations are made for those defendants not in default.
See Frow v. De La Vega, 82 U.S. 552, 554 (1872)
(“If one of several defendants to a bill making a joint
charge . . . make default, his default and a formal decree
pro confesso may be entered, but no final decree on
the merits until the case is disposed of with regard to the
other defendants.”); see also Northland Ins. Co. v.
Cailu Title Corp., 204 F.R.D. 327, 330 (W.D. Mich. 2000)
(“When a default is entered against one defendant in a
multi-defendant case, the preferred practice is for the court
to withhold granting a default judgment until the trial of
the action on the merits against the remaining
defendants.”). By this practice, courts seek to avoid
the “unseemly and absurd” result of judgments
entered both for and against similarly situated co-defendants
on the same theories of liability and facts. Frow,
82 U.S. at 554; see also Nautilus Ins. Co. v. I.L.S. Gen.
Contractors, Inc., 369 F.Supp.2d 906, 908 (E.D. Mich.
2005) (finding that “potential for inconsistent
judgments” requires denying default judgment while
claims against other defendants are pending).
states that his Complaint “seeks a sum certain”
and, therefore, the Clerk may enter default judgment against
Santiago and Ferrish pursuant to Rule 55(b)(1). (Doc. No.
155.) Although Driver seeks specific dollar amounts from each
defendant, his claims are not for a “sum certain”
as contemplated by Rule 55(b)(1). Driver seeks compensatory
damages in the amount of “$100, 000 jointly and
severally against [all Defendants] for the physical and
emotional injuries sustained as a result of the
Plaintiff's beating” and an award of “$20,
000 against each defendant” in punitive damages. (Doc.
No. 1-1.) However, “[i]f the dollar amount of the
defendant's liability is a matter of estimation, such as
the . . . extent of personal injuries then it is not a
‘sum certain' and entry of default judgment for
that amount may be entered only by the Court after a factual
evaluation.” Combs v. Coal & Mineral Mgmt. Servs.,
Inc., 105 F.R.D. 472, 474 (D.D.C. 1984) (internal
citations omitted); see also 10A Wright and Miller,
Fed. Prac. & Proc. Civ. § 2683 (“Plaintiff cannot
satisfy the certainty requirement simply by requesting a
specific amount.”). Accordingly, the motion for default
judgment must be decided by the Court. Fed.R.Civ.P. 55(b)(2).
facts of this case do not compel the finding of “no
just reason for delay” required for the Court to enter
default judgment to fewer than all defendants. Fed.R.Civ.P.
54(b). To the contrary, the Court has every reason to
withhold entry of default judgment until Driver's claims
against all defendants are resolved. Driver specifically
pleads joint liability among all defendants, and the
remaining defendants are likely to rely on the same defenses
that Farrish and Santiago might have raised had default not
been entered against them. ...