United States District Court, D. Vermont
REPORT AND RECOMMENDATION (DOC. NO. 11)
M. Conroy, United States Magistrate Judge
a breach of contract action brought by Plaintiff Revision
Military Ltd. (Revision) against Gideon Services, Inc.,
(Gideon) for failure to pay $194, 512.60 for military
batteries and battery chargers supplied by Revision to
Gideon. (Doc. 1.) Despite proper service, Gideon failed to
plead or otherwise answer the allegations of the Complaint
and the Clerk entered a default under Fed.R.Civ.P. 55(a).
(Doc. 10.) Presently before the Court is Revision's
Motion for Default Judgment by the Court under Fed.R.Civ.P.
55(b)(2). (Doc. 11.) Revision seeks a judgment for damages in
the amount alleged in the Complaint, together with its costs
and interest. (Id.)
12, 2017, Revision filed the Complaint initiating this action
in which it is alleged that Defendant has breached a contract
by failing to pay for military batteries and battery chargers
supplied to it by Plaintiff. (Doc. 1.) On August 1, 2017, an
executed Summons was filed as evidence of service of process
on the registered agent of Gideon. (Doc. 3.) No Answer or
other responsive pleading has been filed on behalf of Gideon.
A Clerk's Entry of Default was filed on October 4, 2017.
(Doc. 10.) Plaintiff filed the pending Motion for Default
Judgment pursuant to Fed.R.Civ.P. 55(b)(2) on October 4,
2017. (Doc. 11.)
the fact that Plaintiff has consented to jurisdiction by the
Magistrate Judge over this case pursuant to 28 U.S.C. §
636(c), (Doc. 2), the decision on Plaintiff's Motion for
Default must be in the form of a Report and Recommendation
because Gideon, the defaulting party, has not consented to
jurisdiction by the Magistrate Judge. See, e.g.,
Jack Tyler Eng'g Co. v. Colfax Corp., 2011 WL
384614 at *4 (W.D. Tenn. Feb. 3, 2011) (magistrate judge
lacked statutory authority to enter default judgment absent
consent of defaulting party); Victoria's Secret
Stores v. Artco Equip. Co., 194 F.Supp.2d 704, 715 (S.D.
Ohio 2002) (default judgment motion is dispositive and
magistrate judge may only issue recommended dispositions with
respect to such a motion); see generally N.Y. Chinese TV
Programs, Inc. v. U.E. Enters., Inc., 996 F.2d 21, 25
(2d Cir. 1993) (absent consent, magistrate judge not
authorized to issue final order).
well settled that a defendant who fails to answer or
otherwise oppose a complaint is “deemed to have
admitted all well-pleaded allegations in the complaint
pertaining to liability.” Finkel v.
Romanowicz, 577 F.3d 79, 81 n.1 (2d Cir. 2009) (citing
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., 973 F.2d 155, 158 (2d Cir. 1992)). Accordingly,
the following facts, which are drawn from Revision's
Complaint, and the documentary evidence attached thereto,
see Fed. R. Civ. P. 10(c), are established for the
purpose of determining Gideon's liability.
is a Delaware corporation with its principal place of
business in Essex, Vermont. (Doc. 1 at 1, ¶ 2.) It is in
the business of providing protective equipment to the United
States military and for military situations worldwide.
(Id.) Gideon is an Alabama corporation with its
principal place of business in Huntsville, Alabama.
(Id. ¶ 3.) Gideon is in the business of
providing technical supplies and services to government
email communications dated July 11, 2016, and again on July
20, 2016, Gideon requested that Revision supply proposed unit
pricing on 294 batteries and 147 charging devices.
(Id. at 2, ¶¶ 6-8.) Revision provided the
requested pricing and on August 8, 2016, Gideon ordered the
batteries and chargers from Revision. (Id.
¶¶ 8-9.) The batteries and chargers were shipped
and delivered in two shipments arriving on December 12, 2016,
and January 4, 2017. (Id. ¶ 10.) Gideon failed
to pay for the products within 30 days as specified in the
purchase order. (Id. ¶¶10-11.) On February
16, 2017, Revision's Chief Financial Officer, Michael
Garvey, and Gideon's Chief Executive Officer, Anna
Thornley, spoke on the phone. (Id. ¶ 12.)
Thornley agreed that Gideon would pay the sum of $25, 000 per
week until the debt was satisfied. (Id. ¶¶
12, 13.) Thornley later sent Garvey an email confirming that
understanding. (Id. ¶ 13; Doc. 1-3.) Gideon has
failed to pay any of the $194, 512.60 debt. (Id. at
3, ¶¶ 15, 16.)
Subject-Matter and Personal Jurisdiction
any motion, a court must first assure itself that it has
subject-matter jurisdiction over the controversy. Here, it is
clear that the Court has subject-matter jurisdiction under 28
U.S.C. § 1332(a) by reason of the diversity of
citizenship between the parties and an amount in controversy
exceeding $75, 000.
a court grants a motion for default judgment, it may
first assure itself that it has personal jurisdiction over
the defendant.” Sinoying Logistics Pte Ltd. v. Yi
Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010)
(emphasis added). The Second Circuit has left open, however,
the issue of “whether a district court must
investigate its personal jurisdiction over [a] defendant
before entering a default judgment.” Id. at
213 n.7; but see Credit Lyonnais Sec. (USA), Inc. v.
Alcantara, 183 F.3d 151, 154 (2d Cir. 1999) (vacating
default judgment and instructing district court to determine
whether the plaintiffs could “prove the jurisdictional
facts by a preponderance of the evidence”).
also clear that the Court has specific personal jurisdiction
over Gideon by virtue of Gideon doing business in Vermont.
Personal jurisdiction over a defendant may be general or
specific. In re Terrorist ...