Bradley v. Wells Fargo Bank, N.A.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Bradley
v. Civil No. 12-cv-127-PB
Wells Fargo Bank, N.A. et al.
REPORT AND RECOMMENDATION
Jeffrey Bradley brought suit against Wells Fargo Bank, N.A.
and Ocwen Loan Servicing, LLC (collectively the “trial
defendants”), alleging claims for constructive eviction,
conversion, and intentional infliction of emotional distress.
In an amended complaint, filed on January 29, 2015, Bradley also
named Legacy Landscape Company (“Legacy”) and Mark Murray as
defendants (collectively the “defaulting defendants”). Doc. no.
111. When Legacy and Murray failed to appear, default was
entered against them. Doc. nos. 135 & 141.
In October 2015, a jury trial was held with the trial
defendants. During the trial, the district judge granted the
trial defendants’ motion for judgment as a matter of law as to
Bradley’s intentional infliction of emotional distress claim.
At the conclusion of trial, the jury found for Bradley as to his
wrongful eviction and conversion claims and awarded $15,000 for
each claim.
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Now, after trial, Bradley moves for default judgment
against the defaulting defendants. Doc. no. 222. Bradley
contends that his “complaint states claims for which relief may
be granted” and is entitled to $118,742 in damages plus
attorney’s fees. Doc. no. 221-1. Bradley arrives to his
damages amount based on his own testimony at trial “about the
personal property he lost as a result of the [defaulting
defendants’] actions.” Id. at 4. A damages hearing was
conducted on December 21, 2015.
Standard of Review
After default is entered and when the amount at issue is
not a sum certain, “the party must apply to the court for a
default judgment.” See Fed. R. Civ. P. 55(b)(2). “Although a
defaulting party admits the factual basis of the claims asserted
against it, the defaulting party does not admit the legal
sufficiency of those claims.” 10 James Wm. Moore, Moore’s
Federal Practice § 55.32[1][b] (3d ed. 2013). To recover on a
motion for default judgment, “[t]he claimant must state a
legally valid claim for relief.” Id.; see also Ramos-Falcon v.
Autoridad de Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002).
Therefore, before entering default judgment, the court must
determine whether the admitted facts state actionable claims.
See Hop Hing Produces Inc. v. X & L Supermarket, Inc., No. CV
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2012-1401(ARR)(MDG), 2013 WL 1232919, at *2 (E.D.N.Y. Mar. 4,
2013); E. Armata, Inc. v. 27 Farmers Market, Inc., No. 08-5212
(KSH), 2009 WL 2386074, at *2 (D.N.J. July 31, 2009).
Discussion
As stated in the plaintiff’s motion for default judgment,
the plaintiff, in the amended complaint, “brought the same
claims against [the defaulting defendants] as the claims against
[the trial defendants].” Doc. no. 222-1 at 3. By virtue of the
default, the defaulting defendants concede the facts alleged in
the amended complaint. As discussed in the order on summary
judgment, the complaint states actionable claims against the
trial defendants. See Doc. no. 163. Thus, since the claims
against the defaulting defendants are identical to the claims
against the trial defendants, the facts alleged in the amended
complaint also state actionable claims against the defaulting
defendants.
As to damages, Bradley asks this court to award $118,742.1
Doc. no. 222. This request is sizable in light of the jury’s
October 15, 2015, verdict and collective award of $30,000 in
damages. Doc. no 218. Further, based on the nature of the
1 This amount is based on the plaintiff’s testimony during trial
“about the personal property he lost as a result of the
[d]efendants’ actions.” Doc. no. 222-1 at 4.
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amended complaint and the plaintiff’s acknowledgement that the
claims against all defendants are “the same,” it is clear that
the plaintiff is alleging joint and several liability.
“However, where liability is joint and several, consistent
damage awards on the same claim are essential.” Hitachi Med.
Sys. Am., Inc. v. Horizon Med. Grp., No. 5:07CV02035, 2008 WL
5704471, at *2 (N.D. Ohio Jan. 28, 2008) (citing Hunt v. Inter–
Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir.1985)).
Here, other than for purposes of “fairness,” the plaintiff
has offered no alternative theory of liability or cited any
authority that the damage award against the defaulting
defendants should be different than the award against the trial
defendants. In addition, with respect to attorney’s fees, the
plaintiff conceded during the hearing that he is seeking fees
against all defendants under the same legal theories and a
motion for fees is currently pending before the district judge.
Conclusion
For the foregoing reasons, the court recommends that the
motion for default judgment (doc. no. 222) be granted, and that
Legacy Landscape Company and Mark Murray be jointly and
severally liable for the $30,000 in damages awarded to the
plaintiff at trial.
Any objections to this report and recommendation must be
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filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by
objections to magistrate judge’s report are subject to review by
district court; issues not preserved by such objection are
precluded on appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 21, 2015
cc: Kristina Cerniauskaite, Esq.
Ruth A. Hall, Esq.
Terrie L. Harman, Esq.
Elizabeth Lacombe, Esq.
Alexander Bono, Esq.
Brett Messinger, Esq.
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