United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Nick John Marmaras seeks default judgment against Defendant
Panagiotis Marafatsos, who has not appeared in this action.
But Plaintiff has not adequately pled his claims.
Accordingly, upon consideration of the briefing,
relevant legal authorities, and the record as a whole, in an
exercise of its discretion the Court DENIES WITHOUT
PREJUDICE Plaintiff's  Motion for Default
for Failure to Appear, which in essence is a motion for
brief recitation of the pertinent allegations is necessary in
light of the Court's disposition today. Plaintiff and
Defendant are the two members of a California limited
liability corporation entitled King Greek, LLC. Compl., ECF
No. 1, ¶¶ 2, 3, 14. That entity was formed for the
purpose of “turn[ing] [a] theater play script about
[Plaintiff's] life into a movie.” Id.
¶¶ 11-12. Initially Plaintiff held a 60% membership
interest in King Greek, LLC, while Defendant held the
remaining 40%. Id. ¶ 14.
made a series of payments to Defendant to facilitate their
movie project, but the latter did not use those funds for the
designated purposes. See, e.g., id.
¶¶ 18, 32-34. Defendant attempted to redirect
potential investors to his own, alternative projects, and
failed to comply with a number of other obligations to King
Greek, LLC, and Plaintiff, as well. See generally
Id. ¶¶ 15-38. Of particular note, Defendant
omitted King Greek, LLC, and Plaintiff when registering the
movie script in Defendant's own name. Id. ¶
35. In addition, the parties agreed to adjust the allocation
of membership interest in King Greek, LLC, “but
[Defendant] kept on finding excuses to delay the legal
transfer of the additional 20% membership interest to
[Plaintiff].” Id. ¶¶ 21-23.
Plaintiff's three-count Complaint filed on May 26, 2018,
Plaintiff seeks damages and other relief for copyright
infringement, breach of contract, and breach of fiduciary
duty. Compl., ECF No. 1, ¶¶ 1, 44-60 & Prayer
for Relief. At the Court's prompting, Plaintiff filed
proof of service on August 30, 2018, which indicated that
Defendant was served on June 9, 2018. The deadline for his
answer or other response to the Complaint had come and gone,
and still Defendant had not appeared. Again the Court ordered
Plaintiff to take further action, at the risk of dismissal of
the case without prejudice. Plaintiff sought default, which
the Clerk of Court entered on November 27, 2018. Default, ECF
No. 10. Again at the Court's prompting, Plaintiff then
moved for default judgment.
Rule of Civil Procedure 55(a) provides that the Clerk of the
Court must enter a party's request for a default
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise.”
Fed.R.Civ.P. 55(a). After a default has been entered by the
Clerk, a party may move the court for a default judgment.
determination of whether default judgment is appropriate is
committed to the discretion of the trial court.”
Int'l Painters & Allied Trades Indus. Pension
Fund v. Auxier Drywall, LLC, 531 F.Supp.2d 56, 57
(D.D.C. 2008); 10A Charles Alan Wright et al., Federal
Practice & Procedure Civil § 2685 (4th ed.). Factual
allegations in a well-pleaded complaint against a defaulting
defendant are taken as true. Int'l Painters &
Allied Trades Indus. Pension Fund v. R.W. Amrine Drywall Co.,
Inc., 239 F.Supp.2d 26, 30 (D.D.C. 2002).
the court is satisfied that the plaintiff is entitled to a
default judgment, the court must independently determine the
amount of damages to be awarded, unless the amount of damages
is certain. Int'l Painters & Allied Trades Indus.
Pension Fund v. Davanc Contracting, Inc., 808 F.Supp.2d
89, 94 (D.D.C. 2011) (Kollar-Kotelly, J.) (citing Adkins
v. Teseo, 180 F.Supp.2d 15, 17 (D.D.C.
2001)). In making an independent determination,
“the court may rely on detailed affidavits or
documentary evidence.” Breaking the Chain Found.,
Inc. v. Capitol Educ. Support, Inc., 589 F.Supp.2d 25,
28 (D.D.C. 2008) (Kollar-Kotelly, J.) (quoting
Adkins, 180 F.Supp.2d at 17) (internal quotation
court may conduct [a] hearing[ ] . . . when, to enter or
effectuate judgment, it needs to: (A) conduct an accounting;
(B) determine the amount of damages; (C) establish the truth
of any allegation by evidence; or (D) investigate any other
matter.” Fed.R.Civ.P. 55(b)(2); see also Jackson v.
Beech, 636 F.2d 831, 835 (D.C. Cir. 1980) (“[A]
court must hold a hearing on damages before entering a
judgment on an unliquidated claim even against a defendant
who has been totally unresponsive.”); Progressive
Nursing Staffers of Virginia, Inc. v. Capitol Med. Ctr.,
LLC, Civil Action No. 11-2160 (JDB), 2013 WL 140251, at
*2 (D.D.C. Jan. 11, 2013) (same).
Court is satisfied that it has federal-question jurisdiction
over Count I under the Copyright Act, 17 U.S.C. § 101,
et seq. 28 U.S.C. § 1331; 17 U.S.C. §
501(b) (providing cause of action for copyright
infringement). The state law claims in Counts II and III
require separate jurisdictional grounds.
has not invoked diversity jurisdiction. The parties appear to
have diverse citizenship, however, and the breach of contract
claim implicates an amount in controversy exceeding $75, 000,
though the breach of fiduciary duty claim does not.
See 28 U.S.C. § 1332; Compl., ECF No. 1,
¶¶ 2, 3, 56, 60 (alleging parties' addresses in
two different states, contract damages of $100, 000, and
fiduciary duty damages of $70, 000). Nevertheless, the
amount-in-controversy is considered on a claim-by-claim
basis. 13D Charles Alan Wright et al., Federal Practice &
Procedure Jurisdiction § 3567 (3d ed.) ...