United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
WILLIAM CONNELLY, Magistrate Judge.
This Report and Recommendations addresses Plaintiff Choice Hotels International, Inc. ("Choice Hotels")'s Request for Judgment by Default. ECF No. 8. Defendants Vishal, Inc., Vishal Amin and Urmila Amin have not filed a response and the deadline for a response elapsed on May 15, 2014. See Loc. R. 105.2.a. Having reviewed the filings, no hearing is deemed necessary. See Loc. R. 105.6. For the reasons stated herein, the undersigned recommends that, following the time to object to this Report and Recommendations, Choice Hotels' Request for Judgment by Default be GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Choice Hotels is a Delaware corporation with its principal place of business in Rockville, Maryland. Defendant Vishal, Inc. ("Vishal") is a Virginia corporation. Defendant Vishal Amin is an individual residing in Newport News, Virginia. Defendant Urmila Amin is an individual residing in Newport News, Virginia. See ECF No. 1 at 1.
The Defendants entered into a franchise agreement with Choice Hotels, on or about June 29, 2007, and subsequently breached the agreement. In accordance with Section 21 of the franchise agreement, on or about May 21, 2012, Choice Hotels filed a demand for arbitration against the Defendants with the American Arbitration Association, seeking damages for the breach. See ECF No. 8-1 at 1 ¶ 2. On November 1, 2012 the arbitrator entered an award in the arbitration proceeding in favor of Choice Hotels in the amount of $115, 200.00 as liquidated damages. The arbitrator additionally awarded to Choice Hotels arbitration costs in the amount of $3, 000.00 ($1, 850.00 in administrative fees and $1, 150.00 as compensation for the arbitrator plus the attorney's fees of Choice Hotels). The total award of arbitration is $118, 200.00.
Over eight months later, on July 19, 2013, Choice Hotels initiated this action by filing an Application to Confirm Arbitration Award. See ECF No. 1. A summons was served on each Defendant on November 18, 2013, and Answers were due December 9, 2013. See ECF Nos. 4-6. None of the defendants filed an Answer.
On April 28, 2014 Choice Hotels moved for Clerk's entry of default for want of answer or other defense against the Defendants. See ECF No. 7. On the same date Choice Hotels moved for default judgment against the Defendants. See ECF No. 8. The deadline for filing a response in opposition was May 15, 2014. No response in opposition was filed with regard to either the Motion for Clerk's Entry of Default or the Request for Judgment by Default.
On May 21, 2014 Judge Grimm granted in part and denied in part Choice Hotels' motion for Clerk's entry of default. Judge Grimm found Choice Hotels had not properly served Defendant Urmila Amin and, further, it was unclear whether Defendant Vishal, Inc. was properly served. Judge Grimm extended the deadline to June 23, 2014 for Choice Hotels to effect proper service on Urmila Amin and to either effect proper service on Vishal, Inc. or demonstrate the service already effected on Vishal, Inc. was proper. Finding Choice Hotels had properly served Defendant Vishal Amin, Judge Grimm granted Choice Hotels' request for entry of default as to this Defendant and directed the Clerk to enter Vishal Amin's default. See ECF No. 10. The following day, May 22, 2014, the Clerk's entry of default as to Vishal Amin was docketed. See ECF No. 11.
On June 23, 2014 Choice Hotels moved for an extension of time to effect service on Vishal, Inc. and Urmila Amin, see ECF No. 13, which Judge Grimm granted two days later, see ECF No. 14. A summons was served on Defendant Vishal, Inc. and on Defendant Urmila Amin on July 21, 2014. See ECF Nos. 15-16. Neither Vishal, Inc. nor Urmila Amin filed an Answer which was due August 11, 2014. Id.
Choice Hotels moved for Clerk's entry of default for want of answer as to Defendants Vishal, Inc. and Urmila Amin on August 18, 2014. See ECF No. 17. On October 6, 2014 the Clerk's entry of default as to Defendants Urmila Amin and Vishal, Inc. was docketed. See ECF No. 18.
Federal Rule of Civil Procedure 55(b) governs the entry of default judgments. Pursuant to Rule 55(b), the clerk may enter a default judgment "[i]f the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, " and the defendant is in default for failing to appear and is "neither a minor nor an incompetent person." Fed.R.Civ.P. 55(b)(1). Additionally, when a defendant is an individual, the plaintiff must certify or declare to be true under penalty of perjury whether the defendant is in military service. 50 U.S.C. app. § 521(b)(1) ("In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit-(A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.").
The entry of default judgment is a matter within the discretion of the Court. SEC v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005) (citing Dow v. Jones, 232 F.Supp.2d 491, 494 (D. Md. 2002)). As the Court noted in Disney Enterprises, Inc. v. Delane, 446 F.Supp.2d 402 (D. Md. 2006), "[t]he United States Court of Appeals for the Fourth Circuit has a strong policy that cases be decided on the merits.'" Id. at 405 (quoting United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993)). Nonetheless, "default judgment is available when the adversary process has been halted because of an essentially unresponsive party.'" Id. (quoting Lawbaugh, 359 F.Supp.2d at 421).
In determining whether to award a default judgment, the Court takes as true the wellpleaded factual allegations in the complaint, other than those pertaining to damages. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) ("The defendant, by his default, admits the plaintiff's well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established." (citation and internal quotation marks omitted)); see Fed.R.Civ.P. 8(b)(6) ("An allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied."). It remains, however, "for the court to determine whether these unchallenged factual allegations constitute a legitimate cause of action." Agora Fin., LLC v. Samler, 725 F.Supp.2d 491, 494 (D. Md. 2010); 10A Charles Alan Wright et al., Fed. Prac. and Proc. Civ. § 2688 (3d ed. 1998) ("[L]iability is not deemed established simply because of the default... and the court, in its discretion, may ...