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IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DECKER CONSTRUCTION CO., 

 Plaintiff, 

 -vsWESEX CORPORATION, et al., 

 Defendants. 

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Case No. 2:18-cv-00727 

JUDGE ALGENON L. MARBLEY 

MAGISTRATE JUDGE ELIZABETH 

P. DEVERS 

MOTION FOR DEFAULT JUDGMENT 

AS AGAINST WESEX CORPORATION 

Plaintiff Decker Construction Company (“Decker”) moves this Court for a judgment by 

default against Defendant Wesex Corporation (“Wesex”). Decker filed its Complaint against 

Decker in the Licking County Court of Common Pleas on June 23, 2018. On July 25, 2018, 

Wesex, in conjunction with Co-Defendant CCL Label, Inc., removed the case to this Court. 

Wesex did not file an Answer or other responsive pleading, and the Clerk of Court 

entered a default on August 20, 2018. Wesex has taken no action in this proceeding since default 

was entered. 

Wherefore, Plaintiff moves that this Court enter a judgment that Wesex owes Plaintiff the 

amount of $143,384.00, plus interest and attorney’s fees pursuant to Ohio’s Prompt Pay Act. 

This Motion is supported by the attached Memorandum in Support, the Affidavit of Carl W. 

Scheiderer in support of this Motion (attached as Exhibit A), and a Proposed Entry (attached as 

Exhibit B). 

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Respectfully submitted, 

/s/ Daniel O. Culicover 

Daniel O. Culicover (0092575) 

Patrick A. Devine (0022919) 

ICE MILLER LLP

250 West Street 

Columbus, OH 43215 

Phone: (614) 462-2700 

Fax: (614) 462-5135 

E-mail: patrick.devine@icemiller.com

E-mail: daniel.culicover@icemiller.com 

Attorneys for Plaintiff 

Decker Construction Co. 

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MEMORANDUM IN SUPPORT 

I. FACTS 

This is a breach of contract action, and an action under Ohio’s Prompt Pay Act. Plaintiff 

Decker Construction Company (“Decker”) entered into a subcontract with Defendant Wesex 

Corporation on March 31, 2017 (the “Subcontract”). [Compl. ¶ 5.] Decker provided Wesex 

with materials and labor under the Subcontract. [Id. ¶ 6.] In total, Decker provided Wesex with 

$143,384.00 in materials and labor. [Id. ¶ 14.] Wesex has not paid Decker for any of portion of 

the goods or services Decker supplied. [Id.] CCL Label, who owns the project, alleges it paid

Wesex for the materials and work. 

II. PROCEDURAL BACKGROUND 

On June 23, 2018, Decker filed a Complaint against Wesex in the Licking County Court 

of Common Pleas. The Complaint sought damages of $143,384.00 against Wesex pursuant to 

Wesex’s breach of contract, and/or violation of Ohio’s Prompt Pay Act, plus reasonable costs 

and fees. 

Wesex was served with a summons and a copy of Plaintiff’s Complaint on June 26, 2018. 

Wesex, along with co-Defendant CCL Label Inc. (“CCL”), removed the case to this Court on 

July 25, 2018. 

The time within which Wesex could plead in or otherwise defend this removed action as 

specified in Federal Rule of Civil Procedure 81(c)(2) has expired. In particular, more than 21 

days have elapsed since the date on which Wesex was served with a copy of the Complaint and a 

copy of the summons. And more than seven days have elapsed since Wesex and CCL filed their 

notice of removal. 

Wesex has failed to answer or otherwise defend as to Decker’s Complaint, and has failed 

to serve a copy of any answer or other defense that it might have upon the attorneys of record for 

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Plaintiff. Accordingly, on August 20, 2018, the Clerk of Courts issued an Entry of Default as to 

Wesex. [Doc. 14.] 

III. LAW AND ANALYSIS 

Default and default judgment are governed by Federal Rule of Civil Procedure 55. To 

obtain a default judgment, a party must first be subject to an entry of default by the Clerk of 

Courts. See Fed. R. Civ. P. 55(a). After the entry of default, the party seeking judgment must 

file a motion for default judgment with the Court to determine a specific amount of damages. 

See Fed. R. Civ. P. 55(b)(2). Default judgment is appropriate at this time because the Clerk of 

Courts issued an Entry of Default as to Wesex on August 20, 2018. [Doc. 14.] 

After the clerk enters of default pursuant to Rule 55(a) and the party’s application for 

default under Rule 55(b), “the defendants are considered to have admitted all of the well-pleaded 

allegations in the complaint.” J & J Sports Productions, Inc. v. Smith, S.D. Ohio No. 2:13-CV915, 2014 WL 558782, *1 (Feb. 13, 2014). The entry of default does not take the complaint’s 

damages allegations as true; thus, the plaintiff must prove the amount of damages. Id. (citing 

Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995)). However, the Court does not 

need to hold an evidentiary hearing if “damages are contained in documentary evidence or 

detailed affidavits and can be ascertained on the record before the court.” Id. 

As set forth in the Affidavit of Carl W. Scheiderer, Wesex owes Decker $143,384.00 for 

goods and services rendered to Wesex, which Wesex did not pay for. [See Scheiderer Aff., 

Exhibit A ¶ 3.] As listed in the below table, Decker submitted five Applications and 

Certifications for Payment to Wesex. [Ex. A ¶ 3.] 

 

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Application for Payment Number Invoice No. Date Amount 

Application No. 1 84574 6/25/17 $99,810.00

Application No. 2 84740 7/17/17 $15,811.20

Application No. 3 86122 11/17/17 $1,554.30

Application No. 4 86688 12/31/17 $11,870.10

Application No. 5 86689 12/31/17 $14,338.40

Total $143,384.00

As of this date, Wesex has not paid Decker for any of Decker’s services. [Ex. A ¶ 4.] 

IV. CONCLUSION 

For these reasons, Decker respectfully requests this Court to issue default judgment 

against Wesex in the amount of $143,384.00, plus interest, and attorney’s fees under Ohio’s 

Prompt Pay Act. 

Respectfully submitted, 

/s/ Daniel O. Culicover 

Daniel O. Culicover (0092575) 

Patrick A. Devine (0022919) 

ICE MILLER LLP

250 West Street 

Columbus, OH 43215 

Phone: (614) 462-2700 

Fax: (614) 462-5135 

E-mail: patrick.devine@icemiller.com

E-mail: daniel.culicover@icemiller.com 

Attorneys for Plaintiff 

Decker Construction Co. 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 22, 2018, I electronically filed the foregoing with the 

Clerk of Court using the CM/ECF system, which will send notification of such filing to all 

counsel of record. 

/s/ Daniel O. Culicover 

Daniel O. Culicover, Esq. 

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