United States District Court, D. Maryland, Southern Division
REPORT AND RECOMMENDATION
CHARLES B. DAY UNITED STATES MAGISTRATE JUDGE.
Report and Recommendation addresses Plaintiff's Motion
for Default Judgment (ECF No. 11) (the “Motion”).
Plaintiff United States of America (“Plaintiff”)
filed a complaint against Defendant Cynthia Washington
(“Defendant”), alleging Defendant failed to repay
a signed promissory note executed to secure a Direct
Consolidation loan from the U.S. Department of Education. ECF
No. 1. Pursuant to 28 U.S.C. Section 636 and Local Rules 301
and 302, the Honorable Theodore D. Chuang referred this
matter to the undersigned for the making of a Report and
Recommendation concerning default judgment and/or damages.
For the reasons stated herein, I recommend that the Court
DENY the Motion without prejudice.
filed its Complaint on June 6, 2017 (ECF No. 1), seeking an
award of $79, 016.77 plus interest on the principal at $6.89
per day until the date of judgment. On June 8, 2017,
Plaintiff sent Defendant a waiver informing her that if she
signed the waiver of service, she would have until August 7,
2017 to file a timely Answer to the Complaint. ECF No. 4.
Plaintiff attached a copy of the Complaint to the Waiver.
Id. On July 7, 2017, Defendant signed the form
waiving service of summons in this action, and she returned
it to Plaintiff. Id. Defendant failed to file an
Answer or otherwise respond to the Complaint. Therefore, on
October 10, 2017, the Clerk entered default against
Defendant. ECF No. 10. Thereafter, Plaintiff filed this
Motion; Defendant has filed no response.
Standard of Review
of the Federal Rules of Civil Procedure governs entries of
default and default judgments. Rule 55(a) provides that
“[w]hen a party . . . has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party's default.”
Fed.R.Civ.P. 55(a). When considering a motion for default
judgment, the Court accepts as true all well-pleaded factual
allegations in the complaint as to liability. See Ryan v.
Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir.
2001) (citation omitted); see also 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.”).
However, the entry of “default is not treated as an
absolute confession by the defendant of his liability and of
the plaintiff's right to recover.” Ryan,
253 F.3d at 780 (citations omitted). The Court “must,
therefore, determine whether the well-pleaded allegations in
[the] complaint support the relief sought.”
Id.; 10A Wright, Miller & Kane, Federal Practice
and Procedure § 2688.1 (4th ed. 2017) (“Liability
is not deemed established simply because of the default. . .
[and] the court, in its discretion, may require some proof of
the facts that must be established in order to determine
Fourth Circuit has repeatedly expressed a “strong
policy that cases be decided on the merits.” See,
e.g., United States v. Shaffer Equip. Co., 11
F.3d 450, 453 (4th Cir. 1993); Colleton Prepatory Acad.,
Inc. v. Hoover Univ., Inc., 616 F.3d 413, 417 (4th Cir.
2010). However, default judgment “may be appropriate
when the adversary process has been halted because of an
essentially unresponsive party.” S.E.C. v.
Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005).
plaintiff establishes liability, the Court then turns to the
determination of damages. Fed. Prac. & Proc. Civ. §
2688, n.6 (4th ed.). In determining damages, the Court cannot
accept Plaintiff's factual allegations as true and must
make an independent determination. See Lawbaugh, 359
F.Supp.2d at 422. Rule 54(c) of the Federal Rules of Civil
Procedure limits the type and amount of damages that may be
entered as a result of a party's default, stating that a
“default judgment must not differ in kind from, or
exceed in amount, what is demanded in the pleadings.”
Fed.R.Civ.P. 54(c). While the Court may conduct an
evidentiary hearing to determine damages, it is not required
to do so. Monge v. Portofino Ristorante, 751
F.Supp.2d 789, 795 (D. Md. 2010) (citing Pentech Fin.
Servs., Inc. v. Old Dominion Saw Works, Inc., No.
6:09cv00004, 2009 WL 1872535, at *2). The Court may rely
instead on affidavits or documentary evidence of record to
determine the appropriate sum. See, e.g., Monge, 751
F.Supp.2d at 795 (citing cases in which damages were awarded
after a default judgment and without a hearing, based on
affidavits, printouts, invoices, or other documentary
noted above, Defendant waived service of summons on June 8,
2017, but failed to plead or otherwise assert a defense. ECF
No. 4. Accordingly, all of Plaintiff's factual
allegations not pertaining to damages are deemed admitted.
Ryan, 253 F.3d at 780. Taking the well-pleaded facts
from the Complaint as true, Defendant executed a promissory
note to secure a Direct Consolidation Loan from the
Department of Education. ECF No. 1, p. 1. Plaintiff alleges
that Defendant owes a student-loan debt of $79, 016.77 plus
ongoing interest. For the reasons stated below, it is my
recommendation that the Motion be denied without prejudice.
Court does not have reliable documents on which to base its
analysis. Plaintiff has submitted a copy of the signatory
page of the “Application and Promissory Note” in
conjunction with an affidavit by Christopher Bolander, a loan
analyst for the Department of Education. ECF No. 1-2.
Plaintiff relies solely on the affidavit as the basis for the
terms that Defendant allegedly agreed to and has subsequently
broken, giving rise to this suit. ECF No. 1, p. 1-2. However,
Plaintiff fails to provide the Court with a completed
Application and Promissory Note evidencing Defendant's
assent to the amount alleged. Without the completed
Application and Promissory Note, the documents provided are
not acceptable evidence that the parties have agreed to be
bound to the terms of the loan application. The Court cannot
appropriately deem Defendant to have consented to any of the
terms Plaintiff alleges in its Complaint. Without proof of
Defendant's assent to the terms, Plaintiff's case has
fails to provide sufficient explanation for why a copy of the
complete record was not provided to the Court. As stated
above, Plaintiff provided the Court with a copy of the
signatory page of the Application and Promissory Note, with
Plaintiff asserting that the signatory page “was the
only page received and possessed by the Department regarding
the loan.” ECF No. 1, p. 1. Instead, Plaintiff provided
the Court with a blank copy of the form promissory note that
Plaintiff alleges Defendant filled out in securing a loan.
Id. at 1-2. Plaintiff fails to provide the Court
with any specific information about the Application and
Promissory Note, including amount loaned and interest rate
agreed to. Additionally, Plaintiff requests that the Court
simply accept Mr. Bolander's statements concerning
Defendant's indebtedness and repayment amounts. Mr.
Bolander certifies that the U.S. Department of Education has
records reflecting the amounts owed, the interest accrued,
and the amount Defendant has repaid. ECF No. 1-2. The Court
questions why Plaintiff did not simply provide said U.S.
Department of Education records for review.
foregoing reasons, I recommend Plaintiff's Motion be
DENIED without prejudice. I recommend that Plaintiff be given
thirty (30) days to correct the deficiencies in the Motion by
providing the Court with a copy of the Federal Direct
Consolidation Loan Application and Promissory Note signed and
dated by Defendant, evidencing Defendant's assent to the
amount and terms that Plaintiff claims. If the documents are
provided, I recommend that the Court grant Plaintiff's
Motion and ...