IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ROBERT HOLLAND )

)

Plaintiff, )

)

vs. ) No. 2:13-cv-00491

)

CERBERUS CAPITAL MANAGEMENT, )

et al., )

)

Defendants. )

ORDER

This matter is before the Court on the: (1) “Request for

Clerk’s Entry of Default Judgment,” filed by pro se Plaintiff,

Robert Holland, on June 19, 2014 (DE #37); (2) “Motion for Final

Judgment Sum Certain,” filed by pro se Plaintiff, Robert Holland,

on June 25, 2014 (DE #45); and (3) “Request for Default Judgment

Sum Certain by the Clerk of the Court,” filed by pro se Plaintiff

Robert Holland, on July 29, 2014 (DE #71). 

For the reasons set forth below, the Request for Clerk’s Entry

of Default Judgment (DE #37) is GRANTED in PART - the Clerk is

ORDERED to enter default in favor of Plaintiff and against

Defendants Bull Dog Towing and the CEO of Bull Dog Towing. The

request for default judgment embedded in that same motion (DE #37)

REMAINS UNDER ADVISEMENT, and the Court hereby ORDERS a HEARING to

determine the amount of damages, at which Plaintiff and Defendants,

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Bull Dog Towing and the CEO of Bull Dog Towing, are ORDERED to

attend, before this Court on November 4, 2014, at 1:00 p.m. 

Attendance by the other defendants in the case who have filed

motions to dismiss is optional. The Clerk is DIRECTED to mail

copies of this Order to the address where service was obtained on

Defendants, Bull Dog Towing and the CEO of Bull Dog Towing. 

The Request for Default Judgment (DE #71) against Defendant,

Paul Davis, REMAINS UNDER ADVISEMENT, and the Court hereby ORDERS

a HEARING to determine the amount of damages, at which Plaintiff

and Defendant, Paul Davis, are ORDERED to attend, before this Court

on November 4, 2014, at 1:00 p.m. Attendance by the other

defendants in the case who have filed motions to dismiss is

optional. The Clerk is DIRECTED to mail a copy of this Order to

the address where service was obtained on Paul Davis. 

The Motion for Final Judgment (DE #45) is duplicative, and is

DENIED AS MOOT.

BACKGROUND

Holland filed a “Request for Default Judgment Sum Certain by

the Clerk of the Court,” on July 29, 2014 (DE #71), requesting

default judgment against Defendant, Paul Davis. Paul Davis has not

appeared in this case. This Court ordered Holland to file a

memorandum showing why he has perfected service upon Paul Davis in

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accordance with Federal Rule of Civil Procedure Rule 4(e). He

filed a memorandum on September 26, 2014 (DE #91) showing he served

the summons in accordance with Federal Rule of Civil Procedure 4(e)

and Indiana state law.

Holland also filed a “Request for Clerk’s Entry of Default

Judgment” (DE #37) and “Motion for Final Judgment” (DE #45),

requesting the entry of default and default judgment against

Defendants Bull Dog Towing and the CEO of Bull Dog Towing. Holland

was also ordered to file a memorandum showing that he perfected

service on Bull Dog Towing and the CEO of Bull Dog Towing, and he

filed a memorandum on September 26, 2014 (DE #90) showing he

properly served them via certified mail. 

DISCUSSION

Federal Rule of Civil Procedure 55 governs the entry of

default and default judgment. When a defendant fails to answer a

complaint or otherwise defend himself, the clerk can make an entry

of default. Fed. R. Civ. P. 55(a); see also Jackson v. Beech, 636

F.2d 831, 835 (D.C. Cir. 1980) ("Once a defendant fails to file a

responsive answer, he is in default, and an entry of default may be

made by either the clerk or the judge.").

Entry of default must precede an entry of default judgment. 

See, e.g., Hirsch v. Innovation Int'l, No. 91 Civ. 4130, 1992 WL

316143, at *1 (S.D.N.Y. 1992). Although Rule 55(a) refers to the

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entry of default by the clerk, "it is well-established that a

default also may be entered by the court." Breuer Elec. Mfg. Co.

v. Toronado Sys. of Am., Inc., 687 F.2d 182, 185 (7th Cir. 1982);

Jackson, 636 F.2d at 835. 

In the instant case, the Clerk has not made an entry of

default as to Bull Dog Towing and the CEO of Bull Dog Towing.1

When deciding a motion for entry of default judgment, if there is

no entry of default by the clerk, courts can treat such motions as

requests for both: (1) an order to the clerk to enter the default;

and (2) entry of default judgment. Hirsch, 1992 WL 316143, at *1. 

Therefore, the Court will consider Hollands's motion as to Bull Dog

Towing and the CEO of Bull Dog Towing as a petition for entry of

default and a default judgment.

Plaintiff filed suit against multiple Defendants, including

Paul Davis, Bull Dog Towing, and the CEO of Bull Dog Towing, on

December 30, 2013 (DE #1). Service was perfected on these

Defendants, and proofs of service were filed with the Court on June

4, 2014 (DE ##9, 10, 16). No one has appeared on behalf of Paul

Davis, Bull Dog Towing, or the CEO of Bull Dog Towing, and no one

has responded to the complaint on their behalf. 

Federal Rule of Civil Procedure 55 governs the entry of

default and default judgments. When a defendant fails to answer a

1

The Clerk has, however, made an entry of default as to

Paul Davis. (DE #60.)

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complaint or otherwise defend himself, the Clerk can make an entry

of default. Fed. R. Civ. P. 55(a); see also Jackson v. Beech, 636

F.2d 831, 835 (D.C. Cir. 1980) ("Once a defendant fails to file a

responsive answer, he is in default, and an entry of default may be

made by either the clerk or the judge."). Entry of default must

precede an entry of default judgment. See, e.g., Hircsh v.

Innovation Int'l, Inc., No. 91 Civ. 4130, 1992 WL 316143, at *1

(S.D.N.Y. Oct. 19, 1992). Here, the Clerk entered default as to

Paul Davis on July 17, 2014 (DE #60). An entry of default is also

proper as to Defendants, Bull Dog Towing and the CEO of Bull Dog

Towing.

In a motion for default judgment, the well-pleaded allegations

of a complaint relating to the amount of damages suffered must be

proved. Yang v. Hardin, 37 F.3d 282, 286 (7th Cir. 1994) (citing

United States v. DiMucci, 879 F.2d 1488, 1497 (7th Cir. 1988)). 

Before the entry of default judgment, Federal Rule of Civil

Procedure 55(b)(2) provides that the district court "may conduct

hearings or make referrals" when it needs to conduct an accounting,

or determine the amount of damages. Fed. R. Civ. P. 55(b)(2). 

Such proceedings are required unless "the amount claimed is

liquidated or capable of ascertainment from definite figures

contained in the documentary evidence or in detailed affidavits." 

Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d

1319, 1323 (7th Cir. 1983) (citations omitted). 

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In this case, Plaintiff has requested $41,833,455 in damages. 

(DE ## 71, 32). He requested $41,750,000 in punitive damages. (DE

#32.) Because it appears that the alleged damages are not easily

ascertained or submitted to the Court in the form of affidavits or

other written documentary evidence, the Court will hold a hearing

on damages. The parties are ordered to attend the hearing, present

any evidence on their behalf, and come prepared with legal

arguments supporting the availability of punitive damages. 

DATED: October 8, 2014 /s/ RUDY LOZANO, Judge

United States District Court

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