Commission Express v. Briggs

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
DERRICK SHAWN BRIGGS,
Debtor.
____________________________
COMMISSION EXPRESS, INC.,
Plaintiff,
v.
DERRICK SHAWN BRIGGS,
Defendant.
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Case No. 08-00298
(Chapter 7)
Adversary Proceeding No.
08-10022
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER RE MOTION FOR DEFAULT JUDGMENT
This addresses the plaintiff’s motion pursuant to Rule 7055
of the Federal Rules of Bankruptcy Procedure for the entry of
default and the entry of a default judgment against the
defendant. 	Proper service of the Complaint and the Summons were
made on the defendant, and the defendant has not filed an answer,
a motion, or other responsive paper within the time allowed. 	The
plaintiff gave proper notice of the motion. 	The complaint sets
forth a sufficient basis for declaring the debt to the plaintiff
The Memorandum Decision and Order below is hereby signed.
Dated: October 28, 2008.
______________________
S. Martin Teel, Jr.
U.S. Bankruptcy Judge
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to be nondischargeable on at least one of the bases alleged. 	The
amount recoverable should be susceptible of proof via affidavits.
The plaintiff has not alleged that the defendant failed to appear
in even some informal fashion such as not to be entitled under
Fed. R. Civ. P. 5(a) and 55(b) to notice of such affidavits or,
if it becomes necessary, an evidentiary hearing to fix damages.
See H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe,
432 F.2d 689, 691-92 (D.C. Cir. 1970). 	Where a defendant has
appeared at least informally such that he has, pursuant to H.F.
Livermore Corp., appeared for purposes of being entitled to
notice of the motion for default judgment, it would appear that
the fixing of damages cannot be entirely ex parte. 	See In re
Fraidin, 34 Fed. Appx. 932 (4th Cir. 2002) (defendant who had
liability determined against him by way of default judgment for
discovery abuses nevertheless was entitled to notice of damages
hearing); 10A C HARLES A LAN WRIGHT & A RTHUR R. MILLER , FEDERAL PRACTICE AND
PROCEDURE § 2688 (3d ed. 2008) (“When [a] defendant contests the
amount of the claim, a full hearing may be required on the issue
of damages, since a default does not concede the amount
demanded.” (footnote omitted)). 	Rule 55(b) itself does not use
the term ex parte. 	Accordingly, it is
ORDERED that the plaintiff shall have a judgment by default
against the defendant declaring the debt to the plaintiff to be
nondischargeable under 11 U.S.C. § 523(a), and fixing the amount
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3	O:\TEEL\Judge Temp Docs\Commission Express v Briggs (In re Briggs) Mem Dec & Order re Default Mtn_v2.wpd
of the debt. 	It is further
ORDERED that the plaintiff may file affidavit(s) that it
represents establish the amount of the debt, and the defendant
shall file any opposition to the plaintiff’s affidavit(s) within
14 days of filing of the affidavit(s). 	It is further
ORDERED that if the court does not decide the matter on
affidavit(s), an evidentiary hearing on damages will be held on
December 3, 2008, at 9:30 a.m.
[Signed and dated above.]
Copies to: All counsel of record; debtor; debtor’s counsel of
record in the main case.
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