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Utsch's Marina, Inc. v. Motor Vessel

August 13, 2010

UTSCH'S MARINA, INC., PLAINTIFF,
v.
MOTOR VESSEL, A "2000" GRADY WHITE, MODEL NO. 232, AND BEARING HULL IDENTIFICATION NO. NTLCZ16H900, HER TWIN- EVINRUDE ENGINES BEARING SERIAL NO(S). G04807334 AND G04815496, HER TACKLE, APPAREL: & HER APPURTENANCES IN REM & THOMAS P. SELLERS IN PERSONAM DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

MEMORANDUM & ORDER

THIS MATTER having come before the Court on the motion of Plaintiff, Utsch's Marina, Inc., for default judgment against Defendant, Thomas P. Sellers, with respect to Defendant's contractual responsibility to pay for necessaries furnished to his vessel by Plaintiff; and

Plaintiff averring that on or around April 28, 2004, Defendant entered into a contract with Plaintiff in which Plaintiff agreed to service and furnish supplies for Defendant's vessel; and

Plaintiff averring that it provided the agreed-upon services and supplies in the amount of $23,269.05, which Defendant has not paid; and

The Court finding that Plaintiff has provided documentation to support the compensatory amount of its claim, see Trucking Emples. of N. Jersey Welfare Fund, Inc. v. M.J. Paquet, Inc., 2009 U.S. Dist. LEXIS 41108, at **6-7 (D.N.J. May 11, 2009) (noting that quantum of damages may be established without further proof if the amount of damages are liquidated or discernible by mathematical computation); and

Federal Rule of Civil Procedure 55 providing that obtaining a default judgment is a two-step process --- first, when a defendant has failed to plead or otherwise respond, a plaintiff may request the entry of default by the Clerk of the Court, Fed. R. Civ. P. 55(a), and second, after the Clerk has entered the party's default, a plaintiff may then obtain a judgment by default by either (1) asking the Clerk to enter judgment, if the judgment is a sum certain, or (2) applying to the Court, Fed. R. Civ. P. 55(b); and

Plaintiff having requested the entry of default by the Clerk, and the Clerk having entered default on January 5, 2010; and

Plaintiff having filed a motion for default judgment pursuant to Rule 55(b); and

The Court noting that "entry of a default judgment is left primarily to the discretion of the district court," Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984), and "that the party making the request is not entitled to a default judgment as of right," Franklin v. Nat'l Mar. Union, 1991 U.S. Dist LEXIS 9819, at **3-4 (D.N.J. 1991) (citation and internal quotation marks omitted); and

The Court finding that because Defendant has failed to appear and respond to Plaintiff's charges in this matter, Defendant is deemed to have admitted the conduct alleged in Plaintiff's complaint, see Comdyne I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990) ("A consequence of the entry of a default judgment is that the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." (citation and internal quotation marks omitted)); and

The Court finding that Plaintiff would be prejudiced if denied default judgment because it has no other means of vindicating its claims against Defendant, who has not responded, submitted any meritorious defenses, or otherwise offered any excusable reasons for his default, see Peterson v. Boyarsky Corp., 2009 U.S. Dist. LEXIS 30967, at *12 (D.N.J. Apr. 8, 2009); and

The Court having found that Plaintiff is entitled to judgment in its favor; and

The Court having already granted an Ex Parte Motion for Interlocutory Sale of the vessel on January 14, 2010; and

Plaintiff having successfully credit bid for the vessel, in the amount of $18,000, at the sale ...


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